Judgement of the Regional Court in Warsaw 1st Civil Division of 14th February 2018

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  1. Social security is a function and duty of the State, and the Constitution of the Republic of Poland says nothing about the possibility (or lack of) the partial privatisation of this function. The issue of health care or education is similar. It is undisputed that OFE (Open Pension Funds) are a private legal way of performing the State’s constitutional task, similarly to private hospitals and universities, and this possibility was not questioned by the Constitutional Court. I C 599/14.
  2. (…) redemption of accounting units and their transfer to the Social Insurance Institution (ZUS) are not legal acts towards which establishing their validity pursuant to Article 189 of the Code of Civil Procedure is possible. Regardless of the doctrine definition of the term “legal act”, it is commonly assumed that the necessary part of any legal act, and at the same time exclusively defining it, is the declaration of will. Meanwhile, both the redemption of accounting units and the transfer of their equivalent to the Social Insurance Fund (FUS) does not contain a declaration of will, but constitutes a technical act in the performance of an instruction of a statutory provision which cannot be subject to control – in the scope of Article 58 § 1 of the Civil Code – by way of a claim provided for in Article 189 of the Code of Civil Procedure (judgment of the Supreme Court of 19th January 2012, IV CSK 217/11). Article 58 of the Civil Code refers only to legal actions (or declarations of intent), but does not apply to events that are not legal actions. Therefore, it is not possible to determine, by way of a claim based on Article 189 of the Civil Code of Civil Procedure, the invalidity of technical actions.

 

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

Presiding Judge: Rafał Wagner, Regional Court Judge

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

having examined on 1st February 2018 in Warsaw at the hearing in camera, the case filed by P.K. – the group representative, consisting of : K. A., T. A., E. B., J. B., R. C., J. F., I. G., D. G., K. G., M. G., G. J., P. J., W. K., A. K., M. K., T. K., J. K., M. Ż. (1), G. M., M. M., T. M., J. N., J. O., K. O., M. O., P. P. (1), A. P., P. P. (2), J. P., M. P., J. R., R. R., E. S., S. S., A. S., A. S., K. S., M. S., J. T., I. T., P. W., I. W., M. W., J. W. (1), S. W., J. W. (2), A. W., J. W. (3), J. Z. (1), G. Z., J. Z. (2), M. Ż. (2) [52 persons] 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,

hereby decides to:

  1. dismiss the claim;
  2. waives the obligation to charge the claimant with the costs incurred by the defendants in the proceeding.

Decision of the Regional Court in Gdańsk 1st Civil Division of 12th February 2018

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

Presiding Judge:            Karolina Sarzyńska, Regional Court Judge

Judges:                            Małgorzata Janicka, Regional Court Judge

Ewa Karwowska, Regional Court Judge

having examined on 12th February 2018 in Gdańsk at the hearing in camera the case filed by the District Consumer Ombudsman in Szczecinek acting as a group representative against B. Spółka Akcyjna with its registered office in Warsaw for establishment of the defendant’s liability, alternatively, for the shaping of a legal relationship,

hereby decides to:

order the publication of the announcement on the commencement of group proceedings in the press, by addressing the publisher of the Rzeczpospoilita daily with a request for publication of the announcement with the following content:

“Group proceedings have been initiated before the Regional Court in Gdańsk 1st Civil Division, under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2010, No. 7, item 44) by the District Consumer Ombudsman in Szczecinek against Bank (…) Spółka Akcyjna with its registered office in Gdańsk for the establishment of the defendant’s liability, alternatively, for the shaping of a legal relationship, file ref. no. I C 245/15.

The District Consumer Ombudsman in Szczecinek as a group representative requested the court to determine the non-existence or the invalidity of the contractual legal relations resulting from the credit agreements (…).

(…)

Alternatively, the claimant requested the court to determine that the group members are not bound by the credit agreements (…).

(…)

Each person whose claim may be included within the present statement of claims may join the case by filing a written declaration on joining the group within the deadline of three months as of the date of publication of this announcement and by sending the declaration to the group representative – District Consumer Ombudsman in Szczecinek, address for service: (…) Kancelaria Prawna sp. j. ul. (…). The statement template is available at: www.law24.pl.

After the lapse of the abovementioned deadline, joining the group will not be admissible.

(…)”.

Decision of the Regional Court in Warsaw 24th Civil Division of 1st February 2018

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  1. The necessity to pursue ‘one type of claim’ in group proceedings means that all group members are required to seek damages or the establishment or shaping of a legal relationship or law. However, this does not mean that it is not admissible to submit more than one claim in group proceedings. Group members may submit different types of claims, provided that all of these claims are sought by all group members.
  2. The fact that the basic circumstances making up the factual basis of the claim are the same for a sufficient number of persons is sufficient for the implementation of group proceedings. The convergence of all circumstances constituting a factual basis of individual group members’ claims is not absolutely necessary.

The Regional Court in Warsaw 24th Civil Division in the following ruling bench:

Presiding Judge:            Katarzyna Bojańczyk, Regional Court Judge

Judges:                             Paweł Pyzio, Regional Court Judge

 Agnieszka Bedyńska-Abramczyk, Regional Court Judge

having examined on 1st February 2018 in Warsaw at the open hearing the case filed by Municipal Consumer Ombudsman of the Capital City of Warsaw against (…) S.A. with its registered office in W. for payment and establishment of the defendant’s liability,

hereby decides to:

examine the case in group proceedings.

Decision of the Regional Court in Warsaw 25th Civil Division of 30th January 2018

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  1. If only one of the potential demands pursued in group proceedings is common for 10 group members, the whole statement of claims may be examined under the Act on Pursuing Claims in Group Proceedings.
  2. In group proceedings, the statement of claims is regarded as a complete whole and it is not possible for the statement of claims to be rejected towards certain group members and at the same time not be rejected towards the others. The group representative acts on their own behalf (Article 4.3 of the Act on Pursuing Claims in Group Proceedings) and they merely have the right to stand in the proceedings – the group representative is the only a claimant. It is not possible to reject the statement of claims filed by individuals who are not claimants.
  3. All changes concerning the demand of the statement of claims connected with the limitation of the claim require the consent of more than half of the group members (Article 19.1 of Act on Pursuing Claims in Group Proceedings). That is why, the order to correct formal defects cannot aim to withdraw a part of the suit or limit the claim. Such transformations of the suit cannot be required in the form of the order to correct formal defects.

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

Presiding Judge:            Anna Błażejczyk, Regional Court Judge (rapporteur)

Judges:                            Dorota Kalata, Regional Court Judge

Monika Włodarczyk, Regional Court Judge

having examined on 30th January 2018 in Warsaw at the hearing in the group proceedings the case filed by District Consumer Ombudsman in P. against (…) Bank S.A. in W. for payment, alternatively for the establishment of the defendant’s liability, and the case filed by the District Consumer Ombudsman in P. against (…) Bank S.A. in W. for the establishment of the defendant’s liability, alternatively for shaping of the legal relation,

hereby decides to:

examine the cases in group proceedings.

Decision of the Regional Court in Warsaw 20th Commercial Division of 26th January 2018

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The Regional Court in Warsaw 20th Commercial Division in the following ruling bench:

Presiding Judge:                   Maciej Kruszyński, Regional Court Judge

having examined on 26th January 2018 in Warsaw at the hearing in camera, the case filed by (…) sp. z o.o. in W., against (…) (…) in N. (Cyprus) for the protection of copyrights and related rights in group proceedings

hereby decides to:

  1. establish that (…) sp. z o.o. w W., (…) Wydawnictwo (…). (…) sp. z o.o. sp.k. in G., Wydawnictwa (….) S.A. in W., (…) sp. z o.o. in K., Wydawnictwo (…) sp. z o.o. in G., Wydawnictwo (…) sp. z o.o. in W., (…) sp. z o.o. in W.., (…) sp. z o.o. in W., (…) sp. z o.o. in P., Wydawnictwo (…) sp. z o.o. in P., Wydawnictwo (…) A. in W., (…) sp. z o.o. in W. are members of the group in the group proceedings;
  2. establish that (…) S.A. in W., Wydawnictwo (…) Sp. z o.o. in W. are not members of the group in the group proceedings.

Decision of the Regional Court in Warsaw 25th Civil Division of 26th January 2018

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  1. The criteria of group membership are in each case determined by the decision on examining the case in group proceedings.
  2. Charges aimed at demonstrating that a particular person does not fulfil the group membership requirements of participation in the group may be based on: a charge of the lack of the same or equal factual basis of the claim as the claims indicated in the decision on examining the case in group proceedings; the charge that the particular group member’s claim is not homogenous with the claims indicated in the decision on examining the case in the group proceedings; the charge that the amount of pecuniary claim is not standardized with the amount of the other group or subgroup members’ claims; the charge that standardization of the particular group or subgroup member’s claim is not justified by joint circumstances; or a charge that the particular group member’s claim, contrary to the other group members’ claims, does not fall within the objective scope of the Act on Pursuing Claims in Group Proceedings. The allegations may be also based on a failure to comply with the procedural requirements for joining the group.

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

Presiding Judge:            Krystyna Stawecka, Regional Court Judge

Judges:                            Anna Błażejczyk, Regional Court Judge

Tomasz Gal, Regional Court Judge

having examined on 26th January 2018 in Warsaw at the hearing in camera the case filed by J. K. (1) – group representative against Bank (…) S.A. in W. for payment,

hereby decides to:

  1. resume the stayed proceedings with the participation of a new group representative K. P.;
  2. establish the composition of the group, divided into subgroups, which consist in the following persons:

– subgroup 1: [2 persons] (PLN (…));

– subgroup 2: [4 persons] (PLN (…));

– subgroup 3: [3 persons] (PLN (…));

– subgroup 4 : [4 persons] (PLN (…));

– subgroup 5: [3 persons] (PLN (…));

– subgroup 6: [3 persons] (PLN (…));

– subgroup 7: [5 persons] (PLN (…));

– subgroup 8: [2 persons] (PLN (…));

– subgroup 9: [3 persons] (PLN (…));

– subgroup 10: [3 persons] (PLN (…));

– subgroup 11: [3 persons] (PLN (…));

– subgroup 12: [5 persons] (PLN (…));

– subgroup 13: [4 persons] (PLN (…));

– subgroup 14: [5 persons] (PLN (…));

– subgroup 15: [3 persons] (PLN (…));

– subgroup 16: [3 persons] (PLN (…));

– subgroup 17: [2 persons] (PLN (…));

– subgroup 18: [2 persons] (PLN (…));

– subgroup 19: [4 persons] (PLN (…));

– subgroup 20: [6 persons] (PLN (…));

– subgroup 21: [3 persons] (PLN (…));

– subgroup 22: [2 persons] (PLN (…)).

Decision of the Regional Court in Warsaw 3rd Civil Division of 5th December 2017

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

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

Judges:                            Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 5th December 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

/on the subject of the amendment of the decision; granting the claimant’s motion of 17th November 2017; pages of records no. 8.256-8.257/

hereby decides to:

amend the decision of the Regional Court in Warsaw issued in the subject case on 10th October 2017 regarding the announcement on the commencement of group proceedings, what was set out in point II of the ruling by publishing the announcement with the wording provided for in point I of the decision in the (…) section of the “(…)” daily. The costs of the publication will be temporarily covered from the budget of the State Treasury – the Regional Court in Warsaw.

Decision of the Regional Court in Warsaw 3rd Civil Division of 27th November 2017 r.

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  1. According to the Act on Pursuing Claims in Group Proceedings, a class action is admissible only when the group is homogenuous. The group which consists of members who acquired their cars: in Germany, 20 directly in Poland, 6 as the lessee in Poland, 15 as the secondary buyer in Poland, 3 members as the result of donation in Poland and 3 as the buyer after the end of leasing agreement may not be deemed homogenuous. For these reasons the statement of claims should have been rejected.
  2. The relations between the group members and the representative of the group should be considered as a type of agency.
  3. In case of statements of claims pursued in group proceedings, the group representative possesses the formal legal capacity, whereas group members hold the substantive legal grounds for pursuing the claim. It should be emphasised that there are differences between class action proceedings and standard civil proceedings in pointing to the fallibility of the traditional concept of procedural substitution.
  4. It is necessary to make a distinction between the formal legal capacity and material legal grounds for pursuing a claim in group proceedings. Although the court decides on the substantive legitimacy of the claims pursued by each group or subgroup member and the judgment issued on these grounds is an enforcement order respectively, it should be emphasised that there is only one claimant in the proceedings – the group members’ representative. Although the group members can be examined as a party in the proceedings, in fact they are not a party thereto.
  5. Therefore, if the group members are not a party to the proceedings, the statement of claims may not be rejected in relation to a part of them, simply because it is impossible to reject a claim in relation to an entity who is not a party to the proceedings.
  6. It is impossible to reject a statement of claims partially, because only one claim is pursued in group proceedings. If separate claims of every group member were the object of the proceedings, the court would to award specific amounts to the group members’ benefit, and not the whole to the representative of the group. This is not the case. In procedural terms, in group proceedings there is only one claim, which is awarded to the benefit of the claimant – the group representative. Hence, there are no legal grounds for dividing and partially rejecting the claim.
  7. The group members’ situation should be identical already at first glance and this may not require an examination as to the evidence already at the initial stage of the litigation only to check whether the statement of claims may be partially rejected when the prerequisites of the admissibility of group proceedings are examined in general.
  8. It is impossible to reject a statement of claim concerning the group representative’s part of the claim and prosecute the case further without them. Other members of the group are not parties to the proceedings in the case, therefore a partial rejection of the statement of claims in the part regarding the group representative’s claim will result in the lack of a claimant in the proceedings.

Decision of the Regional Court in Warsaw 3rd Civil Division with the following ruling bench:

Presiding Judge:            Joanna Bitner, Regional Court Judge (rapporteur)

Judges:                            Ewa Jończyk, Regional Court Judge

Grzegorz Chmiel, Regional Court Judge

having examined on 13rd November 2017 at the hearing in Warsaw the case filed by D.C. as the group representative against V. (…) with its registered office in W. (N.) for payment,

hereby decides:

  1. to reject the statement of claims;
  2. to charge the claimant with the costs of the proceedings, leaving the calculation thereof to the court clerk upon the decision becoming final and binding, whereby remuneration of the defendant’s attorney should amount to an equivalent of a 6-fold minimal rate.

Judgement of the Regional Court in Kraków 1st Civil Division of 19th October 2017

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  1. The doctrine and jurisprudence emphasise that the danger for citizens’ life, health and property, brought by the flood, causes the necessity to secure the social order in an organised manner. Public administration bodies (government and self-government) must be involved in this task, as they are responsible for providing flood protection. This goal may be achieved only by taking actions in the imperative form through the use of prohibitions, orders and appropriate restrictions, and the forms of such imperative actions can be used solely by public administration authorities. In the light of the above, there is no doubt that all activities in the field of flood protection, i.e. those aimed at minimising the risk related to the flood by creating an appropriate flood protection system, as well as those involving a quick reaction in the event of a real flood risk should be classified as belonging to the imperium
  2. In the Polish legal system, tasks in the field of the protection of citizens and property against flood are divided between a number of entities and bodies of government and self-government administration, and these entities should cooperate with each other and coordinate activities at various levels of the system. Hence, there is a necessity to establish the liability of many entities for damage suffered by group members, since one entity is responsible for the condition of the embankment, another for the embankment area, another for the condition of the river bed, and yet another for the coordination and conducting of anti-flood actions, and only all these tasks undertaken comprehensively can provide adequate flood protection. Contrary to the arguments of the defendant State Treasury, the civil structure of the complex tort is adequate to such a situation.
  3. The doctrine states that joint and several liability may arise only for one damage. The indivisibility of the damage takes place when, in the area of legally protected goods, it is impossible to mark (separate) damage caused by the actions of the individual entities, who are liable for the damage. The arisen joint and several liability related to the commission of a tort creates the same liability for all joint and several debtors. Its scope is the same for each of them, regardless of the degree of fault, the contribution to the damage or other circumstances.
  4. It is doubtful that in case for establishment of the liability for damages, it would be possible to raise the defence of limitation, since this institution concerns only the right to claim the benefit.

 

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

Presiding Judge:            Marta Woźniak, Regional Court Judge

Judges:                            Agnieszka Włodyga, Regional Court Judge

Ewa Olszewska, Regional Court Judge

having examined on 19th October 2017 in Kraków at the hearing the group action filed by Z. R. acting as a representative of a group consisting of [data of group members] against the State Treasury – Voivode Ś., Director of the Regional Board for Water Management in K.; the Ś. Voivodeship; S Poviat.; S. Municipality , for establishment,

decides to:

  1. establish the joint and several liability of the defendants: the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship for damages caused to the members of the group consisting in [data of 27 group members], resulting from the complex tort committed by the defendants: the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship consisting in the unlawful exercising of public authority in the field of flood protection (improper fulfilment of obligations) by the defendants, in the area of the S. Poviat of in the Ś. Voivodeship, which led to water overflow through the crown of the flood embankment located along the W. River in the district of the K. Municipality of S., located on plot of land no. 1407, precinct 5 right-bank S., and its interruption as a result of blurring on 19 May 2010, and to further consequences related to this event,
  2. dismiss the action in the remaining part,
  3. determine the final court fee for the action at the amount of PLN 100,000 (one hundred thousand zlotys),
  4. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 124,020 (one hundred twenty four thousand and twenty zlotys) to the benefit of Z. R. (a group representative) as reimbursement of the costs of the proceedings,
  5. order the Ś. Voivodeship to pay the amount of PLN 96,600 (ninety six thousand six hundred zlotys) to the benefit of the State Treasury – the Regional Court in Kraków as a missing part of the court fee for the action,
  6. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 42,711.70 (forty two thousand seven hundred eleven zlotys and 70/100) to the benefit of the State Treasury – the Regional Court in Kraków as a missing part of the amount for the expenses incurred in the case,
  7. order the Z. R. (a group representative) to pay the amount of PLN 7,200 (seven thousand two hundred zlotys) to the benefit of the S. Poviat and S. Municipality, to each of them, as reimbursement of the costs of legal representation,
  8. order the State Treasury – Director of the Regional Board for Water Management in K. and the Ś. Voivodeship to jointly and severally pay the amount of PLN 7,200 (seven thousand two hundred zlotys) to the benefit of Z. R. (a group representative) as reimbursement of the costs of legal representation.

Decision of the Regional Court in Warsaw 3rd Civil Division of 10th October 2017

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The decision was changed in point 2. by the decision of the Regional Court in Warsaw 3rd Civil Division of 5th December 2017, III C 1089/15.

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

Ewa Jończyk, Regional Court Judge

Agnieszka Matlak, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 10th October 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for payment,

/on the subject of the announcement on commencement of group proceedings/

decides to:

  1. publish an announcement in the (…) section of the ‘(…)’ daily newspaper on the commencement of the group proceedings with the following content:

’Under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2010, No. 7, item 44), a class action was initiated by the Municipal Consumer Ombudsman in O. (file ref. no. III C 1089/15) before the Regional Court in Warsaw 3rd Civil Division against Bank (…) S.A. with its registered office in W. (Bank) for the return of amounts collected by the Bank from the Bank’s clients as a  low own contribution insurance policy (hereinafter referred to as: „UNWW”) for mortgage loan/ consolidation loan ((…)).

(…)

Interested parties may join the class action within the term of 3 months, which cannot be exceeded, from the date of notification of that announcement. The term cannot be reinstated or extended.

(…)

In order to join the group, a written declaration on joining the group should be filed. The declaration shall be submitted to the group representative – the Municipal Consumer Ombudsman in O., through the one of the following counsels who represent him: Z. D., attorney-at-law M. S., legal counsel , J. M., attorney-at-law, and K. W., attorney-at-law (common address for service: Kancelaria (…), T. i Wspólnicy Sp. k., ul. (…), (…)-(…) W., e-mail: (…)).

(…)”.

  1. obligate the claimant, through the counsel, to publish an announcement in the (…) section of the ‘(…)’ daily newspaper and to submit evidence that the order is complied with, within 3 (three) weeks, on the pain of publishing the announcement by the Court at the claimant’s cost.