Issues related to collective pursuit of claims undoubtedly falls within the area of civil procedure that has been dynamically developing in recent years (particularly in European countries) and has become an object of vivid discussion. With more than a hundred years of class action tradition, the US is considered the cradle of this institution. In recent years, mechanisms of collective pursuit of claims have been implemented in particular European countries. On the EU level, works aimed at the harmonisation of those mechanisms have been underway for several years.
Collective proceedings (i.e. proceedings in which a large number of entities pursues their claims against a defendant or a group of defendants) are playing an increasingly important role in the legal systems of individual countries, and this trend will surely continue in the forthcoming decades.
When discussing mechanisms of collective pursuit of claims, or broadly understood group proceedings (class actions), it is possible to identify three basic types of such mechanisms which are structurally different and which fulfil different functions.
First, it is possible to distinguish the so-called representative actions, meaning actions initiated by a statement of claims filed by a specific qualified entity and aimed to protect the collective interest of a particular group of people. Proceedings of this type fulfil, first and foremost, a regulatory function.
Second, there are test case type regulations, i.e. structural mechanisms for combining of many similar cases for joint examination and adjudication; next to their compensatory function, their main function is to guarantee homogeneity of case law.
Third, one can also distinguish group proceedings initiated by collective statement of claims (drawing on the American class action). The objective of this mechanism is to protect the individual interests of multiple injured parties. Therefore, they concern a sum of identical or analogical interests of individuals. In principle, this mechanism is to play a compensatory function. It operates in two principal models: opt-in and opt-out.
The opt-in version assumes that a judgement issued in the outcome of a filed collective statement of claim shall be binding for only the people who will give an unambiguous expression of their will to participate in such proceedings. Meanwhile, the source American model is an opt-out model in which the group (class) member is each potential entity that meets the criteria (characteristics) of the group (class). If a given person does not wish to be part of the group (class), they must provide a clear expression of their will by opting out. The judgement issued in the case is binding for all members of the group (class), even those who had no knowledge whatsoever of the ongoing proceedings (this is the so-called preclusion effect).
Bearing in mind the separate nature of common law and continental law systems, it is impossible to imagine a straightforward transposition of the class actioninstitution in its classical form onto systems of European countries, including Polish law. This being said, the American solution has provided and continues to provide inspiration for the introduction of mechanisms meant to fulfil an analogical function within other legal systems.
European countries apply a variety of legal solutions related to collective proceedings. In some countries, such as Finland, Sweden, Germany, Great Britain, Norway, the Netherlands, or Poland – the mechanism functions on a basis of special separate legal acts (statues). In others, including Italy, Portugal, or Spain – mechanisms of collective pursuit of claims were regulated in codes of civil procedure (or broadly understood substantive civil law).
In 2007, the European Commission commenced works on common European regulations in the area of collective pursuit of claims (see: Pojects aimed at strengthening the mechanisms of collective pursuit of claims in the EU). ATS