Decision of the Court of Appeals in Warsaw 1st Civil Division of 22nd February 2012
I ACz 182/12

1. The definition included in Article 22¹ of the Civil Code is not of an universal nature. It is emphasised in the legal doctrine that the notion of the consumer, which in truth serves the purpose of indicating the objective scope of protection, is differently defined in various statutes, whereas the number of definitions requires a court’s assessment in each case.
2. Under Article 2.b and 2.d of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC for the purposes of this directive a “financial service” means any service of a banking, credit, insurance, personal pension, investment or payment nature; “consumer” means any natural person who, in distance contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession. Consequently, it must be found that despite the fact that Polish law has not realised in the requirement of complete implementation the Act of 23 August 2007 on Combating Unfair Commercial Practices, a broader definition of the consumer adopted in Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 should be applied.
3. If under the provisions of the Treaty on the Functioning of the European Union the shared competences in relation to the protection of consumer rights allow for the introduction to the national law only of more rigorous norms and directives are the fundamental legal measure serving the purpose of harmonisation of the law in the scope of consumer protection, while the Act of 23 August 2007 on Combating Unfair Commercial Practices and the Act of 16 February 2007 on Competition and Consumer Protection, invoking Article 22¹ of the Civil Code, introduce a narrower definition of the notion of a consumer and do not duly implement the directives, the definition indicated in the EU law should be applied. This is advocated by the necessity to take the overriding principles of the EU law and realisation of objectives indicated in the Treaty on the Functioning of the European Union and the Treaty Establishing the European Community (in the wording amended by the Treaty of Lisbon of 13 December 2007) into consideration. The definition of a consumer should include natural persons acting for the purposes which are outside of their trade, commercial, craft or professional activity, and should not be limited to the activities with a qualified form of acts in law. Consequently, this should also be the understanding of the notion of a “consumer”, in interpreting Article 1.2 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings.
4. Under Article 2.1 of the Act on Pursuing Claims in Group Proceedings, a group action is admissible in pecuniary claim cases only when the value of the claim for each member of the group was standardised with taking the common circumstances of the case into consideration. Standardisation is admissible in groups or subgroups (Article 2.2) if circumstances concerning individual members of the group are diversified in such a degree that the standardisation of claims of all members of the group is not possible. The Act does not specify what standardisation is to consist in. The legal doctrine indicates that this regulation was introduced for the purposes of procedural economy. In other words, the deciding factor is the regard for speeding up and joint examination of a dispute arisen against the same or equal factual basis, consisting of the invoking the factual circumstances substantiating the demand (causa petendi). This means that not only there is no normative substantiation for the defendant’s claim on the necessity of demonstrating a common algorithm for calculating a lump sum value of the demand, but that there are no grounds for the court to engage in any further reaching examination and assessment at this stage.