Decision of the Regional Court in Gdansk 1st Civil Division dated 28th October 2016
I C 245/15

1. The case on the protection of consumers appears in Article 61 § 1 CCP that determines the scope of activity of non-governmental organisations. According to Article 22¹ CC, a consumer is a natural person who performs acts in law which are not directly connected with his economic or professional activity. The aim of the activity which has no business aspect, is fundamental.
2. The status of a given person as a consumer shall be appraised at the moment of performing the act in law. The subsequent changes in the purpose of the acquired good or service shall not lead to the change of a once adopted establishment.
3. The fact of acquiring the real estate in which the business activity was subsequently led does not mean that the given person was not a consumer on the date of concluding the contract. As well, the fact that the given person runs a business or professional activity in the scope of granting a credit does not mean that he was not a consumer at the moment of concluding the contract with a bank concerning him personally.
4. The fact that the part of the Members of the Group signed the appendix to the contract does not exclude the possibility of declaring the primary version of the contract null and void. However, the issue of the existence of the legal interest in demanding such a declaration shall be assessed.
5. Claims based on an equal factual basis are claims based on the same factual basis (a sensu stricte prerequisite) or claims having common essential factual circumstances (a sensu largo prerequisite). That means that the prerequisite of the equal or the same factual basis means that the identical circumstances do not have to be the factual basis of the claim, but the significant similarity of them is sufficient. As a result, the factual basis does not have to be equal but at least the same.
6. The slight differences may exist between the individual factual basis of respective claims, nevertheless it is indispensable that the essential factual circumstances remain common for all of the claims. Such circumstances common for all of the claims are contracts concluded by the members of the group (…) containing abusive clauses, introducing the identical mechanism based on the bank’s discretion in determining the level of indebtedness of the borrower, that leads, according to the plaintiff, to the invalidity of those contracts.
7. The legal proceedings of the court regarding the examination of the admissibility of the class action are specific pre-litigation proceedings. The Court decides about the admissibility of the class action only on the basis of assessment of the lawsuit, because it makes a formal-legal appraisal on the admissibility of those proceedings. The Court is not entitled to examine the substantive prerequisites of the claim.