Judgment of the Court of Appeals in Łódź, 1st Civil Division, dated April 14, 2021
I ACa 1099/18, I ACz 1451/18

1. The appellate court hearing the appeal is bound by the position of the appellate court in the complaint proceedings, within the framework of which the admissibility of hearing the case in group proceedings was examined.
2. One cannot agree with the claim that the legislator in the provision of Article 1(1) of the Law on the Investigation of Claims in Group Proceedings uses the concept of a claim in the substantive legal sense.
3. The first stage of group proceedings (during which the filing of a lawsuit and the filing of a response to the lawsuit take place), ends with the court’s decision on the admissibility of the group proceedings – this is the so-called certification phase of group proceedings. Only after the decision on the cognizance of the case in group proceedings becomes final, the court orders the announcement of the commencement of group proceedings, which begins the second phase of these proceedings, the purpose of which is to determine the final circle of participants. Certification of group proceedings is a unique solution in Polish law, not found in ordinary civil proceedings.
4. When deciding on the admissibility of group proceedings, the court is not limited to examining only the procedural prerequisites specific to group proceedings, but also examines whether all other “ordinary” procedural prerequisites have been met. In making a (positive) certification of a group proceeding, the court confirms the fulfillment of all ordinary (i.e., applicable to any civil proceeding) procedural prerequisites, i.e.: that the case belongs to the judicial route, the domestic jurisdiction of Polish courts, the parties’ legal capacity, the parties’ procedural capacity, as well as the due representation of a party lacking procedural capacity. At the same time, the court confirms the non-existence of any of the negative prerequisites (such as res judicata, lis pendens, the existence of an arbitration clause, or judicial immunity). The procedural prerequisites peculiar to class proceedings, the fulfillment of which the court examines when certifying a class proceeding, include: the homogeneity of the claims asserted, the minimum size of the class, the identity or similarity of the factual basis, the nature of the case.
5. A decision to hear a case in a group proceeding is bound by the court that issued it (Article 332 § 1 in conjunction with Article 361 of the CCP). The court should not be entitled to arbitrarily deviate from the content of the order it issued – otherwise the stabilizing function of the order would be negated in its entirety. This principle also applies if the second instance court has previously taken a position on the admissibility of the group proceeding, recognizing the complaint against the decision of the first instance court. The situation will be different in the case where the decision of the court of first instance to recognize the case in group proceedings has become final due to the expiration of the time limit for filing an appeal. This is because the court of second instance will then not be bound by the previously issued decision made in the course of reviewing the decision on the admissibility of group proceedings. In such a case, it should be recognized that under the current model of full appeal, the court of second instance conducts for the second time exploratory proceedings in the case, which is a continuation of the proceedings conducted in the first instance (Article 378 § 1 of the CCP in principio). Thus, the court of second instance will then be obliged, within the limits of the appeal, on its own initiative to inspect the circumstances determining the admissibility of the proceedings on the merits, unless their examination depends on the raising of an appropriate plea by a party.
6. The necessity of pursuing a “claim of one type” in group proceedings within the meaning of Article 1(1) of the Act of December 17, 2009 on the pursuit of claims in group proceedings means requiring that all plaintiffs seek an adjudication of a benefit or the establishment or shaping of a legal relationship or right. A further condition for the admissibility of group proceedings under this provision is that the claim be based on the same or the same factual basis, and that it be a claim for consumer protection, for liability for damage caused by a dangerous product, and for tort, with the exception of claims for the protection of personal property.
7. The term “claim” as used in Article 1(1) of the Law on the Investigation of Claims in Group Proceedings has a procedural meaning. A different view would have to lead to the conclusion of the admissibility of pursuing only substantive legal claims arising from contractual legal relations in group proceedings (which would be in direct contradiction to at least Article 2(3) of the Act on Pursuing Claims in Group Proceedings).
8. The first prerequisite for the admissibility of a class action is that all persons covered by the class action must apply for legal protection in the same form. Thus, it is not permissible for one person to make a claim for an adjudication of a benefit (a demand for payment), and for the others to make a demand to establish the existence of a specific legal relationship (for example, to establish the existence of a contract).
9. Doubts arise about the definition of homogeneity of claims, which determines their assertion in group proceedings. From the point of view of the homogeneity of claims, such circumstances as: the dissimilarity of the terms of the contracts and templates linking group members with the defendant, as long as the disputed contractual clause was included in each of the contracts, do not constitute an essential element of the factual basis.
10. Monetary claims will undoubtedly be considered to be of one type. Non-monetary claims, on the other hand, will be of one type only if they relate to the requested course of action (behavior) of the defendant, i.e. if all members of the class demand a certain action or omission (of the same type) on the part of the defendant. Undoubtedly, therefore, claims of one type would not be monetary and non-monetary claims asserted simultaneously (in a single group proceeding), or different non-monetary claims asserted simultaneously. The premise of unicity of claims should be understood in such a way that the demands arising from them are common to all members of the group. The action must therefore include a demand for legal protection in the same way for all class members.
11. The question of the factual relationship between the claims must take into account how it is understood on the basis of the institution of substantive and formal co-participation, in light of Article 72 of the CCP.
12. The fact that individual claims for damages will require an examination of the individual factual circumstances peculiar to individual class members is irrelevant to the assessment of the prerequisite of identity or homogeneity of the claim, as provided for in Article 1(1) of the Law on Class Action. Group proceedings are also permissible when the prerequisite of the occurrence of damage and its amount depends on individual factual circumstances pertaining to individual group members.
13. An action to establish the liability of the defendant in a case for a monetary claim arising from a tort constituting a single event is also permissible in group proceedings when the prerequisite for the occurrence of damages and their amount depends on individual factual circumstances concerning individual members of the group. It is also permissible in a class action to establish the liability of the defendant under a “complex tort”.
14. It is intended that an action under Article 2(3) of this law is to be brought when the monetary claims of class members are not suitable for unification in amount. The judgment establishing the defendant’s liability is intended to serve as a prejudgment for any payment proceedings brought individually by class members after the conclusion of the class action.
15. In proceedings to determine the defendant’s liability for damages, the court of merit does not examine the extent and amount of damages. Allegations concerning the receipt by class members of compensation for the property damage suffered are examined in the course of compensation proceedings that follow the proceedings to establish liability for damages.
16. The subject matter of class proceedings when demanding the determination of the defendant’s liability is only the circumstances common to all members of the class. In contrast, it is not a matter of establishing individual circumstances affecting only individual group members. Therefore, it is not necessary to establish or prejudge that the same damage occurred to each member of the group if the circumstances of the damage are so diverse that it would be inappropriate to evaluate them in a class proceeding. It is sufficient to recognize the occurrence of an injury to the extent that it is possible and expedient to do so in a class proceeding. The examination of individual prerequisites such as the nature of the damage, the amount of the damage, the causal relationship to the designated property, the contribution of the injured party will be the subject of examination in individual proceedings.

Court of Appeals in Łódź, 1st Civil Division, composed of:

Presiding judge: SSA Małgorzata Stanek (spr.)

Judges:                SSA Dorota Ochalska-Gola, SSA Joanna Walentkiewicz-Witkowska

having recognized on March 17, 2021 in Łódź, at a hearing, a case brought by W. S. as a representative of a group in group proceedings, consisting of: [data of 28 group members] against the State Treasury – Mazovian Governor, the State Water Management Company Wody Polskie, the Mazowieckie Voivodeship, the Plock District for determination

as a result of the appeal of the respondents State Treasury – Mazovian Governor, State Water Management Wody Polskie and Mazowieckie Voivodeship against the judgment of the District Court in Plock dated April 23, 2018, ref. no. I C 863/12

As well as the plaintiff’s complaint against the decision on legal costs contained in paragraph 4 of the said judgment

1. from the complaint of the plaintiff W. B. S. amends the appealed decision in such a way that it reduces the amount of PLN 44,217 to PLN 21,617 (twenty-one thousand six hundred and seventeen);
2. dismisses the defendants’ appeals;
3. awards the amount of PLN 18,750 (eighteen thousand seven hundred and fifty) jointly and severally to the plaintiff W. S. from the defendants State Treasury – Governor of the Mazowieckie Voivodship, the State Water Management Company Wody Polskie and the Mazowieckie Voivodship as reimbursement of the costs of the appeal proceedings.