Decision of the Regional Court in Warsaw 3rd Civil Division of 29th January 2014

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  1. The basis for assessing the consumer nature of claims has to be their source – contracts, in which the group members acted as consumers. Persons who signed – not in the scope of theirs business activity – contracts with the housing cooperative on building or buying rights to the flats and parking places – are consumers.
  2. The situation of group members should be identical at a glance and cannot require the hearing of evidence at the preliminary stage of the proceedings, when the general premises of group proceedings admissibility are examined. Claims of group members are not based on a common factual basis, if the hearing of evidence should be conducted differently in respect to some of as opposed to the other group members.
  3. Provisions concerning group proceedings emphasize the status of a group representative as a sui generis agent, who acts in his own name but in favour of the group. A representative is obliged to return everything to the group members that he or she gained for them while performing the duties of a group representative. If the group members incurred costs of professional legal representation in proceedings handled in favour of them, they are entitled to reimbursement if the judgement awarding costs to the claimant is issued.
  4. In group proceedings it is necessary to distinguish between claimant in the formal and substantive meaning. Although a court decides about the legitimacy of the substantive claims of the group or subgroup members, and by allowing the claims it indicates the amounts due to the group or subgroup members, and though judgement in that regard is an enforcement title, there is the only claimant in these proceedings, and it is the group representative. Although the group or subgroup members may be heard as parties, none of them are parties to the proceedings.
  5. Since group or subgroup members are not parties to group proceedings, it is impossible to reject a statement of claims in relation to them. The court’s prerogative to exclude someone from the group appears after the validation of decision on the admissibility of group proceedings, at the stage when new persons are joining to the case. Before that moment, the court is not entitled to modify the group’s composition.
  6. In group proceedings, it is inadmissible to partially reject a statement of claims, in relation to some group or subgroup members. The claim – in its procedural meaning – is one, adjudged with the claimant – the group representative. There are no grounds for division of this claim and for its partial rejection.

The decision was reversed by the decision of the Court of Appeals in Warsaw of 21st November 2014, file ref. no. VI ACz 4250/14.

Decision of the Regional Court in Wrocław 1st Civil Division of 28th January 2014

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  1. Members of the group, represented by the claimant, pursue only one type of claim, understood in the procedural sense as coming forth by all members of the group with the demand to grant a genetically identical form of legal protection, namely with an action for payment. Members of the group seek to be awarded a specific amount of money, coming forth against the defendant with a homogenous pecuniary claim. If they seek protection of property interests, due to the identity of the goods subject to protection, the homogeneity of the claim is supported also by its property nature.
  2. Claims based on an identical factual status are claims sharing the same factual basis (a sensu stricto precondition) or claims sharing relevant factual circumstances (a sensu largo precondition). Despite the fact that all of them were bound by contracts concluded individually with the defendant company, members of the group invoke the abusive nature of contractual clauses functioning in the model contracts used in the case of each client. In this sense, it was the same factual precondition, while individual differences resulting from the content of individual legal relationships of the group’s members do not result in “separation” of the factual basis of their claims. We deal with the same factual basis of the statement of claims (identity of factual circumstances) when there is a bond based on uniformity of the event being the source of the claim between the group’s members. Claims of each of the members are derived not so much from individual contracts, as from the fact that each of them – according to statements contained in the statement of claims – provided for such a manner of determination of the premises surface area required to set the price which, according to the group’s members, had the characteristics of an abusive clause.
  3. Cases pertaining to claims brought by consumers against entrepreneurs and arising against various bases will be cases for consumer protection. Consumer protection cases are cases arising against consumers’ claims towards the entrepreneur from lease agreements, sale agreements, credit or loan agreements, or carriage agreements. A case arising against agreements aimed at purchasing residential premises in the frames of an investment realised by the defendant in the capacity of a developer, with the aim of satisfying personal residential needs of the group’s members and their relatives, constitutes precisely a case on consumer rights protection.
  4. The principles for standardisation (equalisation) of claims of group’s members and formation of sub-groups consisted in such a specification of claims of individual members of the group in such a manner that to the nominally lowest claim of a given member (members) of the group the nominally closest in terms of the amount claim of another member (members) of the group is attached. Simultaneously, a table was attached to the statement of claims listing group’s members’ claims divided into individual sub-groups with the indication of a member (members) of the group and the claim they are entitled to, division into subgroups and indication of the claim they are entitled to and the claim equalised within the subgroup. The manner of standardisation of claims thus established is compliant with the criteria provided for in Article 2 of the Act.

The judgements of the Regional Court in Wroclaw published on the website were facilitated by the President of the District Court in Wroclaw in 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.

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Decision of the Regional Court in Warsaw-Praga in Warsaw 3rd Civil Division of 28th January 2014

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  1. The Act does not provide the time limit for correction of deficiencies pertaining to declarations on joining the group, providing only that after the lapse of a deadline set forth by the court, not shorter than one month from the date of serving the claimant membership-related charges, the court issues a decision on the composition of the group. This means that correction of deficiencies and misstatements related to accessing the group may be effectively performed after the lapse of the date set forth for joining the group itself. Adopting the contrary view would undermine the sense of conducting group proceedings, which may cover a larger number of individuals (group members) and in frames of which it is difficult to avoid certain oversights or deficiencies – especially in the scope of a declaration on joining the group and the need to collect and meticulously verify required documentation.
  2. At the stage of deciding on the group’s composition it is not the court’s task to adjudicate on the merits of the pursued claims.
  3. A consumer should benefit from the protection provided for in Articles 3851 – 3853 CC, regardless of the fact whether he is a party to a contract directly or a cessionary. The circumstance that certain group members joined a group on the grounds of an assignment agreement does not impact the sameness of the factual basis of the group proceedings, and therefore its admissibility.

Decision of the Regional Court in Katowice 2nd Civil Division of 19th December 2013

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  1. In the Court’s opinion, the members of the group are pursuing one type of claims, based on the same factual basis, since they derive them from the termination of their agreements for the heat supply, effective on 31st August 2013. Hence, they comply with the conditions mentioned in Article 1.1 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings.

The decision was reversed by the decision of the Court of Appeals in Katowice of 4th July 2014, file ref. no. I ACz 260/14.

Judgment of the Regional Court in Warsaw 2nd Civil Division of 17th December 2013

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  1. A declaratory judgment rendered in group proceedings rather corresponds to an interlocutory judgment known for a long time in classical civil proceedings. This would mean that group proceedings would cover all the premises of legitimacy and contestability of a claim, including the charge of limitation period, leaving only the issue of the value of claims to be settled in further actions.
  2. The argument that Article 2 (3) of the Act on Pursuing Claims in Group Proceedings directly excludes legal interest as a prerequisite of class action, cannot be successfully used to undermine the thesis stated hereinbefore. It seems that the rationale of the regulation was to prevent the dismissal of a claim for establishment of one’s liability due only to the fact that submitting a demand for performance was possible. This would mean that ’an  action for establishment of liability in group proceedings has become a particular type of an action in group proceedings, not identical one with the claim for establishment of liability regulated under the Code of Civil Procedure, similarly as the claim for performance in group proceedings shows characteristics setting it apart from a classical claim action.

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

Presiding Judge: Tomasz Wojciechowski, Regional Court Judge

Judges: Sylwia Urbańska, Regional Court Judge, Katarzyna Waseńczuk, District Court Judge (delegated)

having examined on 17th December 2013 the case filed by the Poviat of (…) as the representative of the group of Poviats (…) against the State Treasury – the Minister of Infrastructure and Development represented by the Office of the Attorney General of the State Treasury

for the establishment

hereby decides to:

  1. dismiss the claim;
  2. award from the Poviat of (…) to the State Treasury – the Office of the Attorney General the amount of PLN 10,800 (ten thousand eight hundred złoty) as the costs of the proceeding;
  3. establish the final court fee in the amount of PLN 5,000 ;
  4. order the State Treasury to reimburse the Poviat of (…) with the amount of PLN 5,000 as the differential amount between the final and temporary court fee.

Decision of the Regional Court in Warsaw 3rd Civil Division of 27th November 2013

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The decision was changed by the decision of the Court of Appeals in Warsaw, 6th Civil Division of 25th March 2014, file ref. no. VI ACz 4778/13, by dismissing the defendant’s motion for obligating the claimant to make a deposit.

  1. The manner of determining the deposit is based on the establishment of a probable total of costs to be borne by the defendant in group proceedings.
  2. The deposit for securing the costs of group proceedings aims to secure the defendant’s interests against an unsubstantiated initiation of group proceedings and is to guarantee that the claimant will reimburse the defendant for the costs incurred thereby.

Decision of the Regional Court for Warsaw-Praga in Warsaw 3rd Civil Division of 24th September 2013

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The Regional Court for Warsaw-Praga, 3rd Civil Division in the following ruling bench:

Presiding Judge:  Ewa Dietkow, Regional Court Judge

Judges:  Beata Karczewska-Mazur, Regional Court Judge, Radosław Olszewski, Regional Court Judge

having examined on 24th September 2013 in Warsaw at the hearing in camera the case filed by S.P. against J.W. (…) joint-stock company for payment

hereby decides to:

  1. publicly announce the commencement of the group proceedings in the case filed by S.P., acting as the representative of the group, against (…) joint-stock company, file ref. no. III C 491/12 for payment, by displaying the the following announcement in the court’s building for a period of one month:

‘The Regional Court for Warsaw-Praga in Warsaw, 3rd Civil Division hereby announces that under the Polish Act on Pursuing Claims in Group Proceedings, a class action with file ref. no. III C 491/12 was initiated to the statement of claims filed by S.P. against (…) joint-stock company for payment of undue performance paid to the defendant on the grounds of “preliminary sales contracts”‘ for residential premises which included valorization clauses providing for the defendant’s right to independently and unilaterally raise the price of the residential premises after the conclusion of the preliminary contract without granting the consumer the right to withdraw from the contract in connection with the increase in the price.

The Regional Court for Warsaw-Praga in Warsaw informs about the possibility of joining the proceedings available to parties whose claims might be included in the class action – by way of submitting a written declaration on joining the group to the representative of the group: S.P., ul. (…), in W. (…), (…)-(…) W., represented by R.P., attorney-at-law, within the time period of 3 months as of the day of the publication of the announcement.

Individual subgroups were created on the understanding that the value of the pursued claims is equal in each group. The value of the claims was standardised – to the lowest value appertaining to a subgroup member, each of the subgroups having at least 2 members. Furthermore, the claim in the scope of the interest was standardised by way of counting them as of the day of the service of the statement of claims until the day of payment. Each subgroup is thus entitled to a claim as follows: PLN 25,606.30 (subgroup 1), PLN 10,000.00 (subgroup 2), PLN 5,901.29 (subgroup 3), PLN 7,502.87 (subgroup 4), PLN 13,550.00 (subgroup 5), PLN 19,923.27 (subgroup 6), PLN 30,000.00 (subgroup 7), PLN 17,234.36 (subgroup 8).

The rules of remuneration for the representative’s ’attorney’s remuneration were provided for in the agreement of 15th February 2012 concluded by and between R.P., attorney-at-law, and the representative of the group, S.P., according to which:

a) The attorney is to obtain remuneration for prosecuting the case in the amount of 15% of the gross amount executed from the defendant, payable after the defendant pays, according to the rules provided for in the contract between a group member and the attorney, without prejudice to the point below.

b) In order to join the group a member is obligated to pay a gross lump sum of PLN 1,000.00 for attorney’s costs and expenses incurred in connection with the action, in case of joining the group after the statement of claims was filed, but not more than 15% of the gross pursued claim– the fee is to be paid on the day of joining the group or on the day indicated by the attorney and is not reimbursable. The remuneration of the attorney indicated in pt. 1 is to be decreased by the paid fee.

The Regional Court for Warsaw-Praga in Warsaw informs that the judgment rendered in the case will be binding on all the persons who have joined the proceedings.’

  1. to call the representative of the group, S.P., to pay an advance in the amount of PLN 3.000,00 for the costs connected with the publishing of this announcement in the press – within a period of 2 weeks– under pain of abstaining from the publishing of the announcement until that moment.

Decision of the Regional Court in Warsaw 2nd Civil Division of 24th September 2013

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  1. The decision concerning composition of the group which is rendered pursuant to Article 17 of the Act on Pursuing Claims in Group Proceedings, may only decide on granting the group member status to persons who, following the announcement on commencement of the group proceedings, submitted declarations on joining the group to the group representative. Therefore, the court may not reassess whether the persons who joined the group at the stage of filing the statement of claims met the premises required by the Act. This is because with respect to these persons, the decision on examining the case in group proceedings resulted in determining the composition of the group. The conclusion of that stage of group proceedings means that objections in respect to the composition of the original group may not be raised.
  2. The burden of presenting facts in favor of admissibility of group proceedings, a particular person’s participation in a subgroup, as well as the burden of submitting to court the evidence proving these facts, shall rest with the group representative. The consequence of a failure to comply with this obligation at the stage following the announcement on commencement of group proceedings and submission of the declaration on joining the group by new members is a refusal to grant the group member status.
  3. Submitting a declaration on joining the group dies not suffice to prove that a person belongs to the group; at this stage, the Act on Pursuing Claims in Group Proceedings requires verifiable evidence to be submitted. Participation of particular individuals in the group may be proved by all means of evidence.  
  4. However, the Act on Pursuing Claims in Group Proceedings does not require a declaration on joining the subgroup, indeed not only does a failure to indicate the amount of demand preclude qualification of individuals freshly joining the proceedings to a particular subgroup but also – to the group in general.  

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

Presiding Judge: Sylwia Urbańska, Regional Court Judge

Judges: Tomasz Wojciechowski, Regional Court Judge; Katarzyna Waseńczuk, District Court Judge (delegated)

having examined on 24th September 2013 in Warsaw at the hearing in camera the case filed by K. S. (1) acting as a group representative on behalf of [15 people] against (…) Zakład (…) S.A. in W. for payment, as regards the establishment of the group compostition,

hereby decides to:

refuse to grant a status of the group member to the following people: [personal data of the group members].

Decision of the Regional Court in Kraków 1st Civil Division of 10th September 2013

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The Regional Court in Kraków in the following ruling bench:

Presiding Judge: Ewa Olszewska, Regional Court Judge

Judges: Anna Rakoczy, Regional Court Judge; Andrzej Żelazowski Regional Court Judge

having examined on 10th September 2013 at the hearing in camera the case filed by (…) against (…) for payment,

decides:

that the group consists of: [data of the group members].

Decision of the Regional Court in Warsaw 2nd Civil Division of 3rd September 2013

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  1. A demand for the establishment of a defendant’s liability combined with a demand for the establishment that in relation to each member of the group circumstances mentioned in Article 446.3 of the Civil Code occurred, i.e. deterioration in the living standard after the death of a relative, is a claim which does not meet the homogeneity criterion.
  2. The notion of liability in the Act on Pursuing Claims in Group Proceedings should be understood according to the general principles – as a sanction related to a negative assessment of the obligated party’s conduct – i.e. an obligation to provide a performance. Therefore, it is inadmissible to limit a court’s decision to establishing that the defendant holds liability for a specific event, omitting an examination whether a member of the group sustained damage as a result of this event. Establishment in the meaning of Article 2.3 of the Act should be understood analogically as in a declaratory action based on Article 189 of the Code of Civil Procedure, and hence, the establishment at hand means the examination by the court of all prerequisites of liability.
  3. In the Court’s opinion, the provision of Article 446.3 of the Civil Code from which the group members derive their claims provides for the protection of financial interests. In the event of a death of the closest person, the protection of personal interest in the form of a family bond is presently guaranteed by Article 446.4 of the Civil Code. The claim from Article 446.3 of the Civil Code for damages for the closest family members of the deceased on the grounds of significant deterioration of their living standards is not a claim aimed at the protection of personal interests.
  4. At the stage of examination of the admissibility of hearing the case in group proceedings, circumstances of potential significance for the content-related decision remain outside of the object of examination – in the case at hand this refers to the defendant’s allegations regarding the lack of the State Treasury’s liability and the defence of limitation. The potential legitimacy of the claims does not constitute a prerequisite for initiating a group proceedings.

The decision was changed by the decision of the Supreme Court of 28th January 2015, file ref. no. I CSK 533/14.