Decision of the Court of Appeals in Warsaw 6th Civil Division of 8th August 2013
VI ACz 1639/13

1. There is no doubt that claims for payment for undue payment are homogenous in nature. Since members of the group who are buyers of premises derive their claims addressed to the developer from the fact of including in the agreements valorisation clauses imposing the obligation on the buyer to make an extra payment to the price of the flat, undoubtedly these claims have equal factual basis.
2. For the needs of the preliminary assessment of the action’s admissibility, the Court is bound by the circumstances presented by the claimant. It is assumed that the assessment of the nature of the case occurs in the frames of the claim indicated by the claimant and factual circumstances presented by him. These elements specify the legal relationship between the parties, shape the nature of the case and, thus, either vest it with or divest it of the attribute of a civil case.
3. Consumer protection cases are cases arising from consumers’ claims towards an entrepreneur, e.g. from lease agreements, sale agreements, credit agreements, loan agreements, or carriage agreements. The fact that the group members derive the undue nature of the performance from the consumers’ not being bound by abusive contractual provisions particularly supports the assumption that the demands of the claimant are in substance consumer protection claims.
4. A subgroup,, includes these persons whose claims, due to diversified circumstances concerning individual members of the group, could not be standardised in the frames of the group. In each group proceedings there is a potentiality that the adjudication will differ in relation to various members of a given subgroup. For it may turn out after evidentiary proceedings that a given member of a subgroup either did not suffer damages at all or suffered damages different in size than it followed from the substantiation of the statement of claims and division into subgroups.
5. The basic function of the deposit mentioned in Article 8 of the Act (Polish Act on pursuing claims in group proceedings) was to eliminate the possibility of abusing the group proceedings institution by initiating in this procedure obviously ungrounded actions or, despite their apparent compliance with formal requirements from Article 1 and 2 of the Act, unfit to be examined in a group proceedings.
6. The provision of Article 8 section 2 of the Act imposes the obligation on the defendant to raise a motion for obligating the complainant to pay a deposit already on the occasion of the first procedural action. Therefore, a motion raised at another time will always be late, and hence – ineffective. There are no doubts that such a motion should be appropriately motivated, either. It is so since the lack of its substantiation rules out submitting it to the rational examination of the Court.