Decision of the Court of Appeals in Łódź, 1st Civil Division of 28th September 2011
I ACz 836/11

1. The capacity to be a party in civil proceedings is or is not granted to a given entity and is not of a divisible nature, hence having the capacity to be a party in civil proceedings is not dependent on, or linked with the territorial scope of competency of a given entity.
2. The tasks of the Ombudsman are indicated in Article 42 of the Act of 16 February 2007 on competition and consumer protection (Journal of Laws from 2007, No. 50, 4 item 331, as amended), which in section 2 states that the Consumer Ombudsman may in particular bring an action on consumers’ behalf and, with their consent, join lawsuits in cases concerning protection of consumer interests. Therefore, the Ombudsman cannot act in other categories of cases covered under group proceedings, i.e. in cases concerning liability for damages caused by a hazardous product as well as tortious actions. And this is how “the scope of competence granted to the Ombudsman” should be understood.
3. If the facts substantiating the existence of indicated legal relationships are identical in relation to all of the group members, then the condition of the commonality of the factual basis is fulfilled. Potentially unlimited number of various factual circumstances leads to a conclusion that the assessment of the commonality of the factual basis must be carried out ad casum (case by case), and the scope of the judges’ discretionary assessment is relatively wide with respect to this premise.
4. Supporting the demand of the statement of claims on the fact of the conclusion of loan agreements by the group members as consumers with the defendant Bank, with the use of the same standard terms covering the disputed clause regarding the interest rate of the loan and the identical understanding of these clauses by the consumers in the scope of the interest rate changing mechanism as well as the issue of the improper performance of the agreement by the defendant in relation to the individual group members in the scope of the change in the loan interest rate, constitutes equal (similar) factual basis of the demand of the statement of claims for establishing the Bank’s contractual liability.
5. None of the provisions of the Act on pursuing claims in group proceedings prescribe the need to consider the scope of hearing of evidence in the assessment of the admissibility of examining the case in group proceedings.