Decision of the Regional Court in Warsaw 25th Civil Division of 26th June 2019

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

Presiding Judge:            Anna Pogorzelska, Regional Court Judge

having examined on 26th June 2019 in Warsaw at the hearing in camera the group action filed by the Poviat Consumer Ombudsman in Poviat K. against (…) S.A. with its registered office in W. for payment,

decides to:

  1. award (…) Spółka Akcyjna with its registered office in W. the amount of PLN 9,741.60 (nine thousand seven hundred forty one PLN 60/100), as reimbursement of the costs of the publication of the press announcement;
  2. order the cashier of the Regional Court in Warsaw to pay the abovementioned amount to the benefit of (…) Spółka Akcyjna with its registered office in W., temporarily from the State Treasury’s funds.

The Judgement of the Regional Court in Warsaw 21st Division of Labour of 24th June 2019

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  1. The responsibility of the State Treasury under art. 417 § 1 of the Civil Code is based on a tort of public authority – i.e. an unlawful act or omission in the exercise of public authority, the object of which may only be the violation of a specific standard ordering (or prohibiting) specific performance in a given situation. “Unlawfulness” must be understood strictly in accordance with the constitutional depiction of the sources of law (Articles 87-94 of the Polish Constitution). This concept is therefore narrower than the traditional depiction of unlawfulness under civil law which also includes, apart from the violation of legal provisions, the violation of moral and customary standards, defined as “principles of social coexistence” or “good customs”.
  1. The mere fact that the budget act provides for the average annual wage growth rate in the state budget sector in a certain amount does not impose an obligation to increase the remuneration of the employees of the state budget sector. Regulations providing for wage indexation do not create direct subjective rights but only provide guidelines for further action.

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

Presiding Judge:            Grzegorz Kochan, Regional Court Judge

Judges:                             Małgorzata Kosicka, Regional Court Judge

                                           Dorota Czyżewska, Regional Court Judge

having examined on 10th June 2019, at the hearing the case brought by R. L., the representative of the group which includes: (…) against the State Treasury – the Minister of Interior and Administration for compensation,

decides to:

  1. reject the statement of claims,
  2. order R. L. – the representative of the group – to pay the amount of PLN 10.800,00 (ten thousand eight hundred zlotys) to the benefit of the State Treasury – General Counsel to the Republic of Poland as a reimbursement of the costs of legal representation.

Decision of the Regional Court in Warsaw 25th Civil Division of 7th May 2019

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

Presiding Judge:            Anna Pogorzelska, Regional Court Judge

Judges:                            Krystyna Stawecka, Regional Court Judge

Anna Ogińska-Łągiewka, District Court Judge (delegated)

having examined on 7th May 2019 in Warsaw at the hearing in camera the group action filed by the Poviat Consumer Ombudsman in Poviat (…) against (…) S.A. with its registered office in W. for payment,

decides to:

  1. vary the point 2 of the decision of the Regional Court in Warsaw 25th Civil Division of 11th May 2018, issued in the case to file ref. no XXV C 461/18, regarding the ordering of the announcement on the commencement of the group proceedings, in such a way that determine the following wording of the announcement:

“A class action was initiated by the Poviat Consumer Ombudsman in Poviat (…) against (…) Spółka Akcyjna with its registered office in W. ((…) S.A.), conducted to file ref. no. XXV C 461/18 before the Regional Court in Warsaw 25th Civil Division, under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings (Journal of Laws of 2010, No. 7, item 44).

The Poviat Consumer Ombudsman in Poviat (…) as a group representative claimed a return of sums equal to value of financial benefits obtained by (…) S.A. for adjudication from the defendant (…) S.A. without legal basis at the expense of the group members, in the performance of invalid legal acts – invalid declarations made by group members to the defendant on the intention to take advantage of the reservation of insurance coverage for them as well as on the basis of invalid group life and endowment insurance contracts with an insurance capital fund (“main claim”).

Alternatively, in the event the abovementioned claim is dismissed, the group representative claims a return of amounts collected by the defendant without legal basis for adjudication from the defendant (…) S.A., on the grounds of abusive contractual clauses stipulating that in the event of resignation from insurance by a group member, (…) S.A. will only pay the so-called redemption value to their benefit, i.e. a part of the funds accumulated on the group member’s account. Moreover, the group representative claimed a return of amounts collected by the defendant for adjudication from (…) S.A. based on abusive contractual clauses without legal grounds as an administrative fee.

Each person who meets all following requirements:

(…)

may join the group by submitting a written declaration of the intent to join the group. Such a declaration should be made within a two-month term as of the date of publication hereof and submitted to the group representative – the Poviat Consumer Ombudsman in the Poviat (…), to the attorneys’ address: legal counsel A. L. or D. K., (…) s.c., ul. (…),(…)-(…) W.

Joining the group after above indicated time is inadmissible.

The declaration on joining the group should be deemed equivalent to granting consent for the Poviat Consumer Ombudsman in Poviat (…) to act as the group representative and for the legal fees payment rules indicated below.

(…)

The final judgement will be binding for all group members, i.e. persons, who will make a declaration on joining the group before the lapse of the abovementioned period, and will be included in the decision on composition of the group”.

Decision of the Regional Court in Katowice 1st Civil Division of 4th April 2019

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  1. The requirement of the same or similar factual basis means that the factual basis of the claim need not consist of identical circumstances but their significant similarity is sufficient.
  2. Admittedly, the Act on Pursuing Claims in Group Proceedings does not set forth the course and initiative of the establishment of a subgroup, but it is assumed that the decision to establish a subgroup is made by a group representative, who bases on assessment of the claims amount notified by the persons joining the group. Obtaining a group member’s consent to assign them to a particular subgroup (i.e. to standardization of their claims in the subgroup) is not necessary. However, a contract concluded by the group representative and group members may stipulate different rules of creating subgroups, including, in particular, the group representative’s obligation to obtain group members’ prior consent to standardize the amount of their claims and decide which subgroup they belong to.
  3. The court does not participate in the process of creating particular subgroups and cannot specify them, change their numerosity, or influence on their composition. This is because, the court ex officio does not interfere with either the quality or the amount of the claims pursued by the members of the group proceedings – in this respect the principle that the parties delimit the subject matter of the proceedings, set forth in Article 321 of Polish Code of Civil Procedure in connection with Article 24.1 of Act on Pursuing Claims in Group Proceedings, applies.
  4. Joining a specified subgroup should be expressly confirmed by a group member, so that a group representative and a court have no doubts which subgroup the group member joined and what kind of standardization is covered by their consent. The confirmation may be expressed in any form (also in form of an oral declaration addressed to a group representative) and need not to be submitted to the court.
  5. The view that spouses should be treated as a two-person subgroup, in which each spouse claims 50% of the value of the jointly pursued claim, is not correct, because the claim belonging to joint co-ownership is indivisible. However, it is correct that one spouse is a group member and acts in the common interest of both of them, with the consent of the second, pursuing a claim that both spouses are entitled to. Then, the spouses’ claim would be standardized with the claim of another group or subgroup member.

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

Presiding judge:             Jolanta Polko, Regional Court Judge

Judges:                            Agata Młynarczyk-Śmieja, Regional Court Judge

Katarzyna Zadora, District Court Judge (delegated; rapporteur)

having examined on 4th April 2019 in Katowice at the hearing in camera the group action filed by J. D. acting as a representative of the group consisting of 33 persons i.e. [data of the group members], who is a group member as well, against (…) Spółka z ograniczoną odpowiedzialnością spółka komandytowa in Ś., for payment,

decides to

examine the case in group proceedings.

Decision of the Regional Court in Warsaw 1st Civil Division of 14th January 2019

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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.

  1. 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.
  2. 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.
  3. 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.

Decision of the Regional Court in Warsaw 2nd Civil Division of 17th December 2018

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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].

Decision of the Regional Court in Warsaw 2nd Civil Division of 17th December 2018

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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:

  1. to refer the parties to mediation,
  2. to appoint a mediator in the person of R. M. from z Centrum (…) at (…),
  3. to set the mediation period for one month.

Decision of the Regional Court in Warsaw 2nd Civil Division of 17th December 2018

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  1. 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.

Decision of the Regional Court in Warsaw 1st Civil Division of 14th December 2018

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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:

  1. To discontinue the proceedings in relation to D.P. due to his death.
  2. To discontinue the proceedings in the remaining scope due to the conclusion of a settlement.
  3. 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.
  4. 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.

Judgment of the Regional Court in Wroclaw 12th Civil Division of 8th November 2018

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The judgment was partially changed by the judgment of the Court of Appeal in Wrocław of November 4, 2019, I ACa 239/19

  1. 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.
  2. 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).

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