Judgement of the Supreme Court Civil Chamber of 14th May 2015
II CSK 768/14

1. The group proceedings in which the demand for ‘establishing the claimant’s liability’ was formulated, has the nature of specific autonomous proceedings which may not be identified in construction terms with the proceedings concluded by issuing a preliminary judgement in the meaning of Article 318 CCP, as well as with proceedings for establishing a right or a legal relationship under Article 189 CCP. The autonomous nature of these proceedings in first order is determined by a separate legal regime of group proceedings, as well as its goal and legal functions, since it is to conclude in a ruling constituting a unique precedent for solving future disputes with the participation of a group of individuals in adequate individual proceedings or as a result of concluding appropriate settlements between claimants and the defendant.
2. The concept of an autonomous nature of group proceedings was adopted in the decision of the Supreme Court of 28^th January 2015, I CSK 533/14, which among others, stated that the object of these proceedings, aimed at establishing the defendant’s liability are only the circumstances common for all members of the group, but not individual circumstances concerning individual members, which will be examined only later in individual proceedings. The ruling issued in these proceedings pertains to all members of the group (Article 21.3 of the Act on Pursuing Claims in Group Proceedings) and aims to establish the defendant’s liability in connection with the arising of a specific act of law, prejudging the existence of a specific legal title for such a liability (e.g. a tort, non-performance or improper performance of an agreement, unjust enrichment, et al.). However, the issue is not the establishment of all necessary preconditions for the arising of a liability as in the case of examination proceedings, ending in a preliminary judgement, e.g. prejudging the existence of all preconditions of tortious or contractual compensatory liability. Hence, it is possible to state that establishing the defendant’s liability in the meaning of Article 2.3 of the Act on Pursuing Claims in Group Proceedings signifies a substantial limitation of the scope of the cognition in comparison with an examination of the existence of all necessary preconditions of the defendant’s liability in an individual court proceedings. In other words, establishing contractual liability in the meaning of the mentioned provision signifies a necessity to establish by the court at least the state of non-performance or improper performance of an obligation in connection with the violation by the defendant specific obligation resulting from the contract relationship binding the defendant to the group’s members.
3. The object of the proceedings aimed at establishing the defendant’s liability is only the circumstances common for all the group members, but not individual circumstances concerning individual members, which will be examined only in later individual proceedings. A ruling issued in these proceedings pertains to all members of the group (Article 21.3 of the Act on Pursuing Claims in Group Proceedings) and aims at establishing the defendant’s liability in connection with the arising of a specific act in law, prejudging the existence of a specific legal title of such liability.
4. De lege lata, there is no express ban of joining a class action in the meaning of Article 1 of the Act on Pursuing Claims in Group Proceedings with proceedings concerning an incidental control of the content of a standard terms, as well as obstacles of a construction and procedural nature in such a combination and there are no contraindications to state an abusive nature of a specific, standard contractual clause and at the same time to establish contractual liability of the template’s author (Article 471 CC). Furthermore, the discussed combination may lead to strengthening consumer protection if the general preconditions of the admissibility of the group proceedings, provided for in Article 1.2 and Article 2 of the Act on Pursuing Claims in Group Proceedings appear.
5. It is necessary to state that assuming an abusive nature of a given provision of an agreement causes the elimination it from the content of the obligation relationship binding the parties, and in no way automatically implies the contractual liability of the template’s author for ‘the defective provisions in the template’.