The Court of Appeal in Warsaw, 5^th Civil Division, composed of:

Presiding Judge:           Aleksandra Kempczyńska, Judge of the Court of Appeal (Judge – Rapporteur)

Judges:                            Marta Szerel, Judge of the Court of Appeal;

Bernard Chazan, Judge of the Court of Appeal

having examined on 11^th February 2021 in Warsaw at a session in camera the case brought by the Municipal Consumer Ombudsman in O. against Bank (…) Joint-Stock Company in W. for payment

as a result of the complaint of both parties against the decision of the Regional Court in Warsaw dated 1^st April 2020, ref. no. IV C 1348/19,

1. A case in a group proceeding shall be heard by a court of three professional judges in accordance with Article 3 Section 2 of the Act on Pursuing Claims in Group Proceedings. In cases heard in group proceedings there is inapplicable Article 15 zzs¹ Section 1 Point 4 of the Act of 2^nd March 2020 on Special Arrangements Relating to the Prevention, Counteracting and Combating COVID-19, Other Infectious Diseases and Emergencies Caused by Them, during the period of the epidemic emergency or the state of epidemics declared due to COVID-19 and within one year after the last one is revoked, according to which the court shall adjudicate with a single judge only in cases adjudicated according to the provisions of the Code of Civil Procedure. Group proceedings are conducted in accordance with the provisions of the Act on Pursuing Claims in Group Proceedings, and the fact that, in accordance with Article 24 Section 1 of that Act, the provisions of the Code of Civil Procedure apply to the extent not regulated therein, is irrelevant. This is because the composition of the court hearing the case in group proceedings is directly regulated in the Act on Pursuing Claims in Group Proceedings, hence the reference to the provisions of the Code of Civil Procedure with regard to the composition of the court is not applicable.

The Court of Appeal in Warsaw, 6^th Civil Division, composed of:

Presiding Judge:           Beata Waś, Judge of the Court of Appeal

having examined on 16^th November 2022 in Warsaw at a session in camera the case brought by A. D. as a representative of a group against the State Treasury – Council of Ministers, Minister of Health, Minister of Internal Affairs and Administration for determination

as a result of the respondent’s complaint against the decision of the Regional Court in Warsaw dated 27^th April 2022, ref. act XXV C 136/21,

1. Claims based on an identical factual basis are claims that are based on the same factual basis (premise sensu stricto) or claims whose material facts are common (premise sensu largo). The existence of insignificant differences between individual bases of claims does not preclude the possibility of asserting claims in this procedure, but it is nevertheless necessary that material facts justify the demand common to all claims. The requirement of the same factual basis for the claims does not mean that all the facts of the case must be identical for each group member, since there will always – even in the case of the same cause of action – be individual circumstances pertaining to individual group members. The condition of an identical factual basis is met when the facts justifying the existence of the specific legal relationship that is the basis of the claims are the same for all group members. “This is not prevented by the existence of other facts that fall within the factual basis of the action, such as the nature of individual claims, their maturity or amount. The essence of group proceedings is commonality manifested in the demand, which must be typical (common) to all claims. The indicated condition means that the legal or factual situation of the members of the group must be the same, while the asserted claim must be of one type (homogeneity of claims), because only then it is possible to make a common claim.”
2. From the purposive interpretation of Article 16 Section 1 of the Act on Pursuing Claims in Group Proceedings, it follows that in cases other than those involving monetary claims, plausibility is sufficient to establish a member’s membership in the group.
3. Since a demand for a determination of liability is not the same as a demand for an award of benefits, the court must take into account the dissimilarities between these claims and, with this in mind, assess whether the conditions for recognizing an action in group proceedings are met. If, on the other hand, the circumstances of the damage are so different that it would be inappropriate to evaluate them in a group proceeding, the likelihood that such damage occurred should then be considered sufficient.

The Regional Court in Warsaw, 3^rd Civil Division, composed of:

Presiding Judge:               Rafał Schmidt, Regional Court Judge

having examined on 10^th December 2021 in Warsaw, at a session in camera, the case brought by (…) limited liability company with its registered office in P. against the State Treasury – President of the Council of Ministers and the State Treasury – Minister of Health

1. However, the application of Article 417 of the Civil Code, as in effect prior to 1^st September 2004, must take into account the Constitutional Court’s judgment of 4^th December 2001, SK 18/00 (OTK 2001, No. 8, item 256), which ruled that Article 418 of the Civil Code is incompatible with Article 77 Section 1 of the Polish Constitution, and that Article 417 of the Civil Code, understood to mean that the State Treasury is liable for damage caused by the unlawful action of a state official in performing an act entrusted to him, is compatible with Article 77 Section 1 of the Polish Constitution. The underlying premise of this judgment was that the indicated provision of the Constitution of the Republic of Poland establishes a norm that ensures everyone’s right to compensation for damage caused by the unlawful action of a public authority. However, the content of Article 77 Section 1 of the Constitution of the Republic of Poland is so vague that it does not provide a basis for deriving civil law claims from it. Therefore, it is reasonable to indicate Article 417 of the Civil Code in conjunction with Article 77 of the Polish Constitution as the legal basis.
2. The compensation claim that arises on the part of shareholders in the event of loss of share value due to bankruptcy is a lucrum cessans type of compensation claim, i.e. compensation for loss of the right to dividends. Shareholders, as a result of the bankruptcy (and consequently, during the bankruptcy proceedings), have (theoretically) lost their right to dividends. By contrast, the loss of share value is de facto damage to the company, not to the shareholders. The legal construction of the joint-stock company and the resulting indirect participation of the shareholder in its activities thus determine, among other things, that the damage caused to the company cannot at the same time be considered a damage suffered by the shareholder.

The Regional Court in Warsaw, 25^th Civil Division, composed of:

Presiding Judge:               Anna Pogorzelska, Regional Court Judge

having examined on 7^th July 2022 in Warsaw at a session in camera the case of a group action brought by the Poviat Consumer Ombudsman in the Poviat (…) against (…) Joint Stock Company with its registered office in W. for payment

regarding determination of the composition of the group

The Court of Appeal in Warsaw, 5^th Civil Division, composed of:

Presiding Judge:               Robert Obrębski, Judge of the Court of Appeal

having examined on 17^th February 2022 in Warsaw at a hearing a case brought by the group representative the Municipal Consumer Ombudsman in S. acting on behalf of R. L., Z. A., A. B., L. S., D. I., A. F., E. B., S. B., W. G., J. K., I. B., P. R., M. C., A. K., J. P., R. D., L. I., I. P., A. N., R. S., E. Z., E. D., K. B., L. D., J. G., A. K., B. K., R. K., D. K., K. M., W. P., M. M., J. W., W. W., D. B., M. J., K. K., E. K. and P. N. against (…) Life Insurance Company Joint-Stock Company in W. (formerly (…) Life Insurance Company Joint-Stock Company in W.) for the determination

The Court of Appeal in Warsaw, 5^th Civil Division, composed of:

Presiding Judge:                Robert Obrębski, Judge of the Court of Appeal

having examined on 29^th June 2021 in Warsaw at a session in camera the case brought by the Municipal Consumer Ombudsman in S. against (…) Insurance Company Joint-Stock Company with its registered office in W. for determination

as a result of the defendant’s appeal against the judgment of the Regional Court in Warsaw dated 14^th December 2020, ref. no. II C 222/16,

1. In group proceedings, an action to establish the liability of the defendant in a case for a monetary claim arising from an act constituting a single event (Article 2 Section 3 in conjunction with Article 1 Sections 1 and 2) is also permissible in a situation where the premise of the occurrence of the damage and its amount depends on the individual factual circumstances of the individual members of the group. The court is of the opinion that the purpose of this stage of the proceedings was in no way to examine the legitimacy of the claim made on the grounds of the defendant’s liability for damages. Indeed, it is not permissible for the court at the stage of preliminary examination of the admissibility of the examination of the claim to refer directly to the assessment of the merits of the claim in the form of conducting evaluative considerations on the circumstances justifying the existence and type of, for example, a causal link between the plaintiffs’ damage and the defendant’s behavior.
2. In addition, attention should be drawn to the need for a purposive interpretation of Article 1 of the Act on Pursuing Claims in Group Proceedings. Undoubtedly, the intention of the legislator was to make it easier (and not more difficult) for consumers, or persons who have suffered damage in connection with a dangerous product or a tort, to pursue their claims. Thus, the interpretation of the provisions of the Act on Pursuing Claims in Group Proceedings should be made in such a way as to facilitate the pursuit of such claims by group members.