Decision of the Regional Court in Katowice 2nd Civil Division of 17th May 2016

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  1. The distinction between pecuniary claims and non-pecuniary is significant insofar as in order to establish a member’s affiliation with the group in the scope of non-pecuniary claims, the plausibility is in fact sufficient.
  2. In the case for the establishment of the non-existence and for payment, the issue of whether the members submitted a declaration on evading the legal effects of one’s declarations of will – or not – is without meaning. The Claimants site the unconditional invalidity of contracts (Article 58 of the Civil Code) and not conditional invalidity, which is dependent on the submission of the declaration. Membership of the group is also not affected by the fact that one of the group members entered into the challenged contract after already being the owner of the premises, as opposed to the remaining members of the group.

 The Regional Court in Katowice 2nd Civil Division in the following ruling bench:

Presiding Judge:      Agata Stankiewicz – Rataj, Regional Court Judge

Judges:                      Anna Bogaczyk-Żyłka, Regional Court Judge, Lech Skórski, Regional Court Judge

having examined on 17th May 2016 in Katowice at the hearing in camera the case filed by M. G. – the group representative against: the Housing Association in B. for declaring the of invalidity and for payment

hereby decides to:

  1. establish the group composition as follows: [14 group members, 4 subgroups];
  2. dismiss the defendant’s motion to obligate the Claimant to pay a deposit to secure the costs of the litigation.

Decision of the Regional Court in Warsaw 25th Civil Division of 26th April 2016

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  1. The Act on Pursuing Claims in Group Proceedings does not determine whether group members’ consent to dispositive actions must be expressed before undertaking such action. It seems however, that lege non distinguente, such consent may be expressed either before undertaking of the act or thereafter.
  2. In cases where the individual members expressed the will to base their claims on two potential substantive law bases, not excluding the possibility of taking advantage of any of them, the group’s representative may alter the order in which to pursue the claims. The altering of the order of the claims to be pursued does not require the consent mentioned in Article 19 of the Act on Pursuing Claims in Group Proceedings.
  3. A charge of application of a defective construction of modify the claim may in no way be qualified as disqualifying the examination of the case in group proceedings.
  4. On the grounds of the Act on Pursuing Claims in Group Proceedings, it does not matter whether the claims arise from the same or from different legal relationships.
  5. At the stage of a preliminary examination, the court examines factual circumstances that are of key significance and common to all members of the group, without a detailed analysis of circumstances characteristic only of single or certain members of the group, but having no influence on the future legal assessment of claims pursued by claimants.
  6. In Article 2 of the Act on Pursuing Claims in Group Proceedings, there are no premises related to proportionality of the pursued claims.

 

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

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  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].

Decision of the Regional Court in Warsaw 24th Civil Division of 20th April 2016

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  1. It is of no significance from the point of view of a decision on group membership that entities who join the group having concluded agreements on the grounds of different Insurance General Terms and Conditions than entities covered by the statement of claims, or the lack of indication of the Insurance General Terms and Conditions on the grounds of which the agreement was concluded. As mentioned above, everyone, i.e. both heretofore and new members of the group derive their claims from the fact of existence of a contractual clause for the defendant constituting the grounds for collecting a redemption fee. The fact of the existence of such provisions is confirmed by the contents of the agreements concluded by group members with the defendant which indicate the method of calculation of redemption fees, as well as from the documents pertaining to insurance policy settlement after its dissolution. Therefore, the content of provisions questioned by the group members and, what follows, the fact of collection of redemption fees stems directly from the concluded agreements and is similar in relation to all the members.
  2. The only criterion of a subgroup membership is the value of the claim which must be identical for all the subgroup members and must be substantiated by shared circumstances. Since liquidation fees of an approximate value were collected from members of specific subgroups on the grounds of similar or identical agreement provisions, then this issue undoubtedly constitutes the common circumstances of the case which substantiate allocating such entities to one subgroup.
  3. Entities filing declarations on joining the group following a public announcement on commencement of the group proceedings are not limited by the value of pecuniary claims raised by the primary members of the group, and in consequence of these entities having accessed the group, the formation of new subgroups or reorganisation of those already existing is possible.
  4. The defence of limitation of claims of all group members, as well as the charge of the lack of defendant’s enrichment constitute objection as to the merits which may not be considered at the present stage of the proceedings, i.e. at the stage of deciding on the group composition.

 

Decision of the Regional Court in Warsaw 1st Civil Division of 8th April 2016

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The Regional Court in Warsaw 1stCivil Division with the following ruling bench:

Presiding Judge: Grzegorz Tyliński, Regional Court Judge

Judges: Bożena Chłopecka, Regional Court Judge, Ewa Ligoń-Krawczyk, Regional Court Judge

having examined on 8th April 2016 in Warsaw at a hearing in camera the case filed by P.K. against the State Treasury – Minister for Labour and Social Policy, Social Insurance Institution (ZUS), (…) a joint stock company with its registered office in W., (…) a joint stock company with its registered office in W., (…) a joint stock company with its registered office in W., (…) a joint stock company with its registered office in W., (…) a joint stock company with its registered office in W, (…) a joint-stock company with its registered office in W., (…) a joint-stock company with its registered office in W., (…) a joint stock company with its registered office in W., for a determination,

herby decides to:

I. publish announcements on the opening of group proceedings with the following wording:

“Group proceedings are pending before the Regional Court in Warsaw under file ref. no. I C 599/14 between the representative of the P. K. group and the State Treasury – Minister of Family, Labour and Social Policy, Social Insurance Institution in W.., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., (…) S. A. w W., the object of which is to determine invalidity of the legal act of redemption of 51.5% of the units of account recorded as at 31 January 2014 on the accounts of the claimants (members of the group) kept by the Open Pension Funds concerned and the transfer of those assets on 3 February 2014 with the value corresponding to the sum of the value of the redeemed units of the Social Insurance Institution account, acting in the name and on behalf of the Social Insurance Fund, made in execution of the disposition of Article 23 of the Act of 6 December 2013 Amending Certain Acts in Connection with the Determination of the Rules for the Payment of Pensions from Funds Accumulated in Open Pension Funds (Journal of Laws, item 1717) and determination that the State Treasury is liable for damages caused to the claimants by these activities.

Each person, whose claim may be covered by the group proceedings, may join the group by submitting a written statement on joining the group within 3 months from the date of publication of this announcement to the group representative (adw. P. K., Legal Office ul. (…), (…)-(…) W.). The principles of remuneration of a possible group representative’s attorney will be specified in an agreement which may be concluded between the group representative and the attorney. A final judgment announced after considering the case in group proceedings shall be effective towards all the group members.”;

II. request that P.K., the representative of the group, pay the amount of PLN 3,600.00 within two weeks to cover the costs of publishing announcements under pain of enforcement;

III. announcements shall be placed in the (…)newspaper (nationwide edition) and in the (…) daily (nationwide edition).

Decision of the Regional Court in Wrocław 1st Civil Division of 6th April 2016

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The decision was partially reversed by the decision of the Court of Appeals in Wrocław 1st Civil Division of 6th September 2016, file ref. no. I ACz 1945/16.

The Regional Court in Wrocław 1st Civil Division in the following ruling bench:

Radosław Nawrocki, Regional Court Judge

Krzysztof Rudnicki, Regional Court Judge

Ewa Rudkowska- Ząbczyk, Regional Court Judge

having examined on 6th April 2016 in Wrocław at the hearing of a class action filed by E. S. acting as a group representative against (…) Bank (…) S.A. in W. for payment,

hereby decides to:

  1. declare the composition of the group consisting in: [11 people];
  2. establish that the following people are not members of the group: [44 people].

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Decision of the Regional Court in Warsaw 2nd Civil Division of 24th March 2016

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The Regional Court in Warsaw 2nd Civil Division with the following ruling bench:

Presiding Judge:            Tomasz Wojciechowski, Regional Court Judge

Judges:                            Magdalena Antosiewicz, Regional Court Judge

Katarzyna Waseńczuk, Regional Court Judge

having examined on 24th March 2016 in Warsaw at the hearing in camera the case filed by the Consumer Ombudsman in the City Hall of S., acting as a group representative of the group consisting of [data of 31 group members] against (…) S.A. in W. for declaration,

decided to:

order a one-time publication in the “(…)” daily of the announcement on the commencement of group proceedings with the following content:

The Regional Court in Warsaw 2nd Civil Division hereby announces that the group proceedings with case file no. II C 222/16 are currently pending before that court under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings started by the Consumer Ombudsman in City Hall S. against (…) S.A. for the declaration that:

  • the general terms and conditions of the insurance contract included in the tables of fees and limits stipulated the amount of the liquidation fee to be charged from the group members to the benefit of (…) S.A. in W. in the case of the dissolution of the life insurance contract with insurance capital funds before the lapse of 10 years as of the moment of the conclusion of the agreement for reasons other than death ((…), (…) (…), (…), (…)) should be deemed an abusive clause and do not bind the members of the group;
  • in the case of the dissolution of the life insurance contract with insurance capital funds before the lapse of 10 years as of the moment of the conclusion of the contract for reasons other than death (…) S.A. in W. is obligated to pay each member of the group an amount equal to the amount of the insurance policy decreased by the bay-out fee in the amount stipulated in the table of fees and limits;
  • alternatively, to declare that the premises to declare the life insurance contracts with insurance capital funds concluded between the group members and (…) S.A. in W. are invalid.

The Regional Court informs about the possibility of joining the group proceedings by the persons whose claim might be pursued in such group proceedings, submitting a declaration of intent to join the group within 3 months as of the date on which this announcement was published to the Consumer Ombudsman in the City Hall of S.

[details on calculation of legal fees]

Simultaneously, the Regional Court informs that the judgment issued in the case at hand will be binding towards the group members.

Decision of the Regional Court in Warsaw 1st Civil Division of 21st March 2016

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  1. Filing the motion for obligating the claimant to enter a deposit to secure the costs of the proceedings, the defendant should, firstly, make plausible the fact that the action brought against him is obviously ungrounded or unlikely to be granted and, therefore, it has the characteristics of ‘barratry’ and, secondly, that non-establishing a deposit to secure his future claim for reimbursement of the costs of the proceedings will make enforcing it from the claimant. impossible or difficult.
  2. Acting as a representative of a specific group of consumers, the  Municipal Consumer Ombudsman is a person of public trust, by the authority of the local government handling issues of protection of consumer interests. The Ombudsman’s expenditures constitute an element of a given city’s budget and, hence, in the event of losing a case, the defendant’s costs shall be charged to the city.

Decision of the Regional Court in Piotrków Trybunalski 1st Civil Division of 18th March 2016

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The Regional Court in Piotrków Trybunalski having examined the case of I.G. – as a group representative against The (…) University of Business (Wyższa Szkoła Handlowa)  in P. for payment, during an in camera hearing on 18th March 2016

hereby decides

that the group of people pursuing claims in group proceedings against the (…) University of Business (Wyższa Szkoła Handlowa) with its registered office in P. consists of: (names of group members).

Decision of the Regional Court in Gdańsk 25th Civil Division of 8th March 2016

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The decision has been reversed by the decision of the Court of Appeals in Gdańsk 1st Civil Division of 11th January 2017.

  1. It is the group representative’s duty to: collect the declaration on each person’s claims and to classify which subgroup each person should belong to based on the statements of the persons in which the specific claims were declared. The group representative cannot create the claims which were not to the subject of a declaration and, in such a case, cannot pursue such claims in group proceedings if the claims were not explicitly stated in the declarations on joining the group.
  2. The consequence of the incorrect classification of the person to the subgroup may result in the dismissal of the case.
  3. The group representative’s authorisation to change the classification of the person to the subgroup cannot be considered as possibility to submit new claims on behalf of the persons who join the group which were not stated in the declaration on joining the group.
  4. Persons without full legal capacity (for example children) should be indicated as group members if they enjoy substantive legal capacity to pursue claims. This is because group members are attributed with the title to be authorised in their own name to pursue their own claims against the defendants. Minors should submit a declaration of joining the group. Their statutory representatives (parents) can only represent such a person during the trial, however, without the status of a group member.

The Regional Court in Gdańsk 25th Civil Division in the following ruling bench:

Presiding Judge:            Urszula Malak, Regional Court Judge

Judges:                            Dorota Kołodziej, Regional Court Judge

Krzysztof Solecki, Regional Court Judge

having examined on 8th March 2016 in Gdańsk during the hearing in case in group proceedings in the case filed by group representative (…) against (…) and (…),

decides to:

  1. establish that subgroup I i.e. the subgroup demanding the awarding of PLN 94.80 to each group member by defendants jointly and severally as the return of undue performance, alternatively – in the event the statement of claims is dismissed in that scope – ascertainment that the group members are not obligated to pay PLN 94.80 to the defendants as the subscription fee for using the services offered by the website www.pobieraczek.pl, consists of: [data of 48 group members];
  2. establish that subgroup III i.e. the subgroup demanding ascertainment that the group members are not obligated to pay PLN 94.80 to the defendants as the subscription fee for using the services offered by the website www.pobieraczek.pl, consists of: [data of 59 group members];
  3. establish that subgroup V i.e. the subgroup demanding the ascertaining that these persons are not obligated to pay PLN 94.80 to the defendants as the subscription fee for using the services offered by the website www.pobieraczek.pl and that they are not obliged to pay the contractual penalty of USD 100 to the defendants for breaching § 6 point 3 of the Usenet Service Provision Terms and Conditions of 16th April 2010 to the defendants, consists of: [data of 482 group members];
  4. dismiss the motion for decision on establishing the composition of the group in the remaining scope.