Resolution of the Supreme Court of 27th February 2020

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The Supreme Court with the following ruling bench:

Presiding Judge:            Roman Trzaskowski, Supreme Court Judge

Judges:                            Monika Koba, Supreme Court Judges (rapporteur)

Krzysztof Pietrzykowski, Supreme Court Judge

in the case filed by Z. R. acting as a representative of the group consisting of: (…) against the State Treasury – the State Water Enterprise ‘Wody Polskie’ in Warsaw [Państwowe Gospodarstwo Wodne Wody Polskie w Warszawie] and the (…) Voivodeship for the establishment of the defendants’ liability,

having examined at the hearing at the Civil Chamber on 27th February 2020 the legal issue presented by the Court of Appeals in (…) in the decision of 28th June 2019, file ref. no. I ACa (…),

“1. Whether a regional self-government community – a voivodeship is liable for damages caused by an unlawful act (omission) of the voivodeship marshal committed while exercising public authority within the scope of the tasks delegated by the governmental administration, stipulated in Article 75.1 of Act of 18 July 2001 Water Law (i.e. previous water law with wording published in the Journal of Laws from 2001, No 115, item 1229, with amendments published in the Journal of Laws from 2004, No 116, item 1206)?

2. In the event of positive answer to the question in point 1:

Whether the State Water Enterprise ‘Wody Polskie’ in Warsaw [Państwowe Gospodarstwo Wodne Wody Polskie w Warszawie] joined the proceedings under Article 534.5 subpoint 3 of Act of 20 July 2017 Water Law (i.e. the new Water Law, Journal of Laws from 2017, item 1566) by operation of law as of 1st January 2018, replacing the voivodeship which participating in the case so far?”

passes a resolution:

1. The voivodeship is liable for the damages caused by voivodeship marshal’s unlawful acts or omissions committed while exercising public authority within the scope of the tasks delegated by the governmental administration, set forth in Article 75.1 of Act of 18 July 2001 Water Law (consolidated text: Journal of Laws from 2017, item 1121 with amendments);

2. In the civil proceedings for payment for unlawful acts or omissions committed while exercising public authority, set forth in Article 75.1 of Act of 18 July 2001 Water Law (consolidated text: Journal of Laws from 2017, item 1121 with amendments), initiated before the date of the entry into force of the Act of 20 July 2017 – Water Law (Journal of Laws from 2018, item 2268, with amendments), the State Water Enterprise ‘Wody Polskie’ in Warsaw [Państwowe Gospodarstwo Wodne Wody Polskie w Warszawie] is not replacing the voivodeship under Article 534.5 subpoint 3 thereof.

Decision of the Supreme Court of 19th December 2019

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  1. Article 391 para 2 sentence 1 of Code of Civil Procedure, under which in the case of the withdrawal of the appeal, the court of the second instance shall terminate appellate proceedings and award the costs in the same amount as in the case of the withdrawal of a lawsuit, applies accordingly in the cassation proceedings.

The Supreme Court with the following ruling bench: Tomasz Szanciło, Supreme Court Judge

in the case filed by Z. P. – a group representative acting for the benefit of (…) against the State Treasury represented by the General Inspector of Building Control in C. and the Mayor of City C. for establishment, at the hearing in camera at the Civil Chamber of 19th December 2019,

following the defendant’s cassation complaint against the judgement of the Court of Appeals in (…) of 23rd January 2019, file ref. no V Aca (…),

decides to:

discontinue the proceedings.

Decision of Supreme Court of 30th October 2019

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  1. Interpretation of the concept ‘while exercising the act entrusted to him’, within the meaning of Article 429 of the Polish Civil Code, is determined by the facts of the specific case, and in particular by whether, from the injured party’s point of view taking their due diligence into account, the kind of act (which is related to the damage) provides objective grounds for the injured party’s acceptance of the existence of a functional relation between this act and activities that actually fell within the scope of the entrusted activities.
  2. The provision of Article 429 of the Polish Civil Code stipulates the liability of a person who entrusts another on the basis of the fault. The liability is autonomous and independent of the direct perpetrator’s liability.

 

The Supreme Court with the following ruling bench:

Władysław Pawlak, Supreme Court Judge

in the case filed by B. B. – a group representative against (…) Bank Spółka Akcyjna with its registered office in W. for payment at the hearing in camera at the Civil Chamber on 30th October 2019,

following the defendant’s cassation complaint against the judgement of the Court of Appeals in (…) of 26th September 2018, file ref. no V Aca (…),

decides to

  1. refuse to hear the cassation complaint;
  2. award the amount of PLN 12,500.00 (twelve thousand five hundred) from the defendant to the benefit of the plaintiff – group representative B. B. as the cost of the cassation proceedings.

Judgment of the Supreme Court of 31st January 2019

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  1. One must find that in a case for monetary claims resulting from a tort, an action from Article 2 (3) of the Act on Pursuing Claims in Group Proceedings is admissible without the need to determine that damage has been caused to each member of the group if the circumstances of the damage are varied in a degree rendering their assessment in a class action inexpedient. The likelihood that such injury actually took place is entirely sufficient. Moreover, there is no reason for a court in group proceedings to rule firmly that damage has occurred in the case of each member of the group if it is possible and expedient to do so in the context of group proceedings. The court may, however, omit this with the result that the examination of whether and what damage was caused to individual members of the group will take place in individual proceedings if they are initiated. This also means, which needs to be emphasised, that the court adjudicating in the proceedings [initiated] by a statement of claims of a group member, despite being bound by the prejudication obtained under Article 2 (3) of the Act on Pursuing Claims in Group Proceedings (Article 365 CCP in conjunction with Article 21 (3) and Article 24 (1) of the Act on Pursuing Claims in Group Proceedings), may dismiss the action if it ultimately turns out that the damage suitable to be repaired did not occur.
  2. Within that construction, it is the court conducting group proceedings and the court conducting the subsequent individual proceedings which must assess the circumstances justifying the award of a specific sum of money to a particular person. The limits of the jurisdiction of both courts should be set in a flexible manner which would allow for the widest possible opening of group proceedings, the use of its potential, and obtaining the economic benefits associated with the joint assessment of identical factual and legal issues common to all claims pursued.
  3. The establishment of the defendant’s liability while simultaneously leaving the decision on the existence and amount of damage to the court conducting individual proceedings should be treated as a statement of the entire demand of the statement of claims in group proceedings (full judgment).

Judgment of the Supreme Court of 17 April 2018

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  1. The prerequisite of homogeneity should be understood functionally. It becomes understandable when one understands that the type of claim and the way it is calculated are two different things. The homogeneity of the claim refers only to the first factor mentioned. The same nature of the claim is authorized by the vertical view. The idea is for claimants bundled together in the same group proceeding to make the same claim. The duality of the mechanism used to calculate it (common to all participants) does not contradict the homogeneity of the claim.

Decision of the Supreme Court of 18th September 2015

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  1. The entities concerned may express a will to participate in a group proceedings in two ways. Firstly, they may become part of the so-called initiating group, on whose behalf the group representative files a statement of claims including a motion for examining the case in group proceedings. Secondly, they may join the group proceedings already after issuing by the court a decision on examining the case in group proceedings and publishing by the court an announcement on commencement of the group proceedings.
  2. The declarations of group members on joining the group, mentioned in Article 6.2 of the Act on Pursuing Claims in Group Proceedings, are not the basis, autonomous and independent of the statement of claims, for the establishment of the object and admissibility of the group proceedings by the court.
  3. Any substantive and procedural law effects of initiating a group proceedings arise on the date on which the statement of claims along with attachments is filed, hence a date on the group members’ declaration on joining the group and consenting for a specific person to act in the capacity of the group representative subsequently attached to the statement of claims is of no significance.
  4. From the location of Article 12 of the Act on Pursuing Claims in Group Proceedings it follows that the declaration on joining the group specified in this provision is filed by entities who did not participate in the preparation of the statement of claims, but having acquired the knowledge from an announcement or other sources want to join the group and obtain a legal protection of their claim in the frames of group proceedings.
  5. A declaration on joining the group filed after issuing by the court the decision on examining the case in group proceedings and publishing by the court an announcement on commencement of the group proceedings constitutes expression, autonomous and independent of the statement of claims, of a specific individual’s will to participate in group proceedings, hence it must include the components allowing [the court] to assess whether the claim of a candidate for participation in the group may be examined in these proceedings. This declaration is filed not to the court but to the claimant (group representative).
  6. The procedural law effects of a declaration on joining the group, mentioned in Article 12 of the Act on Pursuing Claims in Group Proceedings occur therefore at a different moment than the law effects of filing a statement of claims. At the moment the claimant (group representative) submits to the court the declarations on joining the group and the list of entities who have joined the group, a status of a case pending between these entities and the defendant concerning the claim being the subject of this group proceedings arises and, furthermore, it is at this moment that the course of limitation of claims of entities joining the group is interrupted (Article 123 par. 1 point 1 of the CCP).
  7. Declarations attached to the statement of claims originating from the initiating group do not have to contain all the obligatory elements of the statement of claims and the declaration on the existence of circumstances substantiating the examining of a demand raised in group proceedings. The said declarations do not exist autonomously and do not shape the object of the group proceedings, but are aimed at identifying members of the initiating group by demonstrating therein a will to participate in a group represented by an appointed person who files the statement of claims.

Resolution of the Supreme Court of 16th September 2015

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  1. In class action for establishment of the defendant’s liability on the basis of Article 2.3 of the Act on Pursuing Claims in Group Proceedings, the claimant must also formulate a pecuniary claim, the pursuit of which the establishment of the defendant’s liability is to serve in later individual proceedings and the establishment of this liability in group proceedings is to take place in reference to a pecuniary claim, the performance of which is sought from the defendant by members of the group. This is because establishing the defendant’s liability on the basis of Article 2.3 of the indicated Act may not occur in separation from the legal relationship being the source of this liability or from the claim stemming therefrom and the performance of which is sought by members of the group and which, under Article 1.1 of the Act on Pursuing Claims in Group Proceedings, must be of the same type and based on the same or similar factual basis. Elements common for group members are of decisive significance for the admissibility of group proceedings and the court’s cognition. This is because, in these proceedings, the court is to establish circumstances common for all group members which constitute a precondition for the pursued claim.
  2. In a class action for the establishment of the defendant’s liability, court proceedings should be limited to establishing a certain conglomerate of factual and legal circumstances common for all members of the group and constituting a precondition of individual pecuniary claims addressed against the defendant. Therefore, the Court should establish only those preconditions of this liability which are actually common for all members of the group and the assessment of which in these proceedings does not collide with the nature thereof. It is necessary to approach in a similar way to the defendant’s allegations related to the principle of the defendant’s liability. The above mentioned allegations should be examined by the court in group proceedings limited to establishing the liability of the defendant, if they are not of an individual nature, but concerning in an equal manner all members of the group and are based on identical circumstances, also pertaining to all members of the group to the same extent. This also applies to the charge of statute of limitation of a pecuniary claim, the pursuit of which in later individual proceedings the establishment of defendant’s liability is to serve.
  3. In group proceedings for establishing the defendant’s liability, the court therefore examines a charge of statute of limitation of a pecuniary claim if it pertains to all members of the group and is based on identical circumstances pertaining to all of them. This allegation is then examined by the court as another precondition of the defendant’s liability common for all members of the group. It is compliant with the goal and function of group proceedings since allowing the charge of statute of limitation leads to an exclusion of the defendant’s liability and dismissal of the claim already at this stage of the proceedings, whereas disallowing this allegation and establishing the defendant’s liability excludes the possibility of invoking the limitation in potential individual proceedings.

Decision of the Supreme Court of 21st May 2015

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The Supreme Court in the following ruling bench:

Hubert Wrzeszcz, Supreme Court Judge

in the action initiated by (…) against (…) for the protection of copyrights and related rights in group proceedings, at a closed door hearing at the Civil Chamber on 21st May 2015 as a result of the claimant’s cassation complaint against the decision of the Court of Appeals in Warsaw dated 27th November 2013, file ref. no. VI ACz 3170/13

accepts the cassation complaint for examination.

Judgement of the Supreme Court Civil Chamber of 14th May 2015

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  1. The group proceedings in which the demand for ‘establishing the claimant’s liability’ was formulated, has the nature of specific autonomous proceedings which may not be identified in construction terms with the proceedings concluded by issuing a preliminary judgement in the meaning of Article 318 CCP, as well as with proceedings for establishing a right or a legal relationship under Article 189 CCP. The autonomous nature of these proceedings in first order is determined by a separate legal regime of group proceedings, as well as its goal and legal functions, since it is to conclude in a ruling constituting a unique precedent for solving future disputes with the participation of a group of individuals in adequate individual proceedings or as a result of concluding appropriate settlements between claimants and the defendant.
  2. The concept of an autonomous nature of group proceedings was adopted in the decision of the Supreme Court of 28th January 2015, I CSK 533/14, which among others, stated that the object of these proceedings, aimed at establishing the defendant’s liability are only the circumstances common for all members of the group, but not individual circumstances concerning individual members, which will be examined only later in individual proceedings. The ruling issued in these proceedings pertains to all members of the group (Article 21.3 of the Act on Pursuing Claims in Group Proceedings) and aims to establish the defendant’s liability in connection with the arising of a specific act of law, prejudging the existence of a specific legal title for such a liability (e.g. a tort, non-performance or improper performance of an agreement, unjust enrichment, et al.). However, the issue is not the establishment of all necessary preconditions for the arising of a liability as in the case of examination proceedings, ending in a preliminary judgement, e.g. prejudging the existence of all preconditions of tortious or contractual compensatory liability. Hence, it is possible to state that establishing the defendant’s liability in the meaning of Article 2.3 of the Act on Pursuing Claims in Group Proceedings signifies a substantial limitation of the scope of the cognition in comparison with an examination of the existence of all necessary preconditions of the defendant’s liability in an individual court proceedings. In other words, establishing contractual liability in the meaning of the mentioned provision signifies a necessity to establish by the court at least the state of non-performance or improper performance of an obligation in connection with the violation by the defendant specific obligation resulting from the contract relationship binding the defendant to the group’s members.
  3. The object of the proceedings aimed at establishing the defendant’s liability is only the circumstances common for all the group members, but not individual circumstances concerning individual members, which will be examined only in later individual proceedings. A ruling issued in these proceedings pertains to all members of the group (Article 21.3 of the Act on Pursuing Claims in Group Proceedings) and aims at establishing the defendant’s liability in connection with the arising of a specific act in law, prejudging the existence of a specific legal title of such liability.
  4. De lege lata, there is no express ban of joining a class action in the meaning of Article 1 of the Act on Pursuing Claims in Group Proceedings with proceedings concerning an incidental control of the content of a standard terms, as well as obstacles of a construction and procedural nature in such a combination and there are no contraindications to state an abusive nature of a specific, standard contractual clause and at the same time to establish contractual liability of the template’s author (Article 471 CC). Furthermore, the discussed combination may lead to strengthening consumer protection if the general preconditions of the admissibility of the group proceedings, provided for in Article 1.2 and Article 2 of the Act on Pursuing Claims in Group Proceedings appear.
  5. It is necessary to state that assuming an abusive nature of a given provision of an agreement causes the elimination it from the content of the obligation relationship binding the parties, and in no way automatically implies the contractual liability of the template’s author for ‘the defective provisions in the template’.

Decision of the Supreme Court Civil Chamber of 28 January 2015

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  1. The admissibility of group proceedings, on the grounds of Article 1.2, provided the action is limited to the demand of the establishment of the defendant’s liability (Article 2.3), is decided by the legal qualification of the claim that the members of the group intend to pursue in the later cases with the use of the precedent obtained in group proceedings. If such a claim falls within the subjective scope of the Act indicated in Article 1.2, group proceedings on the establishment of the defendant’s liability is admissible. The Court can establish the existence of an interest in initiating group proceedings on the part of the group members on the basis of the future monetary claims indicated therein. The Court can, for this purpose, call upon the group members to specify the individual claims, which they intend to pursue on the basis of a precedent obtained in group proceedings.
  2. Establishment of liability on the grounds of Article 2.3 of the Act should be understood autonomously with the consideration of the goals and functions of the group proceedings. Specifically, the establishment of liability is not identical with the recognition of the claim as substantiated, in fact as in the case of the judgement as to the principle (Article 318 of the CCP).
  3. The issuance of a declaratory judgement regarding a large group of persons in group proceedings is aimed solely at establishing the defendant’s liability for an indicated event – this does not, however, refer also to the establishment that damage was incurred by each of the individual group members. The subject of group proceedings, with the demand of establishment, is only mutual circumstances of all of the group members, and not individual circumstances of the individual members, which will not be examined until further individual trials. The probability that the damage occurred, although in group proceedingsthe court may prejudge this stance firmly if this is possible and purposeful, should be deemed as sufficient.
  4. The establishment of the defendant’s liability in a case for monetary claim resulting from a tortious act constituting one event (article 2.3 in conjunction with Article 1.1 and 2) is admissible in group proceedings also in a situation in which the precondition of incurring damages and their amount is dependent on individual factual circumstances regarding the individual members of the group. The facts pertaining to the amount or the maturity of specific, individual claims should not be taken into consideration in the examination and assessment on the grounds of Article 1.1 of the Act on Pursuing Claims in Group Proceedings of the identicalness of the factual basis of the claim, or whether it is the same.
  5. The non-submission by one of the members of the group of a declaration on acceding to the group, provided for in Article 12, does not lead to the inadmissibility of group proceedings in relation to all group members on the grounds of non-adherence to the observatiton of the homogeneity of the claim condition. The Court should consider this circumstance in the decision on the establishment of the composition of the group (Article 17.1), by not including this person in the composition of the group.
  6. Even if the indicated event can also lead to the violation of a personal interest, the compensatory claim for incurring pecuniary damages in relation to this event, is not a claim on account of a tortious act on the protection of personal interests in the meaning of Article 1.2.