The decision was changed by the decision of the Court of Appeals in Warsaw 1st Civil Division of 27th August 2019, I ACz 618/19.
- A declaration on joining a group may not be made by a group member directly to the court with the omission of the group representative.
- The fact that a credit instalment is repaid directly in CHF currency cannot affect the possibility of participation in the proceedings by persons who repaid in this way. This is because the factual basis of their claims is similar to that of the other members of the group, and the fact that repayment is made directly in CHF may be relevant only to the amount of the claim for payment of the amounts charged as an undue pecuniary performance in connection with the bank’s use of the indexation clauses formulated unfairly in the credit agreements.
- It is impossible to argue that a demand based on Article 189 CCP may not be made by each of the co-borrowers, regardless of the relationship between them and the other or the subsequent debtor under the credit agreement.
The Regional Court in Warsaw 2nd Civil Division with the following ruling bench:
Presiding Judge: Marcin Polakowski, Regional Court Judge (rapporteur)
Judges: Magdalena Antosiewicz, Regional Court Judge;
Sylwia Urbańska, Regional Court Judge
having examined on 10th December 2018 in Warsaw the case filed by the group representative – the Municipal Consumer Ombudsman in S. acting on behalf of [data of 41 persons] against (…) SA with its registered office in W. for establishment,
decides:
to establish that the group is composed of: [data of 41 members of the group].
The Regional Court in Warsaw 2nd Civil Division with the following ruling bench:
Presiding Judge: Marcin Polakowski, Regional Court Judge (rapporteur)
Judges: Magdalena Antosiewicz, Regional Court Judge;
Sylwia Urbańska, Regional Court Judge
having examined on 10th December 2018 in Warsaw the case filed by the group representative – the Municipal Consumer Ombudsman in S. acting on behalf of [data of 41 persons] against (…) S.A. with its registered office in W. for establishment,
decides:
- to refer the parties to mediation,
- to appoint a mediator in the person of R. M. from z Centrum (…) at (…),
- to set the mediation period for one month.
- The provision of Article 8 (1) of the Act on Pursuing Claims in Group Proceedings is facultative in nature and its application remains in fact at the discretion of the court. It is also not disputed in the case law and in the doctrine that the reason for rejecting a motion to secure costs may be the finding that the claimant (representative of the group) gives a guarantee that the obligation to reimburse the costs of the trial to the defendant will be met if the dispute is lost.
Regional Court in Warsaw 1st Civil Division with the following ruling bench:
Presiding Judge: Rafał Wagner, Regional Court Judge
Judges: Bożena Chłopecka, Regional Court Judge;
Tadeusz Bulanda, District Court Judge (delegated)
having examined on 7th December 2018 in Warsaw the case filed by M.B. as the representative of the group: [data of 43 persons] against (…) S.A. with registered office in W. for payment,
decides:
- To discontinue the proceedings in relation to D.P. due to his death.
- To discontinue the proceedings in the remaining scope due to the conclusion of a settlement.
- To reimburse the claimant – M.B., the group representative – from the funds of the State Treasury – the Regional Court in Warsaw with the amount of PLN 2,435.00 (in words: two thousand hour hundred and thirty five zloty 00/100) on the grounds of the return of half of the fee on the statement of claims.
- To order the enforcement of PLN 5,712.19 (in words: five thousand seven hundred and twelve zloty 19/100) from (…) Spółka Akcyjna with its registered office in W. to the benefit of the State Treasury – the Regional Court in Warsaw on the grounds of unpaid expenses.
The judgment was partially changed by the judgment of the Court of Appeal in Wrocław of November 4, 2019, I ACa 239/19
- Performances delivered on the basis of a prohibited clause of low own contribution insurance, not binding for the members of the group, constitute undue performances and as such are subject to return under Article 410 (1) and (2) CC in conjunction with Article 405 CC.
- Claims pursued on the grounds of unjust enrichment (Article 405 CC et seq.), in particular under Article 410 CC, which provides for undue performance, do not become due without a call for payment (Article 476 CC).
The judgements of the Regional Court in Wroclaw published on the website were facilitated by the President of the District Court in Wroclaw in the letter of 27th August 2019. The texts of the judgements were processed by the entity operating this website by adding theses, visual compilation and removing punctuation and literal errors. The judgements have been translated by the entity operating this website.
The authority obliged to provide public sector information is not responsible for its processing, further sharing and use.
The Regional Court in Wroclaw 1st Civil Division with the following ruling bench:
Presiding Judge: Adam Maciński, Regional Court Judge
Judges: Sławomir Urbaniak, Regional Court Judge;
Aneta Fiałkowska-Sobczyk, Regional Court Judge
having examined on 24th October 2018 in Wroclaw at the hearing in camera the case filed by D. D. acting as the group representative against (…) Bank S. A. with its registered office in W. for establishment,
decides:
to establish that the group in the case being heard is composed of: [data of 55 members of the group, including the group representative].
The judgements of the Regional Court in Wroclaw published on the website were facilitated by the President of the Regional Court in Wroclaw in the letter of 27th August 2019. The texts of the judgements were processed by the entity operating this website by adding theses, deleting data of group members, visual compilation and removing punctuation and literal errors. The rulings have been translated by the entity operating this website.
The authority obliged to provide public sector information is not responsible for its processing, further sharing and use.
Points 1., 2. and 3. of the operative part of the judgement were set aside by the judgement of the Court of Appeals in Lodz 1st Civil Division of 9th March, I ACa 80.19.
- The prerequisite of legal interest from Article 189 CCP should be applied to members of the group and not to a representative of the group.
- A legal interest within the meaning of Article 189 CCP does not occur if the claimant can obtain the protection of their rights by other legal means – e.g. an action for an award. The possibility to bring an action for a performance precludes the existence of a legal interest in bringing an action for establishment on the claimant’s part.
- The fact of introducing an amendment to Article 69 of the Act of 29 August 1997 the Banking Law (adding Article 69 (2) (4a) and Article 69 (3)) does not mean that before the date of 26 August 2011 it was not possible to conclude agreements on a credit denominated, indexed or valorised to a foreign currency.
- The change in the amount of the borrower’s liability in the valorised credit agreement is the result of a legal valorisation mechanism.
- The allegation indicating that the entire foreign exchange risk burdens the borrowers is ungrounded. Depending on the economic situation on the market, the negative consequences of the currency conversion are borne by both the clients and the bank.
- Using the valorisation mechanism is without prejudice to the nature of the credit agreement, banking law, or any other generally applicable national or international law. Under the principle of freedom of contract (Article 3531 CC) the use of such a mechanism is permitted.
- The parties may stipulate in the agreement that the amount of the monetary performance will be determined by a value measure other than money. What is at issue here is a measure other than that of the money that the obligation involves. It may, therefore, be a different currency.
- The assessment of the compatibility of agreements with the principles of social coexistence should not be made in the light of the individual characteristics of individual consumers, since the claimant, claiming that the agreements covered by the action are invalid, seeks to examine their compatibility with the principles of social coexistence in a normative manner. What is to be examined is whether the construction of the contract, expressed on the basis of a single contract template and the resulting mechanism of valorisation, are compatible with the principles of social coexistence, and not whether the borrowers are educated people with knowledge of the financial market or incompetent people who are in a difficult situation at the date of conclusion of the credit agreement.
- The conflict with the principles of social coexistence would arise if the defendant repudiatedly introduced into the market factors which would increase the exchange rate of the foreign currency in order to achieve its own benefits outside of the economic market mechanisms. The increase in the Swiss franc exchange rate over time is the result of economic market rules, which are not influenced by any of the parties to the agreement.
On 19th October 2018
File ref. no. XXVI GC 619/17
ORDER
- Kindly order the publication of the ‘Announcement on commencement of group proceedings’ with the following content once in the daily paper (…) in accordance with the offer sent on 3rd October 2018 (attach the e-mail) and its point 2 – advertisement pages – an announcement for the price of PLN (…)net (15 modules – font 9 points). Kindly send us a copy of the daily paper in which the announcement was published.
Announcement on the commencement of group proceedings
Before the Regional Court in Warsaw 26th Commercial Division under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, a class action for payment was initiated by the group representative – T. G. acting on his own and on behalf of the group members against (…) sp. z o.o. with its registered office in W., K. J. and P. J. (defendants), file ref. no. XXVI GC 619/17.
Pursuant to Article 2.3 of Act on Pursuing Claims in Group Proceedings, T. G. as a group representative claimed for the establishment that the defendants are jointly liable for the damage incurred by the Group Members (former shareholders of the company (…) S.A. covered by a squeeze out procedure related to 100,069,611 shares which represent (…) share capital of the company (…) S.A., implemented on 31st May 2016 as a result of the company’s notice). The damage consists of receiving, in the squeeze out procedure, a share price which was not an equivalent of its fair value, in particular by spreading false information on its assets value and presenting this value on the lower rate than its market value by the Management Board of the company (…) S.A. in the consolidated financial statements of capital group (…) S.A.. As a consequence, the squeeze out price PLN (…)per share was wrongly assumed in the declaration of the Management Board of (…) S.A. on 16th March 2016 as a fair value.
Each person, who was covered by the squeeze out procedure related to 100,069,611 shares representing (…) share capital of the company (…) S.A., implemented on 31st May 2016 as a result of the company’s notice, i.e. suffered damage consists of receiving a share price which was not an equivalent of its fair value in the squeeze out procedure, may join the group in the present group proceedings by submitting a declaration on joining the group.
The declaration should be submitted to the group representative – T. G., via the (…)law office sp. k. within a non-extendable three-month term as of the date of notification hereof.
After the lapse of the abovementioned term, joining the group will be inadmissible.
(…)
- After receiving an invoice, pay the price for the announcement in the ‘RP’ daily paper from the advance paid by the plaintiff.
- Subsequently send an obligation to indicate at what stage the proceedings in the case of file ref. no. PO II Ds. 46.2017 are currently in and to send copies of all issued decisions together with reasonings, records of examination of witnesses or suspects, and in the case of an expert opinion, also a copy thereof, to the District Prosecutor’s Office (as in the order on page 3,686) on the correct address: District Prosecutor’s Office in W. – (…) ul. (…) (…) W.
- calendar 30 days.
Karolina Toczyńska, Regional Court Judge
- A person making a declaration on joining a group is intending to produce not so much a substantive legal effect as a specific procedural effect, however, this effect occurs only at the moment when the list of persons who have joined the group is presented to the court (Article 12(2) of the Act on Pursuing Claims in Group Proceedings), and provided that the representative decides to include the person making the declaration on that list. Therefore, even if the declaration is in a certain sense a substantive law statement, then absolute application thereto of the provisions on making a declaration of will does not seem to be appropriate.
- The content of the decision on the announcement on commencement of the group proceedings does not determine or limit the factual basis which the claims of individual group members are based on. It is for the court to decide which claims are to be heard in group proceedings, in its decision to hear the case in group proceedings. The announcement is therefore of informative nature.
- Missing declarations on joining the group may be supplemented upon the representative’s request.
