The Regional Court in Wroclaw 1st Civil Division with the following ruling bench:
Presiding Judge: Adam Maciński, Regional Court Judge
Judges: Sławomir Urbaniak, Regional Court Judge;
Aneta Fiałkowska-Sobczyk, Regional Court Judge
having examined on 24th October 2018 in Wroclaw at the hearing in camera the case filed by D. D. acting as the group representative against (…) Bank S. A. with its registered office in W. for establishment,
decides:
to establish that the group in the case being heard is composed of: [data of 55 members of the group, including the group representative].
The judgements of the Regional Court in Wroclaw published on the website were facilitated by the President of the Regional Court in Wroclaw in the letter of 27th August 2019. The texts of the judgements were processed by the entity operating this website by adding theses, deleting data of group members, visual compilation and removing punctuation and literal errors. The rulings have been translated by the entity operating this website.
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Points 1., 2. and 3. of the operative part of the judgement were set aside by the judgement of the Court of Appeals in Lodz 1st Civil Division of 9th March, I ACa 80.19.
- The prerequisite of legal interest from Article 189 CCP should be applied to members of the group and not to a representative of the group.
- A legal interest within the meaning of Article 189 CCP does not occur if the claimant can obtain the protection of their rights by other legal means – e.g. an action for an award. The possibility to bring an action for a performance precludes the existence of a legal interest in bringing an action for establishment on the claimant’s part.
- The fact of introducing an amendment to Article 69 of the Act of 29 August 1997 the Banking Law (adding Article 69 (2) (4a) and Article 69 (3)) does not mean that before the date of 26 August 2011 it was not possible to conclude agreements on a credit denominated, indexed or valorised to a foreign currency.
- The change in the amount of the borrower’s liability in the valorised credit agreement is the result of a legal valorisation mechanism.
- The allegation indicating that the entire foreign exchange risk burdens the borrowers is ungrounded. Depending on the economic situation on the market, the negative consequences of the currency conversion are borne by both the clients and the bank.
- Using the valorisation mechanism is without prejudice to the nature of the credit agreement, banking law, or any other generally applicable national or international law. Under the principle of freedom of contract (Article 3531 CC) the use of such a mechanism is permitted.
- The parties may stipulate in the agreement that the amount of the monetary performance will be determined by a value measure other than money. What is at issue here is a measure other than that of the money that the obligation involves. It may, therefore, be a different currency.
- The assessment of the compatibility of agreements with the principles of social coexistence should not be made in the light of the individual characteristics of individual consumers, since the claimant, claiming that the agreements covered by the action are invalid, seeks to examine their compatibility with the principles of social coexistence in a normative manner. What is to be examined is whether the construction of the contract, expressed on the basis of a single contract template and the resulting mechanism of valorisation, are compatible with the principles of social coexistence, and not whether the borrowers are educated people with knowledge of the financial market or incompetent people who are in a difficult situation at the date of conclusion of the credit agreement.
- The conflict with the principles of social coexistence would arise if the defendant repudiatedly introduced into the market factors which would increase the exchange rate of the foreign currency in order to achieve its own benefits outside of the economic market mechanisms. The increase in the Swiss franc exchange rate over time is the result of economic market rules, which are not influenced by any of the parties to the agreement.
On 19th October 2018
File ref. no. XXVI GC 619/17
ORDER
- Kindly order the publication of the ‘Announcement on commencement of group proceedings’ with the following content once in the daily paper (…) in accordance with the offer sent on 3rd October 2018 (attach the e-mail) and its point 2 – advertisement pages – an announcement for the price of PLN (…)net (15 modules – font 9 points). Kindly send us a copy of the daily paper in which the announcement was published.
Announcement on the commencement of group proceedings
Before the Regional Court in Warsaw 26th Commercial Division under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, a class action for payment was initiated by the group representative – T. G. acting on his own and on behalf of the group members against (…) sp. z o.o. with its registered office in W., K. J. and P. J. (defendants), file ref. no. XXVI GC 619/17.
Pursuant to Article 2.3 of Act on Pursuing Claims in Group Proceedings, T. G. as a group representative claimed for the establishment that the defendants are jointly liable for the damage incurred by the Group Members (former shareholders of the company (…) S.A. covered by a squeeze out procedure related to 100,069,611 shares which represent (…) share capital of the company (…) S.A., implemented on 31st May 2016 as a result of the company’s notice). The damage consists of receiving, in the squeeze out procedure, a share price which was not an equivalent of its fair value, in particular by spreading false information on its assets value and presenting this value on the lower rate than its market value by the Management Board of the company (…) S.A. in the consolidated financial statements of capital group (…) S.A.. As a consequence, the squeeze out price PLN (…)per share was wrongly assumed in the declaration of the Management Board of (…) S.A. on 16th March 2016 as a fair value.
Each person, who was covered by the squeeze out procedure related to 100,069,611 shares representing (…) share capital of the company (…) S.A., implemented on 31st May 2016 as a result of the company’s notice, i.e. suffered damage consists of receiving a share price which was not an equivalent of its fair value in the squeeze out procedure, may join the group in the present group proceedings by submitting a declaration on joining the group.
The declaration should be submitted to the group representative – T. G., via the (…)law office sp. k. within a non-extendable three-month term as of the date of notification hereof.
After the lapse of the abovementioned term, joining the group will be inadmissible.
(…)
- After receiving an invoice, pay the price for the announcement in the ‘RP’ daily paper from the advance paid by the plaintiff.
- Subsequently send an obligation to indicate at what stage the proceedings in the case of file ref. no. PO II Ds. 46.2017 are currently in and to send copies of all issued decisions together with reasonings, records of examination of witnesses or suspects, and in the case of an expert opinion, also a copy thereof, to the District Prosecutor’s Office (as in the order on page 3,686) on the correct address: District Prosecutor’s Office in W. – (…) ul. (…) (…) W.
- calendar 30 days.
Karolina Toczyńska, Regional Court Judge
- A person making a declaration on joining a group is intending to produce not so much a substantive legal effect as a specific procedural effect, however, this effect occurs only at the moment when the list of persons who have joined the group is presented to the court (Article 12(2) of the Act on Pursuing Claims in Group Proceedings), and provided that the representative decides to include the person making the declaration on that list. Therefore, even if the declaration is in a certain sense a substantive law statement, then absolute application thereto of the provisions on making a declaration of will does not seem to be appropriate.
- The content of the decision on the announcement on commencement of the group proceedings does not determine or limit the factual basis which the claims of individual group members are based on. It is for the court to decide which claims are to be heard in group proceedings, in its decision to hear the case in group proceedings. The announcement is therefore of informative nature.
- Missing declarations on joining the group may be supplemented upon the representative’s request.
Decision reversed in part and amended in part by decision of the Court of Appeals in Warsaw of 11th April 2019, I ACz 182/19.
- The Act on Pursuing Claims in Group Proceedings does not contain regulations concerning entities wishing to join a group in the period between the filing of a statement of claims and the publication of a press announcement on the commencement of group proceedings. There are no grounds to claim that it is not possible to submit a declaration on joining the group in the period indicated, as the provisions of the Act do not explicitly prohibit this, but also explicitly do not permit the situation in question. However, it should be pointed out that those individuals must comply with the prerequisites laid down in the decision ordering the announcement and the announcement in the press, since a declaration by entities wishing to join a group must, de facto, be made after the announcement has been made.
The Regional Court in Warsaw 25th Civil Division with the following ruling bench:
Presiding Judge: Tomasz Gal Regional Court Judge
At the hearing in camera on 6th July 2018 in Warsaw in the case proceeded in class action proceedings started by the group representative Consumer Ombudsman in County (…) against (…) joint stock company with registered office in W. for payment regarding the Defendant’s (…) joint stock company with registered office in W. complaint against the decision of 11th May 2018.
decided:
- to reject the Defendant’s (…) joint stock company with registered office in W. complaint against the decision of 11th May 2018.
- At the preliminary stage of the case, merely the circumstances which justify (or not) the examination of the case in the group proceedings, are significant for the court. The verification of the facts indicated in the lawsuit, as facts justifying acceptance of the claim, will always be the object of the evidentiary hearings at the stage of the substantive examination of the case.
- For the purposes of the preliminary assessment of the admissibility of the group proceedings, the facts provided by the plaintiff are binding for the court. It is assumed that the assessment of the nature of the case takes place within the framework of the claim indicated by the plaintiff and facts provided by it. These circumstances concretize the legal relationship between the parties, shape the nature of the case and thus decide whether the case is a civil case or not.
The Regional Court in Warsaw 26th Commercial Division with the following ruling bench:
Presiding Judge: Karolina Toczyńska, Regional Court Judge (rapporteur)
Judges: Agnieszka Owczarewicz, Regional Court Judge
Anna Hrycaj, Regional Court Judge
having examined on 14th May 2018 in Warsaw at the hearing in camera the group action filed by T. G. acting as a group representative against (…) spółka z ograniczoną odpowiedzialnością in W., K. A., P. J. (1) for payment,
decides to
examine the case in group proceedings.
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 delegated District Court Judge
Having examined on 11th May 2018 in Warsaw, at the hearing in camera the case filed in class action proceedings by the group representative Consumer Ombudsman in County (…) against (…) joint stock company with registered office in W. for payment regarding the defendant’s objection against the value of the dispute
decided:
- under Article 25 § 1 and § 2 Polish Code of Civil Procedure to check the value of the dispute and establish it in the amount of PLN 2,420,027.08 two millions four hundred twenty thousand seven 8/100).
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 11th May 2018 in Warsaw the case filed in group proceedings by the group representative District Consumer Ombudsman in Poviat (…) against (…) S.A. with its registered office in W. for payment,
decides to:
- order the information about the commencement of the group proceedings to be published;
- to publish the announcement on the commencement of the group proceedings with the following content:
Poviat under the Act of 17 December 2009 on Pursuing Claims in Group Proceedings, group proceedings against (…) joint stock company in W. were initiated before the Regional Court in Warsaw 25th Civil Division to case file no. XXV C 461/18 by the District Consumer Ombudsman in the Poviat of (…).
The District Consumer Ombudsman in the Poviat of (…) acting as the group representative motioned for awarding from the defendant (…) joint stock company the return of amounts equalling the benefit obtained by defendant (…) joint stock company without a legal basis through the performance of invalid acts in law – invalid declarations of intent made by the group members to the defendant. The group members declared their willingness to make use of the provision stipulating insurance protection care and invalid life insurance and endowment contracts with insurance capital funds (‘main claim’) to their benefit. At the same time, should the statements of claim be dismissed on the above indicated grounds, the group representative initiated a legal action for ordering defendant (…) joint stock company to reimburse the group members for the amounts collected by defendant (…) joint stock company from them without legal grounds under abusive clauses. Such abusive clauses indicated that in the event of resignation from the insurance (…) joint stock company would pay only the redemption value, i.e. the part of the amount on the account. The group representative also initiated a legal action for the return the payments made by the group members without legal grounds as the administrative fee under abusive clauses by (…) Życie S.A.
Each party whose claim may be included within these group proceedings may join the case by submitting a written declaration of the intent to join the group. Such a declaration should be made within the 2 months deadline as of the date of publication of this announcement and submitted to the group representative – Consumer Ombudsman in the Poviat of (…).
Joining the group after above indicated time is inadmissible.
The declaration on joining the group should be deemed equivalent to granting the consent for the Consumer Ombudsman in Poviat (…) to act as a group representative and to the legal fees payment rules indicated below.
(…) [legal fees calculation details]
- The announcement indicated in point 1 and 2 shall be published in the Rzeczpospolita daily in the Announcements section – size 81 mm x 204.8 mm.
- Introducing a regulation to group proceedings regarding a deposit to secure the costs of the proceedings should guarantee the defendant a return of the incurred costs by the claimant. Such a regulation guarantees the protection of the defendant’s interest against unfounded statements of claim. Regardless of the optional function of the deposit to secure the costs of the proceedings, this institution constitutes a significant limitation of the claimant’s freedom to start group proceedings. Therefore, the claimant’s obligation to make a deposit to secure the costs of the proceedings should be deemed a factor limiting the possibility of the recourse to pursuing claims in group proceedings.
- It is the defendant’s duty to indicate and demonstrate the facts which substantiate the need to impose an obligation to make a deposit on the claimant.
- A motion for the deposit should make plausible that the already initiated legal action is: firstly, obviously unfounded and it is hardly possible that the statement of claims will be accepted i.e. it should be deemed as ‘litigious proceedings’ and secondly, that the lack of the deposit to secure the statement of claim makes the enforcement of the costs of the proceedings from the opposite party difficult or impossible.
- The fact that the consumer ombudsman’s acts as a claimant does not preclude the possibility to enforce the costs of the proceedings by the opposite party.
- If the court dismisses a claim and awards the costs of the proceedings from the consumer ombudsman to the defendant, such costs should be deemed as the costs of the legal activity of the consumer ombudsman, including in the budget of poviatthe poviat. Such costs cannot be deemed a contractual obligation incurred by the consumer ombudsman which he would not be poviatliable for without the contract being countersigned by the poviat’s treasurer.
The Regional Court in Warsaw 25th Civil Division in the following ruling bench:
Presiding Judge: Anna Pogorzelska, Regional Court Judge
Judges: Krystyna Stawecka, Regional Court Judge,
Anna Ogińska-Łągiewka, delegated District Court Judge
having examined on 11th May 2018 in Warsaw the case in group proceedings filed by the group representative Consumer Ombudsman in Poviat (…) against (…) S.A. with its registered office in W. for payment regarding the motion to obligate the claimant to make a deposit to secure the costs of the proceedings
hereby decides:
to dismiss the motion.
