Decision of the Court of Appeals in Warsaw 1st Civil Division of 6th February 2015
I ACz 43/15

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.
2. As a district (municipal) consumer ombudsman may be a group representative, they are also entitled to conclude the agreement indicated by Article 62 of the Act on Pursuing Claims in Group Proceedings.
3. The case may be examined on the basis of the Act on Pursuing Claims in Group Proceedings when the following conditions are fulfilled. Firstly, the pursued claims are homogeneous, e.g. pecuniary claims. Secondly, at least ten persons establish a group to pursue claims. Thirdly, the claims are based on the same or equal factual grounds. The “equal factual grounds” are defined as similar events – this corresponds with the phrase “same factual grounds” which are one of the premises of formal joint participation in civil proceedings.
4. The variety of terms and conditions of individual agreements and model contracts, which the members of the group and the defendant were parties to; the fact that some of the agreements were concluded directly with the insurer and some with the intermediary (agent) as well as differences in a way the information obligation was served – all these circumstances do not prejudge that the premise of a common factual basis of the claims shall not be fulfilled. Different amounts of contributions, various frequencies they were being paid at and various amounts of purchase fees that were applied in agreements of particular group members also do not change this assessment. The claims of all group members were based on the same – on the contractual clause that entitled the defendant to charge purchase fees, which the claimant considered to be excessive.
5. The defendant, motioning to oblige the claimant to submit a deposit to secure the costs of the proceedings, should include a substantiation that the pursued claim is clearly unfounded or that accepting the claim is highly improbable, what would justify a conclusion that the claim bears the traits of “frivolous litigation”. The defendant should also substantiate that lack of a deposit for securing the defendant’s future claim for the recovery of costs will make the enforcement of the claim impossible or severely hampered.