Case law > Judgment of the Regional Court for Warsaw-Prague in Warsaw 3rd Civil Division dated 22nd April 2016

Judgment of the Regional Court for Warsaw-Prague in Warsaw 3rd Civil Division dated 22nd April 2016
III C 491/12

  1. Under Article 3853 pt 20 of the CC, a provision providing for a consumer’s contractor’s right to determine or to raise the price or remuneration after a contract was concluded without granting to the consumer the right to withdraw from the contract constitutes an inadmissible contractual clause.
  2. A superficial difference between provisions of a given contract template and those contractual clauses deemed inadmissible by the Consumer and Competition Protection Court leads to a conclusion they are identical as those the court recognized as abusive.
  3. As regards establishing the invalidity of contract template provisions including valorization clauses, the defendant’s allegation that he had negotiated the amount of valorization payment with some of the group members and that those who acquired their rights by assignment had been informed on the value of the valorization fee is of no significance.
  4. Further application of contract provisions recognized as inadmissible constitutes an unlawful action of the entrepreneur infringing on consumers’ interests, i.e. a practice infringing on the collective consumer rights in the meaning of Article 24 [2] of the Consumer and Competition Protection Act.
  5. The declarations included in agreements on establishment of separate ownership of premises under which the parties mutually waive all the claims arising from the performance of the contract for construction and sale of residential premises are not declarations on waiving the claims for the return of the undue valorization fee.
  6. Contract clauses subject to control on the basis of Article 385¹ CC are lawful, However, due to additional premises indicated in this Article, they might be deemed inadmissible and in consequence not binding for the consumer.
  7. Application of valorization clauses is admissible as long as they shape rights and obligations of consumers in a fair way.
  8. Under Article 3851 [1] CC, application of an inadmissible clause in a contract template results in the lack of the binding force of such a provision while the remaining parts of the template remain effective.

 The Regional Court for Warsaw-Prague in Warsaw 3rd Civil Division in the following ruling bench:

Presiding Judge: Ewa Dietkow (rapporteur), Regional Court Judge

Judges: Beata Karaczewska-Mazur, Regional Court Judge, Radosław Olszewski, Regional Court Judge

having examined on 8th April 2016 in a court hearing the case file by S.P. against (…) Ltd. with its registered office in Z. for payment

hereby decides to: 

  1. jointly and severally award from the Defendant to [2 group members] the amount of PLN 25,606.30 including the statutory interest as of5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment, and the amount of PLN 4,473.95 as the return of the proceeding costs of proceedings of proceedings;
  2. award from the Defendant award from the defendant to [1 group member] the amount of PLN 25,606.30 with the statutory interest as of5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 4,473.95 as the return of the proceeding costs of proceedings;
  3. award from the defendant to [1 group member] the amount of PLN 25,606.30 with the statutory interest as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points and the amount of PLN  4,473.95 as the return of the proceeding costs of proceedings;
  4. jointly and severally award from the Defendant to [2 group members]the amount of PLN 10.000,00 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 1.820,00  as the return of the proceeding costs of proceedings;
  5. jointly and severally award from the Defendant to jointly and severally award from the Defendant to [2 group members]the amount of PLN 10,000.00 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 1,820.00  as the return of the proceeding costs of proceedings;
  6. jointly and severally award from the Defendant to [2 group members] the amount of PLN 10,000.00 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 1,820.00  as the return of the proceeding costs of proceedings;
  7. jointly and severally award from the Defendant to [2 group members]the amount of PLN 5,901.29 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 1,124.19 as the return of the proceeding costs of proceedings;
  8. jointly and severally award from the Defendant to [2 group members]the amount of PLN 5,901.29 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 1,124.19  as the return of the proceeding costs of proceedings;
  9. jointly and severally award from the Defendant to [2 group members]the amount of PLN 5,901.29 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 1,124.19 as the return of the proceeding costs of proceedings;
  10. jointly and severally award from the Defendant to [2 group members]the amount of PLN 7,502.87 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 1,396.43   as the return of the proceeding costs of proceedings;
  11. award from the defendant to [1 group member] the amount of PLN 7,502.87 with the statutory interest as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 1,396.43  as the return of the proceeding costs of proceedings;
  12. Award from the defendant to [1 group member] the amount of PLN 13,550.00 with the statutory interest as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,423.50  as the return of the proceeding costs of proceedings;
  13. award from the defendant to [1 group member] the amount of PLN 13,550.00 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,423.50  as the return of the proceeding costs of proceedings;
  14. award from the defendant to [1 group member] the amount of PLN 13,550.00 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,423.50  as the return of the proceeding costs of proceedings;
  15. award from the defendant to [1 group member] the amount of PLN 19,923.27 with the statutory interest as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 3,507.49  as the return of the proceeding costs of proceedings;
  16. jointly and severally award from the Defendant to [2 group members]the amount of PLN 19,923.27 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 3,507.49 as the return of the proceeding costs of proceedings;
  17. jointly and severally award from the Defendant to [2 group members]the amount of PLN 30,000.00 with the statutory interest as of 5th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 5,220.00 as the return of the proceeding costs of proceedings;
  18. award from the defendant to [1 group member] the amount of PLN 30,000.00 with the statutory interest as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 5,220.00 as the return of the proceeding costs of proceedings;
  19. jointly and severally award from the Defendant to [2 group members] the amount of PLN 17,234.36 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 3,050.15 as the return of the proceeding costs of proceedings;
  20. jointly and severally award from the Defendant to [2 group members] the amount of PLN 17,234.36 with the statutory interest as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 3,050.15 as the return of the proceeding costs of proceedings;
  21. jointly and severally award from the Defendant to [3 group members] the amount of PLN 22,747.84 with the statutory interest on the amount of PLN 19,923.27 as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 with the statutory interests in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and on the amount of PLN 2,824.57 as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest equal to the sum of the referential rate of the National Polish Bank and 3.5 percentage points until the date of payment and the amount of PLN 3,987.18 as the return of the proceeding costs of proceedings;
  22. jointly and severally award from the Defendant to [2 group members] the amount of PLN 22,747.84 with the statutory interest on the amount of PLN 19,923.27 as of 5th July 2012 until 31st December 2015 and as of 1st January 2016 with the statutory interests in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and on the amount of PLN 2,824.57 as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 3,987.18 as the return of the proceeding costs of proceedings;
  23. jointly and severally award from the Defendant to [2 group members]the amount of PLN 11,314.42 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 2,044.16 as the return of the proceeding costs of proceedings;
  24. award from the defendant to [1 group member] the amount of PLN 11,314.42 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,044.16 as the return of the proceeding costs of proceedings;
  25. jointly and severally award from the Defendant to [2 group members] the amount of PLN 25,916.96 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 4,526.54 as the return of the proceeding costs of proceedings;
  26. jointly and severally award from the Defendant to [2 group members]the amount of PLN 25,916.96 with the statutory interest as of 19th July 2014 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 4,526.54 as the return of the proceeding costs of proceedings;
  27. adjudge to [1 group member] on the part of the defendant the amount of PLN 16,063.55 with the statutory interest on the amount of PLN 13,550.00 as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment, on the amount of PLN 2,513.55 as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 2,851.53 as the return of the proceeding costs of proceedings;
  28. award from the defendant to [1 group member] the amount of PLN 16,063.55 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,851.53 as the return of the proceeding costs of proceedings;
  29. award from the defendant to [1 group member]  the amount of PLN 16,063.55 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 until the date of payment with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points and the amount of PLN 2,851.53 as the return of the proceeding costs of proceedings;
  30. jointly and severally award from the Defendant to [2 group members]the amount of PLN 4,611.0634,611.06 with the statutory interest on the amount of PLN 30,000.00 as of 5th July 2012 until 31st December 2015, and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment, on the amount of PLN 4,611.06 as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate  and 3.5 percentage points until the date of payment and the amount of PLN 6.004,66 as the return of the proceeding costs of proceedings;
  31. adjudge to [1 group member] on the part of the defendant the amount of PLN 69.222,12 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 12.009,32 as the return of the proceeding costs of proceedings;
  32. award from the defendant to [1 group member] the amount of PLN 3,048.72 with the statutory interest as of 19th July 2014 until 31st December 2015 and as of 1st January 2016 with the statutory interest in the amount equal to the sum of the National Bank of Poland referential rate and 3.5 percentage points until the date of payment and the amount of PLN 638.30 as the return of the proceeding costs of proceedings;
  33. dismiss the claim of [3 group members].