The Regional Court in Warsaw 2^nd Civil Division with the following ruling bench:

Presiding Judge:            Marcin Polakowski, Regional Court Judge

Judges:                            Sylwia Urbańska, Regional Court Judge

Katarzyna Waseńczuk, Regional Court Judge

having examined on 9^th November 2016 in Warsaw at the hearing in camera the case filed by the Consumer Ombudsman in the City Hall of S., acting as a group representative of the group consisting of [data of 31 group members] against (…) S.A. in W. for declaration,

Non-final decision.

1. The condition of the identical factual basis is met when the facts substantiating the existence of the legal relationship, which is the basis of the claims, are equal for all group members. The essence of the group proceedings is the commonality manifest in the demand which must be typical (common) for all claims.
2. In the court’s opinion, during the examination of the premise of the same factual basis of the claims, the circumstances which have significance for the final ruling, not any circumstances which appear under contracts, should be taken into account.
3. Article 2 (1) of the Act on Pursuing Claims in Group Proceedings explicitly refers to standardization of the amount of claims, not to standardization of claim value calculation rules. The standardization of a claim involves each member of the group, therefore the consent thereto should be expressed by all group members. The standardization of the claims should be carried out done on the grounds of common circumstances of the case, i.e. the same for all group members and simultaneously different from these which determined the separation of other groups.
4. Rendering a decision on examination of the case in group proceedings is not a directional judgment, which somewhat – in the case of finding the procedure advisable –automatically cause the necessity to render a judgment in favor of the Claimant. Before the final ruling, in the group proceedings, the court is obligated to reassess the preliminary issues, examined at the previous stages of the proceedings, which decide on the admissibility and form of judgment. Therefore, it is obvious that the reassessment includes all premises of the admissibility of group proceedings (number of members in the group, homogeneity of claims, the same or similar factual basis and the legal classification of claims). The judgment on the merits may be issued only after conclusion that the premises of admissibility are met.
5. Rendering a decision on the admissibility of group proceedings, pursuant to Article 10 (1) of the Act on Pursuing Claims in Group Proceedings, does not preclude a later ascertainment of inadmissibility of the proceedings at each stage thereof, what results in an amendment of the decision (pursuant to Article 359 CCP) and rejection of the statement of claims.
6. The optionality of the deposit in group proceedings does not mean discretion. The court shall consider all circumstances of the case in respect to advisability of application of this institution.
7. The defendant, who files a motion for deposit, should make plausible, firstly, that the action against him is obviously unfounded or the statement of claims is unlikely to be allowed, therefore it has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the cost from the opposite party impossible or significantly more difficult.

The decision has been rectified by the decision of the Regional Court in Warsaw 3^rd Civil Division of 5^th December 2016, III C 56/15.

The Regional Court in Warsaw 3^rd Civil Division in the following ruling bench:

Presiding Judge:  Joanna Kruczkowska, Regional Court Judge

Judges:  Joanna Bitner (rapporteur), Regional Court Judge, Grzegorz Chmiel, Regional Court Judge

having examined at a hearing in camera on 28^th October 2016 in Warsaw the case filed by K.K., the representative of the group, against the Housing Association (…) for the payment of the amount of PLN 1,700,667.19

1. The case on the protection of consumers appears in Article 61 § 1 CCP that determines the scope of activity of non-governmental organisations. According to Article 22¹ CC, a consumer is a natural person who performs acts in law which are not directly connected with his economic or professional activity. The aim of the activity which has no business aspect, is fundamental.
2. The status of a given person as a consumer shall be appraised at the moment of performing the act in law. The subsequent changes in the purpose of the acquired good or service shall not lead to the change of a once adopted establishment.
3. The fact of acquiring the real estate in which the business activity was subsequently led does not mean that the given person was not a consumer on the date of concluding the contract. As well, the fact that the given person runs a business or professional activity in the scope of granting a credit does not mean that he was not a consumer at the moment of concluding the contract with a bank concerning him personally.
4. The fact that the part of the Members of the Group signed the appendix to the contract does not exclude the possibility of declaring the primary version of the contract null and void. However, the issue of the existence of the legal interest in demanding such a declaration shall be assessed.
5. Claims based on an equal factual basis are claims based on the same factual basis (a sensu stricte prerequisite) or claims having common essential factual circumstances (a sensu largo prerequisite). That means that the prerequisite of the equal or the same factual basis means that the identical circumstances do not have to be the factual basis of the claim, but the significant similarity of them is sufficient. As a result, the factual basis does not have to be equal but at least the same.
6. The slight differences may exist between the individual factual basis of respective claims, nevertheless it is indispensable that the essential factual circumstances remain common for all of the claims. Such circumstances common for all of the claims are contracts concluded by the members of the group (…) containing abusive clauses, introducing the identical mechanism based on the bank’s discretion in determining the level of indebtedness of the borrower, that leads, according to the plaintiff, to the invalidity of those contracts.
7. The legal proceedings of the court regarding the examination of the admissibility of the class action are specific pre-litigation proceedings. The Court decides about the admissibility of the class action only on the basis of assessment of the lawsuit, because it makes a formal-legal appraisal on the admissibility of those proceedings. The Court is not entitled to examine the substantive prerequisites of the claim.

1. The requirement of the common factual basis of claims does not mean that all the facts of the case need to be identical for each member of the group, because always – even in the case of the same basis of the claim – there will be individual circumstances pertaining to individual members of the group. The condition of the common factual basis is met when the facts legitimising the existence of a specific legal relationship which is the basis for the claim are the same for all members of the group.
2. The examination of the admissibility of group proceedings cannot be preceded by an examination of its legitimacy, in this case the latter constituting an analysis of whether the triggering event specified in the statement of claims in reality caused the alleged financial loss, or commercials broadcast at the request of the defendant affected the entities offering motor insurance, or entities offering other insurance products, and also whether the victim of the defendant’s actions could only be persons who have the status of an insurance agent or other persons.

By the decision of 7^th March 2017, file ref. no. VI ACz 177/17 , the Court of Appeals in Warsaw reversed point 2 of the decision and referred the case for reconsideration in that extent.

1. Before issuing the decision on the admissibility of the group proceedings, the Regional Court should examine whether each of the group members is a consumer within the meaning of Article 22¹ CC.

The Regional Court in Warsaw I Civil Division in the following ruling bench:

Ewa Ligoń-Krawczyk, Regional Court Judge

Rafał Wagner, Regional Court Judge

Jacek Bajak, Regional Court Judge

having examined on 19^th October 2016 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in S. W. against Towarzystwo (…) S.A. with its registered office in W. for payment,

decides to:

I. publish an announcement in the ‘(…)’ daily newspaper on the commencement of the group proceedings with the following content

The Court of Appeals in Warsaw 3rd Labour, Employment and Social Securities Division in the following ruling bench:

Presiding Judge:         Renata Szelhaus (rapporteur), Court of Appeals Judge

Judges:                          Anna Kubasiak, Court of Appeals Judge, Genowefa Glińska, Court of Appeals Judge

having examined at the hearing in camera the case filed by R.L. as the representative of the group of: (…) against the State Treasury – the Minister for Internal Affairs in Warsaw for payment

following the State Treasury – the Minister for Internal Affairs’ substituted by the General Counsel to the Republic of Poland in Warsaw motion for supplementing the decision of the Court of Appeals in Warsaw 3rd Labour, Employment and Social Securities Division of 19th August 2016, file ref. no. III APz 16/16

1. The conditions of the admissibility of a class action are following: the number of group members (at least 10); homogeneity of their claims, the specific category of the case (consumer protection, cases for liability for a hazardous product and tortious liability), common factual basis of claims, standardization of the value of claims at taking the common factual basis of claims into account.
2. It is obligatory for a court to consider if the claims are indeed homogenous and based on the same or equal factual basis and whether they belong to one of the categories of claims listed in Article 1 (2) of the Polish Act on Pursuing Claims in Group Proceedings. Only when all these conditions are met cumulatively is it possible to hear the case in group proceedings. A failure to comply with one of these conditions makes it impossible to open group proceedings and leads to rejection of the statement of claims in relation therewith. Optimization of the procedural economics does not belong to the conditions of admissibility of group proceedings.

1. The terms without a legal definition in Act on Pursuing Claims in Group Proceedings such as homogeneity of the claims, the common factual basis of claims, the standardisation (equalisation) of claims should be construed in accordance with the goals of the class action proceedings. Undoubtedly, the cumulation of many persons in single proceedings constitutes the essence of group proceedings. Such a cumulation is justified due to the procedural economy and purposelessness of conducting many similar proceedings.
2. The difference in standard contract terms and templates binding the members of the group with the defendant, the mode of conclusion of a contract with either the insurer or a dealer, performing the information obligation in another way are not prerequisites which would substantiate deeming the claims impossible to be recognised as being based on the common factual basis. Moreover, differences in the amount of premiums and the frequency of payments do not amend such assessment. The claims of members of the group are based on a common factual basis. i.e. a clause in the agreement which gave the defendant the basis to collect redemption fees which in the opinion of the group members were glaringly extortionate.