Non-final decision.

1. The notion of the “claim”, used in Article 1 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings appears there in the meaning of a procedural demand. It does not occur in the substantive law meaning, by which one should exclusively understand the possibility of demanding a certain person to act in a specific manner.

The Regional Court in Warsaw, 24^th Civil Division, in the following ruling bench:

Presiding Judge: Paweł Pyzio, Regional Court Judge

Judges: Agnieszka Bedyńska-Abramczyk, Regional Court Judge, Jacek Tyszka, Regional Court Judge

having examined on 2^nd April 2015 in Warsaw the case filed by the District Consumer Ombudsman (…) against (…) joint stock company with the registered office in W. for payment,

decides to:

1. reverse the decision of 5^th March 2015;
2. order the following announcement in the (…) daily

1. The factual basis of the dispute is a set of facts substantiating the claimant’s demand – this basis must include the facts substantiating the legal relations being the object of the dispute above all else. To substantiate the homogeneity of the factual basis, an indication of the event in the form of the broadcasting of advertisements, subsequently recognised to be an act of unfair competition by another court was sufficient.

1. We are dealing with “the same” (identical) factual basis of the pursued claims when the identicalness of factual circumstances takes place and the legal protection is pursued by the participants of one event, meaning that there is a link based on the fact that the same event caused the damage. The notion of “factual basis” should be understood as a specified set of factual status elements which is invoked in order to prove the claims.

The decision was reversed by the decision of the Regional Court in Warsaw 24^th Civil Division dated 2^nd April 2015, file ref. no. XXIV C 554/14.

The Regional Court in Warsaw, 24^th Civil Division, in the following ruling bench:

Presiding Judge:         Paweł Pyzio, Regional Court Judge

Judges:                         Agnieszka Bedyńska,  Regional Court Judge, Jacek Tyszka, Regional Court Judge

having examined on 5^th March 2015 in Warsaw the case filed by the Poviat Consumer Ombudsman (…) against (…) joint stock company with the registered office in W. for payment,

decides to

1. order the following announcement in newspaper (…)

1. Fulfilling the precondition of the homogeneity of claims pursued by members of the group in principle requires all claimants (members of the group) to request the granting of legal protection in the same form, and therefore it requires all claimants to raise the same demand. Thus, it is fitting to draw attention to the fact that in the assessment of the Court of Appeals in this composition, homogeneity of claims mentioned in Article 1.1 of the Act on Pursuing Claims in Group Proceedings undoubtedly refers to procedural claims whereas not to substantive law claims. The legislator did not at all make the possibility of pursuing a claim in group proceedings dependent on its being based on the same substantive law basis.

1. The Act on Pursuing Claims in Group Proceedings does not render the deposit in group proceedings dependent on demonstrating a real concern for the ineffectiveness of the potential enforcement of the costs in the event they are awarded from the claimant to the defendant.

1. Members of a housing association are consumers in the scope of the legal relations between them and the housing association resulting from agreements and bylaws containing illicit contract clauses.
2. In spite of the fact that only one of the spouses made payments, the other of them is entitled to demand a return of interests on the paid amounts of valorization or a return of penal interests on unduly collected performance (valorization amounts).
3. The housing association cannot refuse to admit a purchaser of the expectancy right to ownership of a separate residential unit as a member to the housing association.

1. The given entity does or does not have the capacity to be a party to legal proceedings. The capacity to be a party to the proceedings cannot be divided and does not depend on territorial competence of the given entity. A district (municipal) consumer ombudsman has the capacity to be a party to group proceedings even when persons from outside of their competence area join the group.

1. Article 417 of the Polish Civil Code applies when a damage occurs in connection with exercising public authority which extends to legal relationships where a local government unit appears in a superior position, simultaneously being capable of authoritatively shaping the rights and obligations of the other entity as well as applying the means of coercion in order to guarantee performance of these rights or obligations. It covers any and all actions connected with the exercise of public authority, including but not limited to factual acts, as well as individual decisions made in accordance with the specific procedure, e.g. decisions, orders.
2. The scope of the sovereign capacity (imperium) and the proprietary capacity (dominium) is not strictly divided. It suffices to draw attention to the fact that actions taken within the proprietary capacity sometimes require authority stemming from the sovereign capacity setting the limits within which the commune may act.