Decision of the Court of Appeals in Warsaw 6th Civil Division of 7th September 2015
VI ACz 1012/15

1. Claims based on an identical factual basis are claims based on the same factual basis (a sensu stricto precondition) or claims with common factual circumstances (a sensu largo precondition). Obviously, there may be slight differences between the individual factual bases of the individual claims, however, the substantial factual circumstances being common for all the claims is required.
2. A key element determining the admissibility of group proceedings may be abusive clauses existing in contracts of group members and introducing an identical mechanism consisting in the bank’s discretion in establishing the borrower’s debt amount.
3. The assessment of the admissibility of examining the case in group proceedings depends on the factual circumstances provided by the claimant as a basis of the claim, and it is not contingent upon the demonstration of the existence of the claim. Neither is it dependent on the defendant’s charges or the defence method selected thereby.
4. For the needs of preliminary assessment of the action’s admissibility, the court is bound by the circumstances presented by the claimant. The assessment of the nature of the case occurs in the frames of the claim indicated by the claimant and the factual circumstances indicated thereby, which elements specify the legal relationship occurring between the parties and shape the nature of the case. The grounds for rejecting the statement of claims may not be constituted by circumstances pertaining to the legal interest or the right of action (mandatory joint participation) on the claimant’s side, the assessment of which at the stage of examination of the class action is premature.
5. The formulation of a potential claim with the observance of, first and foremost, the premises from Article 1 of the Act on Pursuing Claims in Group Proceedings, in terms of principle does not exclude an examination of the case in group proceedings. The potential claim in group proceedings must comply with the criterion of homogeneity. In other words, all potential claims also must be claims of the same type, based on an identical or the similar factual basis. In a group proceedings, the issuance of a judgement containing rulings on different types of claims in relation to individual members of the group is not possible.
6. If the manner of formulation of a class action demand prevents initiating proceedings in the case, the court should apply the measures provided for in Article 130 § 1 of the Polish Code of Civil Procedure, and after the service of the copy of the statement of claims – in Article 177 § 1.6 of the Polish Code of Civil Procedure.
7. In a consumer protection case where it turns out that one or more of the group members are not consumers, the statement of claims may be rejected only in relation to non-consumers and recognised in group proceedings in relation to the remaining members of the group, provided there are at least ten of them.
8. Even if some group members conduct business activity, it is still necessary to assess the capacity in which they concluded contracts with the claimant. This is because only this relationship is assessed in examination of admissibility for the case to be heard in group proceedings and a member of the group must have the status of a consumer only in the relationship with the defendant.