The decision was amended by the decision of the Court of Appeals in Szczecin of 28th August 2012, file ref. no. I ACz 399/12.
- Being a consumer is not an inherent characteristic of an entity, but an indication of its role in business transactions. The source for the establishment of a special consumer protection regime is the natural inequality between consumers and entrepreneurs. The Civil Code contains only a general definition of the term of a “consumer”, it does not determine legal consequences related therewith, which, in turn, are expressed in the frames of regulations of concrete legal relationships in which not only a consumer appears, but as a rule also requirements pertaining to the other party to the consumer relationship. In principle, the protection in specific consumer statutes is rendered dependent on who the consumer enters into a legal relationship with. Most frequently it is an entrepreneur, but also defined in different manner in connection with the purposes of the legal acts describing such relations.
- A municipality may conduct business activity, hence it possesses the status of an entrepreneur within the meaning of the Act of 17 December 2009 on pursuing claims in group proceedings. This is due, among others, to the fact that the object of protection stipulated by the above given Act and the Act of 16 February 2007 on Competition and Consumer Protection is similar – the protection of consumers, i.e. entities having a weaker market position when compared with the position of a professional, entrepreneur.
- Most frequently, activity consisting in providing public services is performed with an intention of obtaining profit and it is not altered even by the fact that the profit is treated as secondary, since satisfying the needs of the self-government community will always remain the primary objective – such activity qualifies to be defined as an economic activity.
- From the point of view of standards of constitutional protection stemming from Article 76 of the Constitution of the Republic of Poland, it would be unfair to differentiate the position of natural persons satisfying their most fundamental necessities – the right to accommodation – according to the criteria pertaining to the legal status of the entity providing such a service, i.e. whether the entity conducting such an activity is a public law entity (municipality) or a private law entity.
- The claims are homogenous if they arise from one type of a legal relationship. The homogeneity of the claims is determined by an identity of the event from which the damage arose (e.g. a tort public authorities) and a similar type of the pursued claim.
The Regional Court in Opole 1st Civil Division with the following ruling bench:
Presiding Judge: Magdalena Domińczyk-Trzciańska, Regional Court Judge
Judges: Beata Hetmańczyk, Regional Court Judge;
Ryszard Kądziela, Regional Court Judge
having examined on 29th February 2012 in Opole the case filed by J. M. – the group representative against (…) sp. z o.o. in O. for payment,
decides:
to hear the case in group proceedings.
The decision was partially amended with the decision of the Court of Appeals in Warsaw of 6th June 2012, file ref. no. I ACz 868/12. The thesis questioned directly by the Court of Appeals in Warsaw is marked in italics.
- Proceedings on the establishment assume the omission of the examination of the circumstances closely regarding the individual group members, which are to be examined in the series of later proceedings conducted in a regular manner. For this reason the unification (standardization) of the amount of the claims is not required.
- The provisions of the Act (Polish Act on pursuing claims in group proceedings) do not stipulate the partial rejection of the statement of claims in group proceedings. The Court is not competent firstly to “choose” only those claims, from amongst the ones submitted, which are suitable for the said proceedings, and secondly – at the stage of examining the admissibility of the statement of claims – to eliminate the individual entities indicated as group members.
- The factual basis within the meaning of Article 1 section 1 of the Act is only the basic (initial) set of facts substantiating the claim. The discrepancies in terms of the facts substantiating only the amount of the claim are not an obstacle in assessing the group proceedings as admissible. Of course, it is the assessment of the Court as to which level of identicalness should be applied so that the given factual grounds would be similar to each other. In such a context, the aim which the group proceedings is to serve cannot be omitted. In this case, the group proceedings are aimed at increasing access to court and increasing the effectiveness of the legal protection by enabling the simultaneous ruling on the legitimacy of the claims of a larger group of persons. It is therefore to increase the effectiveness of the actions of the judiciary and facilitate potential members of this type of dispute in achieving the aim which is the comprehensive ruling.
- The unification (standardization) of the amount of the pecuniary claims is tightly linked with a different premise of admissibility of the group proceedings, i.e. the requirement of the existence of a relationship of a factual nature between the claims. The pecuniary amount pursued in group proceedings is to therefore result from the factual circumstances, common for everyone, in order to be able to establish the amount to which each of the group members is entitled on their basis. These common factual circumstances are not only the commonality of the factual basis but also those connected with the scope of the demand.
The Regional Court in Opole 1st Civil Division in the following ruling bench:
Presiding Judge: Katarzyna Sieheń, Regional Court Judge
Judges: Ryszard Kądziela, Regional Court Judge
Izabela Bogusz, Regional Court Judge
having examined on 26th September 2011 in Opole at the hearing the case filed by K. K. – group representative of group of residents of ul. (…) and ul. (…) in K. and the city of K. against the municipality of K. – the President of K. and the poviat of K. – the Starost of K. for ascertainment,
decides to:
examine the case in group proceedings.
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.
The decision was reversed in part (in the scope of point 2) by decision of the Court of Appeals in Krakow of 7th December 2011, file ref. no. I ACz 1235/11. The thesis’ questioned by the Court are marked in italics.
- In Article 1 section 1 (unlike in Article 2 section 3), the Act uses the term claim in the procedural meaning. Against the background of the Act, homogenous claims are claims arising from the same type of legal relationship. This does not mean sameness of specific standards constituting the legal basis of the specific claims (substantive law claims). The notion of homogeneity thus understood, litigation claims with their source in one legal relationship, even if various substantive law claims were to arise therefrom, should be recognised as homogenous.
- A factual basis of the claim should be understood as the basic aggregate of facts constituting the basis for the arising of a contentious legal relationship and a specific claim. The scope of the factual basis does not extend to factual circumstances impacting the value, objective scope, or maturity of claims; these elements may, but do not have to be covered by the factual basis of the action.
- The requirement of the same or similar (equal) factual basis does not mean the requirement for all the elements of the factual status to be the same or similar (equal) in the case of each claim. It is enough if there is an element common in the scope of all factual circumstances constituting the basis of the group members’ claims.
- The defendants’ behaviours in a varying degree contributed to the bursting of the flood blank in Koćmierzów, and thus to the effect – damage to the group members’ assets, but they jointly constitute a single tort perpetrated by public authorities. The fact that not all defendants participated in the tort at specific stages thereof does not eliminate their joint and several liability for the damage.
- The defendants’ tort is of complex nature, it consists of an aggregate of interrelated actions and omissions, distributed in time, which led to inflicting damage onto multiple entities. A statement that to adopt the precondition of commonality of the factual basis of the claims is necessary for all group members to derive their claims from the same action or the same omission or the same action and omission of the defendants and that each of the group members should seek claims for compensation of damage of the same type (only damnum emergens or lucrum cessans) does not deserve to be approved. As all claims of the group members’ arise from such a complex tort, then it should be assumed that they are based on the same factual basis and the group members share a bond arising from the unity of the event which resulted in the damage.
- The criterion for separating cases in the frames of categories of claims arising from tort is the legal basis of claims. A group proceedings is admissible in the cases regarding claims pursued on the grounds of provisions of the Civil Code on tort, regardless of the type of events which the Act associates compensatory obligations with and regardless of the principle of liability.
- Common circumstances of the case considered at the standardisation of claim values should be referred to the precondition of commonality of the factual basis (Article 1 section 1 of the Act). However, it is a notion of a meaning narrower than “the same or similar (equal) factual basis”.
- The estimates of the costs of the proceedings are the necessary condition of the motion for security deposit, since the court in determining deposit value should bear in mind a probable total of the costs to be incurred by the defendant.
- The aim of obtaining the verdict establishing the defendant’s liability is to obtain a precedent for possible individual actions of the group members for payment, or a basis for the conclusion of a settlement between the group members and the defendant. The claim included in the statement of claims understood in such a way is of a pecuniary nature, despite the fact that it does not constitute a claim for payment. It is not necessary to indicate the amount of the claim of each of the group members in the statement of claims, and Article 2 section 3 of the Act (Polish Act on pursuing claims in group proceedings) constitutes an exception to the rule of indicating and standardising the amount of the claims of the group members resulting from Article 2 section 1 and Article 6 section 1 point 3 of the Act.
- It may be assumed that in compliance with the rule of the freedom of contracts (Article 3531 of the Civil Code), group members may entrust the function of the group representative to the consumer ombudsman from any city or district in the country. The consumer ombudsman is authorised, but not obligated to be the group representative and if he expresses consent to accept this function, then the issue of the territorial scope of his operation is without meaning for the further proceedings.
- The procedural relations between the group’ representative and the group members were regulated on principle of subrogation, which means that the group representative conducting the proceedings in his own name, but on behalf of all of the group members. The group members are not parties to the group proceedings.
- The premise of the homogeneity of the claims should be understood in such a manner that the requests (demands) resulting from them are common for all of the group members. The statement of claims must therefore include the request (demand) to grant the same form of legal protection for all of the group members.
- The very factual basis of the statement of claims, however, constitutes the basic (initial) aggregate of facts substantiating the claim. The same factual basis of the statement of claims takes place when obtaining legal protection is connected with an identical situation or event. Whereas it is possible to speak of equal factual basis in a situation in which the claims are derived from merely similar situations and events.
- The notion of cases regarding consumer protection also includes the establishment of contractual liability, connected with the issue of the non-performance or the improper performance of the obligation in the meaning of Article 471 of the Civil Code. In this case, we are dealing with the improper performance of obligations resulting from legal actions in the form of consumer contracts.
The judgements of the Regional Court in Lodz published on the website were downloaded from the Portal of Judgements of Common Courts (https://orzeczenia.ms.gov.pl/), and then processed by the entity operating this website by adding theses, deleting data of the group members, visual compilation and removing punctuation and literal errors. The judgements have been translated by the entity operating this website.
- Regardless of the possibility to seek redress of the damage, which stems from the provisions, which Article 24 section 2 of the Civil Code makes a reference to, the means of personal rights protection may be divided into proprietary and non-proprietary, which does not change the fact that they will be regarded by claims which should still be recognized as those being aimed at the protection of personal rights. The claim on pecuniary satisfaction is therefore qualified as one of the proprietary means of protection of personal rights. Since in the statement of claims itself it was ascertained that the incurred detriment (harm) is to be the source of the claims, then there can be no doubt that these claims will regard the protection of personal rights, and therefore their pursuit in group proceedings is excluded.
The Regional Court in Tarnów, 1st Civil Division in the following ruling bench:
Presiding Judge: Marek Syrek, Regional Court Judge
having examined on 21st of January 2011 in Tarnów, at the hearing in camera, the case filed by the Poviat T. Consumer Ombudsman acting on behalf of (…) A. S.A. in W. for the payment of performance
orders to:
return the complaint.
