In principle, group members do not participate actively in the proceedings. Their activity in the proceedings is actually limited to filing of the declaration on joining the group. A group member is not a claimant in procedural terms. Therefore, they do not have rights of party to proceedings, with this provison however that a group (or subgroup) member in the group proceedings is heard not in the capacity of a witness, but of a party.
No group is formed in cases concerning the determination of the using of practices that infringe the general interests of consumers, which means that there are no group members in these cases either.
The Act provides for only a limited number of activities to be performed in group proceedings by group members themselves, which include:
- declaration on joining the group – including the specification of the group member’s demand, an indication of circumstances substantiating such a demand, as well as group membership, and presentation of evidence; the content of the declaration extends also to the consent to a person of the group representative and consent to standardise the amount of a claim (in case of pursuing pecuniary claims); in cases on claims related to using practices that infringe general interests of consumers, the declaration must additionally contain information on whether the group member has joined the group in another class action brought against the defendant for the same infringement, and whether group member has brought an action against the defendant for the same infringement, and information on the manner of communication with the qualified entity;the content of the declaration submitted to the representative includes the group member’s consent to the person of the representative (except for the situation when the representative is the Financial Ombudsman, in which case no such a consent is required) and consent to the standardization of the claim asserted (in the case of the assertion of pecuniary claims by entities other than consumers); in the case of declarations submitted to a qualified entity, there is no requirement of consent to the specific qualified entity acting as a claimant;
the declaration may be submitted to the group representative or qualified entity before the commencement of the group proceedings, or later – until the lapse of the time limit for submitting such a declaration within the second phase of the proceedings (see: What is the course of group proceedings?);
- declaration of leaving the group – the Act allows a group member who has previously filed a declaration on joining the group to resign from participation in the group proceedings, however, it sets a deadline for making such a resignation; the declaration of leaving the group may be submitted no later than by the date on which the decision on the composition of the group becomes final and binding(see: What is the course of group proceedings?); in cases on claims related to using the practices that infringe general interests of consumers, there is an additional possibility to submit a declaration of leaving the group if a group member does not agree with the terms of the settlement (within 2 weeks of being informed about the conclusion of the settlement);
- the group member’s declaration of leaving the group submitted after the said deadlines is ineffective, which means that the court shall still consider such a person as a group member (the court shall examine their claim) and the judgement issued in the case shall have effect with respect to such a person / the settlement shall be binding for such a person;
- request to change the representative / qualified entity – to be effective such a request shall be submitted by more than half of the group members (if it concerns the representative) or at least half of the group members (if it concerns the qualified entity), it should indicate the person of a new proposed representative or qualified entity, and contain their declaration of consent on assuming such a function (see: Who may be a claimant in group proceedings?) the representative of the group may only be replaced by another representative and the qualified entity by another qualified entity (it is not possible to change the type of proceedings during the course of the proceedings, e., for example, to replace the qualified entity by the representative).
- consent to withdraw an action, withdrawal or reduction of the claim, conclusion of a settlement – these dispositive actions of the claimant require a consent of more than half of the group members.
Despite not having a formal status of a party to group proceedings, a final judgement issued in the frames of these proceedings shall bear effects for all members of the group – it decides on their claims. In the operative part of the judgement (or on the list constituting an attachment to the judgement), the court indicates all members of the group and establishes the amount due to each of them (if it awards a cash performance pursued). In turn, when the court dismisses the statement of claims, and this judgment becomes final and valid, members of the group shall no longer be able to pursue in individual proceedings the same claims which were covered by the class action. This situation will result in the occurrence of the force of res iudicata, which has this result that another action concerning the same claims must be dismissed.
With respect to the status of the group member in enforcement proceedings – see: What is the course of group proceedings?
