Decision of the Regional Court in Warsaw 21st Labor Division of 15th September 2016

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  1. It is to be noted that the goal of group proceedings, in terms of procedural economics, can be realized on the grounds of the Polish Code of Civil Procedure – in labor law cases with multiple claimants and when separate actions were merged into a single case on the basis of Article 219. Thus the legislator’s will to create a separate piece of legislation for cases of a particular type admissible under strictly determined conditions cannot be disregarded.
  2. Considering whether the claims brought in a class action case are indeed homogeneous and whether they are based on the same or equal factual basis it is to be said that, if the Claimant had brought pecuniary claims but based on two separate legal bases and thus based on different factual and legal bases, such claims do not meet the condition of homogeneity.
  3. A mere formal reference to the wording of Act on Pursuing Claims in Group Proceedings does not meet the statutory requirements if the analysis of the substantiation of the statement of claims reveals that the claim clearly does not belong to any categories listed in Article 1 (2) of the Act on Pursuing Claims in Group Proceedings. What the court should bear in mind is not the legal basis invoked in the statement of claims, but the factual basis invoked by the Claimant as the basis of the claim. An action ’for payment’, without further specification of the nature of demanded pecuniary performance’, results in a necessity of assessing of the factual basis – whether the factual circumstances invoked by the Claimant substantiate the admissibility of a class action (consumer protection, hazardous product liability, tortious liability case).

 

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

Presiding Judge:  Sylwia Kulma, Regional Court Judge (rapporteur)

Judges:  Bożena Rzewuska, Regional Court Judge; Grzegorz Kochan, Regional Court Judge

having examined on 15th September 2016 the case filed by: (…) against the State Treasury – the Minister for Justice for damages

decides to:

  1. reject the statement of claims,
  2. not to charge the costs of the court proceedings to the Claimant.

Decision of the Regional Court in Warsaw 3rd Civil Division of 13th September 2016

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  1. The essence of group proceedings is the commonality manifested in the demand which must be generic (common) for all claims. Therefore, a demand raised by the group representative in a class action must be generic for the entire group he or she represents. The condition indicated means that a legal or factual situation of members of the group must be the same, while the claim pursued must be homogenous (homogeneity of the claims) since only then a joint demand may be raised.
  2. The requirement of a similar factual basis of claims does not mean that all the circumstances of the case must be identical for each member of the group because, even where the claim is based on an identical basis, there will always be individual circumstances, concerning specific members of the group. The condition of the identical factual basis is met when the facts substantiating the existence of a specific legal relationship which is the basis of the claims are identical in relation to all members of the group.
  3. The notion of ‘a claim’ used in Article 1 of the Act on Pursuing Claims in Group Proceedings appears in the meaning of a demand in proceedings. It is impossible to assume that it appears in the substantive law meaning, which should be understood exclusively as a possibility to demand a specific conduct from a given person. Consequently, this notion should not be given a meaning taken strictly from substantive law. Therefore, a claim in proceedings is constituted by a claimant’s claim detached from substantive law and regarding the existence of a certain right, presented to the court in order for it to be granted legal protection.
  4. In light of Article 1 (1) of the Act on Pursuing Claims in Group Proceedings, the pursued claims must be homogenous, i.e. of one kind and based on an equal factual basis. Claims based on an equal factual basis are claims based on an equal factual basis (a sensu stricte prerequisite) or claims having common factual circumstances (a sensu largo prerequisite). The existence of minor differences between individual bases of claims does not eliminate the possibility of pursuing these claims in these proceedings, nevertheless, it is necessary for the substantial factual circumstances to substantiate the demand common for all the claims.
  5. The assessment of a group member’s status as a consumer is not influenced by education, experience, or practiced profession, whereas at the later stage, while examining the content-related legitimacy of the action, deciding whether the content of the questioned contractual provision shaped in the course of the conducted negotiations and establishing how a given provision was understood by parties will be of substantial significance.
  6. In compliance with requirements included in the contents of Article 2 of the Act, claims may be standardised on the basis of common circumstances of the case, and therefore similar for the group members and simultaneously different to those which were decisive for the formation of other groups. The standardisation of claims which is a condition of admissibility of conducting a class action may come down to assuming a lump sum value of claims for all claimants (at least within a subgroup) not exceeding the lowest claim due to one of them.

Order of the Presiding Judge of the Regional Court in Warsaw 20th Commercial Division of 7th September 2016

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  1. To amend the order of 29th August 2016 by way of ordering under Article 11 (1-3) of the Act on Pursuing Claims in Group Proceedings an announcement on the opening of group proceedings, with the content which follows below.
  2. Post the announcement on opening of group proceedings in the printed and online version of the “(…)” daily.
  3. To obligate the claimant’s representative to pay PLN 7,183.20 (in words: seven thousand one hundred and eighty-three zloty and 20/100) as an advance payment for the announcement on the opening of group proceeding within 14 days as of the date of receipt of the summons.
  4. (…)

                                                                            Maciej Kruszyński, Regional Court Judge

 

ANNOUNCEMENT ON OPENING OF GROUP PROCEEDINGS

Under the provisions of the Polish Act on Pursuing Claims in Group Proceedings, a class action filed by (…) with its Registered Office in W. against (…) (in the Czech Republic), file ref. no. XX GC 1004/12 has been initiated before the Regional Court in Warsaw 20th Commercial Division, with 12 members of the group: (…)

(…) in W., as the representative of the group requested:

  1. that the defendant be banned from applying the “File Exchange System” on the (…).pl website administered thereby, the application causing or leading to an infringement of the group members’ property copyright;
  2. ordering the defendant (…) Limited that should it acquire the knowledge or reliable information that a specific work is unlawfully distributed by chomikuj.pl, to prevent access to all the files which contain the work to all parties save for the user who was the first person to post the file on the website;
  3. ordering the defendant (…) that should it acquire knowledge or reliable information that a specific file is unlawfully distributed by chomikuj.pl, it shall prevent access to all identical copies of the files, even though if the name of the copy is not identical with the name of the file itself to all parties save for the user who was the first person to post the file on the website.

The Claimant defined the “File Exchange System” as the following elements of the (…).pl website:

  1. a function of granting points (awards) to users of the (…).pl website for each file download from their account or from the account of such a member who “hamstered” the file;
  2. the function of file “hamstering” – facilitating immediate file copying between users;
  3. the function of “folder hamstering” enabling the users to hamster entire folders regardless of their content and size;
  4. the function of “folder download” enabling the users to download entire folders, regardless of their size;
  5. computer program (…) facilitating the downloading of the content posted on (…).pl website;
  6. a file search engine on (…).pl website;
  7. the function of transferring the obtained points between accounts, facilitating  the turnover of points between the users;
  8. the function of browsing contents of files with books and films without downloading them (the “play” function);
  9. the Partner Program which enabled the users to earn money by promoting the (…).pl website (eliminated in May 2012).

Each person whose property copyrights have been infringed as a result of using the above-mentioned functions, jointly referred to as the “File Exchange System”, may join the group which now consists of 12 members.

Each person whose claim might be pursued in these particular group proceedings may join the group by submitting a written declaration on joining the group in an non-extendible period of 1 month as of the publication of the announcement. The declaration shall be sent to the legal representative of the representative of the group –A.W., attorney-at-law, (…) Law Office with its registered office in W., ul. (…), 00-633 in W. Joining the group shall be inadmissible upon the lapse of the above–mentioned deadline.

(…)

 

Decision of the Regional Court in Warsaw 25th Civil Division of 18th August 2016

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

Presiding Judge: Tomasz Gal, Regional Court Judge

Judges: Anna Błażejczyk, Regional Court Judge; Monika Włodarczyk, Regional Court Judge

having examined on 18th August 2016 in Warsaw at the hearing in camera the case in a class action filed by R.D. – the group representative against the State Treasury – General Prosecutor, Regional Public Prosecutor in Gdańsk and District Public Prosecutor Gdańsk-Wrzeszcz in Gdańsk for payment,

hereby decides to:

Order an announcement on initiation of group proceedings in the present case in the Rzeczpospolita daily with the content wich follows:

’Group proceedings have been initiatied before the Regional Court in Warsaw 25th Civil Division, in the case to file ref. no. is XXV C 711/15, under the Act of 17 December 2009 on pursuing claims in group proceedings (Journal of Laws of  2010, No. 7, item 44, hereinafter referred to as: ‘Act on Pursuing Claims in Group Proceedings’) to the statement of claims filed by R. D. acting in the capacity of the group representative against the State Treasury – General Prosecutor, Regional Public Prosecutor in Gdańsk and District Public Prosecutor Gdańsk-Wrzeszcz in Gdańsk.

Under Article 417 (1) CC in conjunction with Article 415 CC, R. D. as a group representative motioned for adjudication of the specified cash amounts for each group member as a compensation for the damage to their assets caused by the unlawful nonfeasance the District Public Prosecutor Gdańsk-Wrzeszcz in Gdańsk, Regional Public Prosecutor in Gdańsk and General Prosecutor. The nonfeasance consist in the non-charging the members of the Managment Board of the company under the firm of (…) Sp. z o.o. with its registered office in G., in the period from 22th January 2010 to 17th August 2012. In the claimant’s opinion the nonfeasance resulted in conclusion by the group members of contracts with the abovementioned company and transfer of monies thereon which were thereafter lost following the company’s insolvency.

(…)

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 – R. D. (address for service: attorney T. K., (…) Sp. k., ul. (…), (…)-(…) W.).

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

(…)’.

Decision of the Regional Court in Warsaw 1st Civil Division of 12th August 2016

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The decision was reversed by the decision of the Court of Appeals in Warsaw 1st Civil Division of 15th December 2016, file ref. no. I ACz 2273/16.

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

Andrzej Kuryłek, Regional Court Judge

Joanna Piwowarun, Regional Court Judge

Jacek Bajak, Regional Court Judge

having examined on 12th August 2016 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 the establishment of the defendant’s liability,

decides to:

examine the case in group proceedings.

Decision of the Regional Court in Opole 1st Civil Division of 11th August 2016

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  1. The provision of Article 417 CC regulates the liability of the State Treasury and local government units for damage caused by an unlawful action or omission while exercising public authority. It constitutes a general basis for the liability of public authorities for their acts of authority in their sovereign capacity which does not apply only in situations where the legislator by way of another specific provision regulates consequences of certain acts of public authorities in their sovereign capacity.
  2. In the case of any damage caused by public authorities or local government units outside of the scope of sovereign capacity, they are not liable under Article 417 CC, but on the general civil law principles (Articles 416, 433-436 CC).
  3. The provisions of the Act on Crisis Management emergency containing the standards of behaviours expected of the public authority bodies are general in nature, especially as regards point 1 item 2 of Articles 17 and 19 of the Act.

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

The Chairman: Katarzyna Faff, Regional Court Judge (rapporteur)

The Judges: Beata Hetmańczyk, Regional Court Judge; Halina Jagieła, Regional Court Judge

having examined on 28 July 2016 in Opole at a hearing of the case filed by K.K (1) – a representative of a group of residents of (…) street and (…) street  and the township of K, which is composed of the following individuals: (…) against the Municipality of K. – the President of the City of K. and the Poviat of K – S.K. for ascertainment,

decided to

  1. award the costs of legal representation in the court of first and second instance in the amount of PLN 19,800 from K.K. (1) representative of the group of residents of (…) street and (…) street which group comprises parties named in the introduction to the Defendant Poviat K. S. K.,
  2. award the costs of legal representation in the court of first and second instance in the amount of PLN 19,800 from K.K. (1) representative of the group of residents of (…) street and (…) street which group comprises parties named in the introduction to the Defendant Commune of K. – the President of the City of K.,
  3. dismiss the case.

 

The above information was prepared based on public information provided by the President of the Regional Court in Opole.

The rulings of the District Court in Opole posted on the website were facilitated by the President of the District Court in Opole. The texts of the rulings were processed by the entity operating this website by adding theses, visual compilation and removing punctuation and literal errors. The rulings have been translated by the entity operating this website.

Decision of the Regional Court in Warsaw 1st Civil Division of 2nd August 2016

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

Rafał Wagner, Regional Court Judge

Andrzej Kuryłek, Regional Court Judge

Jacek Bajak, Regional Court Judge

having examined on 2nd August 2016 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 the establishment of the defendant’s liability

decides to:

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

’A class action filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. with its registered office in W. for the establishment [of the defendant’s liability] is pending before the Regional Court in Warsaw, 1st Civil Division, file ref. no. I C 1281/15.

In the course of the proceedings, acting as a group representative, on the grounds of Article 3851 (1) CC, Article 405 CC and Article 410 (1) and (2) CC, the Municipal Consumer Ombudsman in O. demands the establishment that the Bank (…) S.A. is liable towards the Group Members on the grounds of unjust enrichment arising out of the mortgage contracts concluded with the Group Members. containing, directly or indirectly, unlawful contractual provisions. (…)

Any party whose claim may be the subject of the class action (the claim of the same type as the abovementioned claims, based on the same or equal factual basis) may join the proceedings by filing the declaration on joining the group within the term of 3 months, which cannot be exceeded, as of the date of notification of that announcement. 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., attorney at law, K. W., attorney at law (address for service: Kancelaria “(…), T. i Wspólnicy” Sp. k., ul. (…), (…)-(…) W., e-mail: (…).pl).

(…)”

  1. order the Municipal Consumer Ombudsman’s counsel to pay, in favor of the State Treasury, the Regional Court in Warsaw, within 2 weeks, the amount of PLN 1,500.00 (one thousand five hundred PLN) as advance payment on the costs of the announcement on commencement of group proceedings.

Decision of the Regional Court in Warsaw 3rd Civil Division of 15th July 2016

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The Regional Court in Warsaw having examined the case of A.R against Związek (…) in W. for payment,

hereby decides:

  1. to publish the following announcement in (…) and in (…):

 

 “Announcement – start of the class action proceedings

The class action started by A.R. as the group representative against (…) Związek (…) z/s in W. for payment for purchase of the tickets to the mass event named (…) W.(…) S. (…) (….) (…), which took place on 18th April 2015 at the National S. in W. is currently pending before the Regional Court in Warsaw.

The Court informs about the possibility of declaring to join the group by people whose claims can be examined in this case. The declaration should be submitted in writing to the group representative A.R. (address for delivery: Law firm of legal counsel T.D., street (…). S.G. – R. (…) (…) – (…) W.) within 3 months from the issuance of this announcement.

The basic costs of the Claimant’s legal representation have been set in the amount of 20% (twenty percent) of the awarded amount of payment. The final judgment in the case binds also the members of the group.”

Judgement of the Regional Court in Warsaw – the Court of Competition and Consumer Protection of 21st June 2016

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The Regional Court in Warsaw – the Court of Competition and Consumer Protection with the following ruling bench:

Presiding Judge:            Jolanta de Heij-Kaplińska, Regional Court Judge

having examined on 24th May 2016 in Warsaw at the hearing in camera the case to the appeal of (…) Bank S.A. with its registered office in W. against the President of the Office for Competition and Consumer Protection for the ascertainment of acts violating collective consumer interests,

following the appeal of the President of the Office for Competition and Consumer Protection of 31st December 2013, no. (…),

hereby decides to:

  1. amend the contested decision in point III (three) by lowering the imposed penalty to the amount of PLN 5,000,000.00 (five million PLN);
  2. dismiss the appeal in the remaining part;
  3. award the amount of PLN 360.00 (three hundreds sixty PLN) from (…) Bank S.A. with its registered office in W. to the benefit of the President of the Office for Competition and Consumer Protection as the costs of professional legal representation.

Decision of the Regional Court in Piotrków Trybunalski 1st Civil Division of 14th June 2016

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  1. Evidence from testimony of the parties, provided for in Article 20 of the Act on Pursuing Claims in Group Proceedings applies only to group members, for they are the people, who are have the right of action arising from substantive law. A group representative is not questioned on the grounds that s/he has passive right of action.