“A group” is a group of persons who have decided to pursue their claims jointly in the form of group proceedings and who filed a declaration on joining the group and expressed their consent for bringing of the action by a specified person who shall act in the capacity of the group representative (see: Who may be a claimant in group proceedings?). If the representative of the group is the Financial Ombudsman, the group is made up of persons who have submitted statements on joining the group (no requirement to consent to a person of the representative of the group). Similarly, when a case is brought by a qualified entity, in cases on claims related to using of practices infringing the general interests of consumers, the group is formed by persons who have submitted statements on joining the group (no requirement to consent to the qualified entity). In cases on claims concerning the use of practices infringing the general interests of consumers, the requirement to form a group of at least 10 persons has been abolished (no declarations on joining the group are filed).
At the beginning, the group consists of persons who submitted such a declaration at the time of bringing of the action and to whose benefit the representative or qualified entity has filed the action. Later the group may be extended by other persons who submit a declaration on joining the group at the second stage of the procedure (see: What is the course of group proceedings?).
For instance, a group may be established by consumers injured by a single entrepreneur using the so-called abusive clauses, or by the persons who were injured in the same event (e.g. road traffic accident, other unlawful activity), or by persons suffering damages caused by a hazardous product.
Polish group proceedings are based on the so-called opt–in model of participation, which requires the members of the group to expressly indicate their will to participate in group proceedings (by filing of the so-called declaration on joining the group). This is an opposite system to the one which is adopted by some countries following the opt–out model applied in the US, according to which an action covers all persons who qualify to be group members (who belong to the defined class) unless those persons expressly indicate their will not to participate in group proceedings.
In the Polish procedure, the commencement of group proceedings does not exclude the separate, individual pursuit of claims in court by persons who have not joined the group or who have definitely withdrawn (left) from the group. This is because a final and valid judgment bears effects exclusively towards all group members (i.e. persons covered by the court’s decision approving the composition of the group). In doing so, it is not possible to claim individually that an entrepreneur has used a practice that infringes the general interests of consumers.
Internal relations between persons who establish or intend to establish a group are not regulated by law.
Following a general rule of freedom of contracting, in cases brought by a representative of the group, these persons can decide the shape of their mutual relations themselves and, in particular, the manner of collecting and covering the costs of group proceedings.
To secure interest of group members and set forth the rules of participation in the group, it is advisable to conclude a written agreement between the group members and the group representative specifying the principles of cooperation in relation to the group proceedings (the so-called “internal agreement”). Such an arrangement is unnecessary when the action is brought by the Financial Ombudsman or a qualified entity, who have the professional facilities and resources to organize the proceedings.
Moreover, the provisions explicitly set for that group members do not bear the costs of proceedings that are initiated by a qualified entity, with the exception of fees, which are capped and may be charged by the qualified entity under strict rules (see: What are the costs related to participation in group proceedings? and How can the action of a qualified entity by funded?).