Order of the Presiding Judge of the Regional Court in Warsaw 16th Commercial Division of 18th November 2016

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Announcement on the commencement of group proceedings

Pursuant to the Polish Act on Pursuing Claims in Group Proceedings, group proceedings were opened before the Regional Court, to the statement of claims of (…) Ltd in W. against (…) joint-stock company in W., file ref. no. XVI GC 352/15. (…) Ltd, as the representative of the group, for damages with statutory interest for each of the group members. The claimant indicated that she represented a group composed of insurance agents who pursue their claims arisen from the defendant’s activity being an advertising campaign conducted in 2008 which breached rules of fair competition by means of discouraging clients from using the services of insurance agents.

In the judgment dated 8th January 2010 (file ref. no. XVI GC 554/08), the Regional Court in Warsaw concluded that these commercials infringe upon the rules of fair competition and thus imposed a ban on broadcasting them. The claimant claimed that as a result of the advertising campaign many insurance agents suffered damages because of a drastic decrease in clients’ interest, this being the reason of loss of profits.

Each person whose claim can be included in the class action, can join the group by submitting a written declaration within 2 months of  the publishing of this announcement – to the representative of the group – (…) Ltd in W., address for service: (…)

Joining the group after the given date is inadmissible.

Submitting such a declaration is equivalent to granting consent to (…) Ltd acting as the representative of the group and to the rules of the representative’s remuneration, which is 20 % of the total amount awarded from (…) joint-stock company to (…) Ltd in a judgment or in a settlement.

A legally valid judgment is binding on all the group members, meaning all the persons who submitted a declaration on joining the group before the deadline and thus were indicated in the court’s decision on establishing the group’s composition.

Maria Zgiet – Zawadzka, Regional Court Judge

Decision of the Regional Court in Warsaw 20th Commercial Division of 17th November 2016

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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 17th November 2016 in Warsaw at the hearing in camera, the case filed by (…) limited liability company in W., against FS F. (…) in N. (Cyprus) for the protection of copyrights and related rights in group proceedings, following the claimant’s motion for an injunction,

hereby decides to:

dismiss the motion.

Decision of the Regional Court in Warsaw 2nd Civil Division of 9th November 2016

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

Presiding Judge:            Marcin Polakowski, Regional Court Judge

Judges:                            Sylwia Urbańska, Regional Court Judge

Katarzyna Waseńczuk, Regional Court Judge

having examined on 9th November 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,

following the defendant’s motion to reject the statement of claims within the scope of the extension indicated in the letter of 5th June 2016,

decides to:

refuse to reject the extension of the statement of claims regarding the new claim lodged by the letter of 5th June 2016.

Decision of the Regional Court in Warsaw 3rd Civil Division of 4th November 2016

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The decision was corrected by the decision of the Court of Appeals in Warsaw 6th Civil Division of 6th December 2017, VI ACz 1357/17

  1. The condition of the identical factual basis is met when the facts substantiating the existence of the legal relationship, which is the basis of the claims, are equal for all group members. The essence of the group proceedings is the commonality manifest in the demand which must be typical (common) for all claims.
  2. In the court’s opinion, during the examination of the premise of the same factual basis of the claims, the circumstances which have significance for the final ruling, not any circumstances which appear under contracts, should be taken into account.
  3. Article 2 (1) of the Act on Pursuing Claims in Group Proceedings explicitly refers to standardization of the amount of claims, not to standardization of claim value calculation rules. The standardization of a claim involves each member of the group, therefore the consent thereto should be expressed by all group members. The standardization of the claims should be carried out done on the grounds of common circumstances of the case, i.e. the same for all group members and simultaneously different from these which determined the separation of other groups.
  4. Rendering a decision on examination of the case in group proceedings is not a directional judgment, which somewhat – in the case of finding the procedure advisable –automatically cause the necessity to render a judgment in favor of the Claimant. Before the final ruling, in the group proceedings, the court is obligated to reassess the preliminary issues, examined at the previous stages of the proceedings, which decide on the admissibility and form of judgment. Therefore, it is obvious that the reassessment includes all premises of the admissibility of group proceedings (number of members in the group, homogeneity of claims, the same or similar factual basis and the legal classification of claims). The judgment on the merits may be issued only after conclusion that the premises of admissibility are met.
  5. Rendering a decision on the admissibility of group proceedings, pursuant to Article 10 (1) of the Act on Pursuing Claims in Group Proceedings, does not preclude a later ascertainment of inadmissibility of the proceedings at each stage thereof, what results in an amendment of the decision (pursuant to Article 359 CCP) and rejection of the statement of claims.
  6. The optionality of the deposit in group proceedings does not mean discretion. The court shall consider all circumstances of the case in respect to advisability of application of this institution.
  7. The defendant, who files a motion for deposit, should make plausible, firstly, that the action against him is obviously unfounded or the statement of claims is unlikely to be allowed, therefore it has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the cost from the opposite party impossible or significantly more difficult.

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

Agnieszka Rafałko, Regional Court Judge

Ewa Jończyk, Regional Court Judge

Mariusz Solka, Regional Court Judge

having examined on 5th January 2016 in Warsaw at the hearing the class action filed by the Municipal Consumer Ombudsman in S. against V. L. Association (…) S.A. V. (…) with its registered office in W. for payment,

decides to:

  1. examine the case in the group proceedings;
  2. dismiss the defendant’s motion to obligate the claimant to pay the deposit to secure the costs of the proceedings.

Decision of the Regional Court in Warsaw 3rd Civil Division of 28th October 2016

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The following text of the decision is amended by the rectification of 5th December 2016.

The decision has been rectified by the decision of the Regional Court in Warsaw 3rd Civil Division of 5th December 2016, III C 56/15.

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

Presiding Judge:  Joanna Kruczkowska, Regional Court Judge

Judges:  Joanna Bitner (rapporteur), Regional Court Judge, Grzegorz Chmiel, Regional Court Judge

having examined at a hearing in camera on 28th October 2016 in Warsaw the case filed by K.K., the representative of the group, against the Housing Association (…) for the payment of the amount of PLN 1,700,667.19

hereby decides to:

determine that this action shall be prosecuted in group proceedings whereas the group represented by K.K. consists of:

1)    subgroup no. I: [3 group members],

2)    subgroup no. II: [4 group members],

3)    subgroup no. III: [9 group members],

4)    subgroup no. IV: [2 group members],

5)    subgroup no. V: [5 group members],

6)    subgroup no. VI: [2 group members],

7)    subgroup no. VII: [5 group members],

8)    subgroup no. VIII: [2 group members],

9)    subgroup no. IX: [2 group members],

10)  subgroup no. X: [3 group members],

11)  subgroup no. XI: [2 group members].

Decision of the Regional Court in Gdansk 1st Civil Division dated 28th October 2016

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  1. The case on the protection of consumers appears in Article 61 § 1 CCP that determines the scope of activity of non-governmental organisations. According to Article 221 CC, a consumer is a natural person who performs acts in law which are not directly connected with his economic or professional activity. The aim of the activity which has no business aspect, is fundamental.
  2. The status of a given person as a consumer shall be appraised at the moment of performing the act in law. The subsequent changes in the purpose of the acquired good or service shall not lead to the change of a once adopted establishment.
  3. The fact of acquiring the real estate in which the business activity was subsequently led does not mean that the given person was not a consumer on the date of concluding the contract. As well, the fact that the given person runs a business or professional activity in the scope of granting a credit does not mean that he was not a consumer at the moment of concluding the contract with a bank concerning him personally.
  4. The fact that the part of the Members of the Group signed the appendix to the contract does not exclude the possibility of declaring the primary version of the contract null and void. However, the issue of the existence of the legal interest in demanding such a declaration shall be assessed.
  5. Claims based on an equal factual basis are claims based on the same factual basis (a sensu stricte prerequisite) or claims having common essential factual circumstances (a sensu largo prerequisite). That means that the prerequisite of the equal or the same factual basis means that the identical circumstances do not have to be the factual basis of the claim, but the significant similarity of them is sufficient. As a result, the factual basis does not have to be equal but at least the same.
  6. The slight differences may exist between the individual factual basis of respective claims, nevertheless it is indispensable that the essential factual circumstances remain common for all of the claims. Such circumstances common for all of the claims are contracts concluded by the members of the group (…) containing abusive clauses, introducing the identical mechanism based on the bank’s discretion in determining the level of indebtedness of the borrower, that leads, according to the plaintiff, to the invalidity of those contracts.
  7. The legal proceedings of the court regarding the examination of the admissibility of the class action are specific pre-litigation proceedings. The Court decides about the admissibility of the class action only on the basis of assessment of the lawsuit, because it makes a formal-legal appraisal on the admissibility of those proceedings. The Court is not entitled to examine the substantive prerequisites of the claim.

Decision of the Regional Court in Warsaw 25th Civil Division of 24th October 2016

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By the decision of 7th March 2017, file ref. no. VI ACz 177/17 , the Court of Appeals in Warsaw reversed point 2 of the decision and referred the case for reconsideration in that extent.

  1. Before issuing the decision on the admissibility of the group proceedings, the Regional Court should examine whether each of the group members is a consumer within the meaning of Article 221 CC.

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

Presiding Judge:        Anna Błażejczyk, Regional Court Judge

Judges:                       Dorota Kalata, Regional Court Judge, Monika Włodarczyk, Regional Court Judge

having examined on 10th October 2016 in Warsaw at the hearing the action filed by the District Consumer Ombudsman in P. against (…) Bank S.A. in W. for the establishment of the defendant’s liability  possibly for shaping a legal relation,

hereby decides to:

  1. reject the statement of claims in the scope of claims of A. M, W. S., and D. S.,
  2. accept the statement of claims in the remaining scope for hearing in group proceedings.

Decision of the Regional Court in Warsaw 1st Civil Division of 19th October 2016

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

Ewa Ligoń-Krawczyk, Regional Court Judge

Rafał Wagner, Regional Court Judge

Jacek Bajak, Regional Court Judge

having examined on 19th October 2016 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in S. W. against Towarzystwo (…) S.A. with its registered office in W. for payment,

decides to:

I. publish an announcement in 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 S. in. W. against Towarzystwo (…) S.A. with its registered office in W. (‘TU na (…) S.A.’), file ref. no. I C 464/16, before the Regional Court in Warsaw, 1st Civil Division.

The Municipal Consumer Ombudsman in S. W., acting as a group representative, requested for the adjudication from the Defendant – TU na (…) S.A. the return of amounts equal to the value of pecuniary benefits obtained by TU na (…) S.A. without a legal basis in at the expense of the group’s members by way of performance of the invalid acts in law –group members’ invalid declarations of intent submitted to the Defendant to take advantage of the stipulation in their favor of insurance coverage and invalid contracts on endowment insurance policy with insurance capital fund (‘principal claim’).

(…)

Each person, who jointly fulfilled the following requirements:

(…)

may join the group by submitting a written declaration on joining the group within the term of 2 months, which cannot be exceed, as of the date of notification of the declaration and serving it onto the group representative – the Municipal Consumer Ombudsman in S. W., to the address of its legal counsels: A. L. or D. K., (…) s.c., ul. (…), (…)-(…) W.

Joining the group is inadmissible upon the lapse of the above-mentioned time limit.

(…)”;

II. call the group representative’s counsel – the Municipal Consumer Ombudsman in W. to pay within 2 weeks, to the State Treasury – the Regional Court in Warsaw, the amount of PLN 9,000.00 (nine thousand zloty) as an advance payment on the costs of the announcement on the commencement of the group proceedings.

Decision of the Regional Court in Warsaw XXI Labor Division of 11th October 2016

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  1. The conditions of the admissibility of a class action are following: the number of group members (at least 10); homogeneity of their claims, the specific category of the case (consumer protection, cases for liability for a hazardous product and tortious liability), common factual basis of claims, standardization of the value of claims at taking the common factual basis of claims into account.
  2. It is obligatory for a court to consider if the claims are indeed homogenous and based on the same or equal factual basis and whether they belong to one of the categories of claims listed in Article 1 (2) of the Polish Act on Pursuing Claims in Group Proceedings. Only when all these conditions are met cumulatively is it possible to hear the case in group proceedings. A failure to comply with one of these conditions makes it impossible to open group proceedings and leads to rejection of the statement of claims in relation therewith. Optimization of the procedural economics does not belong to the conditions of admissibility of group proceedings.

The Regional Court in Warsaw 21st Labor Division in the following ruling bench:

Presiding Judge:                         Grażyna Otola-Pawlicka, Regional Court Judge

Judges:                                         Małgorzata Kosicka, Regional Court Judge

                                                     Grzegorz Kochan, Regional Court Judge

having examined on 4th October 2016 in Warsaw the case filed by R.K.(1) as a representative of a group of police officers: (…)

against the State Treasury – the Minister of Interior and Administration

for payment

decides to:

reject the statement of claims.

Decision of the Regional Court in Warsaw 24th Civil Division of 15th September 2016

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  1. As a direct result of the provisions of the Act on Pursuing Claims in Group Proceedings, if, from the circumstances of the case it follows that not all of the potential members of the group have already submitted declarations on joining the group, the court decides on the announcement on the commencement of group proceedings.
  2. The announcement on the commencement of group proceedings shall inform about the factual basis of the claims being pursued. A potential group member shall determine whether the factual basis of the pursued claims are identical with or similar to the factual basis of their own claim.

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

Monika Dominiak, Regional Court Judge

Barbara Budzianowska, Regional Court Judge

Urszula Idzikowska, Regional Court Judge

having examined on 15th September 2016 in Warsaw at the hearing in camera in the case filed by the Municipal Consumer Ombudsman in S. – the group representative against (…) S.A. with its registered office in W. for the establishment of the defendant’s liability,

hereby decides to

  1. reverse the decision of the Regional Court in Warsaw 24th Civil Division of 9th June 2016, file ref. no. XXIV C 500/14;
  2. make the announcement on the commencement of group proceedings at the cost of the State Treasury with the following content:

THE ANNOUNCEMENT OF THE COMMENCEMENT OF GROUP PROCEEDINGS

‘Under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws from 2010, No 7, item 44), group proceedings initiated by the Municipal Consumer Ombudsman in S. acting as a group representative against (…) S.A. with its registered office in W., file ref. no. XXIV C 500/14 commenced before the Regional Court in Warsaw, 24th Civil Division. The group currently consists of 71 members. The value of the object of the dispute is PLN 3,197,972.38

The Municipal Consumer Ombudsman in S. as a group representative, motioned for:

1) establishment by the Court that the following general terms of life insurance contracts concluded with the insurance capital fund are unfair contractual terms (…),

2) establishment that if the life insurance contracts concluded by (…) S.A. with group members are terminated before the end of the period of insurance for any reason other than death, the (…) S.A. is obligated to pay the group members the amount of (…).

Each person who jointly fulfilled the following conditions:

(…)

is entitled to join the group by filing a written declaration on joining the group within the non-extendable period of two months as of the date of notification of that announcement and by submitting the declaration to the group representative – the Municipal Consumer Ombudsman in S., to the address of his attorneys –A. L., legal counsel, or D. K., legal counsel (…) s.c., ul. (…), (…)-(…) W.

After the lapse of the abovementioned deadline, joining the group will be inadmissible.