- Claims based on the same factual basis are claims, the factual basis of which are the same or claims whose relevant factual circumstances are common. The abovementioned “commonality” should be interpreted widely. The requirement of the same or equal factual basis of the claims does not mean that the factual basis of the lawsuit consists of identical circumstances, but their relevant similarity is sufficient.
- The essence of group proceedings is the gathering of many entities’ claims in one proceeding. Such a cumulation is justified due to the economics of the proceedings and the pointlessness of conducting many similar cases. Group proceedings are to be a special procedural institution to resolve more and more frequent conflicts which a larger number of people are involved in. The function of the proceedings is, among others, increasing the efficiency of examining cases regarding the same legal and factual issues, by including the assessment of these issues in one proceeding. This allows the courts to be relieved from the repeated and time-consuming judgement of analogous issues constituting the premises for many claims submitted by individual group members and eliminates the risk of incompatible judicature on these issues.
- The object of the group proceedings aimed at the establishment of the defendant’s liability, are the only circumstances common for all group members, not individual circumstances concerning particular group members, which will be examined in subsequent individual proceedings.
The Court of Appeals in Warsaw 5th Civil Division with the following ruling bench:
Presiding Judge: Bernard Chazan, Court of Appeals Judge
Judges: Edyta Jefimko, Court of Appeals Judge (rapporteur)
Robert Obrębski, Court of Appeals Judge
having examined on 10th March 2020 in Warsaw at the hearing in camera the group action filed by Ł. K. against (…) Bank Spółka Akcyjna with its registered office in W., for payment,
following the defendant’s complaint against the decision of the Regional Court in Warsaw of 27th September 2019, file ref. no. IV C 281/18,
decides to
- dismiss the complaint.
- The assumption that the mere fact that a judge incurred an obligation resulting from the credit agreement of various nature, e.g. in PLN, by definition means that they are not impartial and are obligated to recuse themselves from examining any pending case between the borrowers and the bank, leads to consequences that are contrary to the public interest and detrimental for the justice system.
- The concept of the defendant’s liability under Article 2.3 of Act on Pursuing Claims in Group Proceedings has a specific autonomous meaning, other than in Article 318 of the Polish Code of Civil Procedure, as well as in Article 189 of CCP, which is determined by the purpose and functions of the group proceedings as specific proceedings that should ease and improve the resolving of conflicts.
- The obligation to repay the amount of a used credit in specified repayment terms is the borrowers’ main performance. A valorization clause affects the amount of such performance. Stipulating such a clause in a contract cannot be deemed to be an action falling within the freedom of contract under Article 353(1) of Polish Civil Code, but gross exceeding the limits of that freedom.
- The moment relevant to decide whether a particular person is a consumer is the moment of performance of the legal act.
- The valorization or indexation clause is a main contractual provision. Unlike the currency spread clause, that clause is the essentialia negoti of the examined contracts.
- A gross violation of the consumer’s interests should be understood as an unjustified disproportion, to the consumer’s disadvantage, between their rights and obligations in a specific contractual relationship. Acting contrary to good practices (in the scope of shaping the content of the contractual relationship) means that the second party (consumer’s contractual partner) creates such contractual clauses which harm the contractual balance between the parties to the relationship.
The Court of Appeals in Łódź 1st Civil Division with the following ruling bench:
Presiding Judge: Małgorzata Dzięciołowska, Court of Appeals Judge (rapporteur)
Judges: Dorota Ochalska-Gola, Court of Appeals Judge
Jarosław Pawlak, Regional Court Judge (delegated)
having examined on 27th February 2020 in Łódź at the hearing the group action filed by the Municipal Consumer Ombudsman in W. against (…) Spółka Akcyjna with its registered office in W., for the establishment of the defendant’s liability,
following the plaintiff’s appeal against the judgement of the Regional Court in Łódź of 19th October 2018, file ref. no. I C 519/16,
decides to
- set aside the contested judgement in points 1., 2. and 4. of the operative part of the judgement and refer the case back to the Regional Court in Łódź for reconsideration in that extent, entrusting this Court to decide on the costs of the appeal proceedings;
- dismiss the appeal in the remaining part.
- Pursuant to Article 15 of Act on Pursuing Claims in Group Proceedings the deadline to raise objections shall be stipulated in the form of a decision (the Act uses the expression “within the term stipulated by the court”). However, imposing an obligation to express the defendant’s stance on successive modifications of the scope of the claim in the form of orders shall not be considered as resulting in being deprived the possibility to protect the party’s rights.
- The opinion that a list of group members shall be only one and final and the term to raise objections starts as of its service, is not correct.
- Running a business activity in the real estate, which was financed by a credit (loan) does not prejudge the direct relation between a contract of credit and the business activity.
- Group proceedings for the establishment of the defendant’s liability is specific and autonomous in nature and cannot be identified (in terms of structure) with the proceedings ending with a preliminary judgement within the meaning of Article 318 of Polish Code of Civil Procedure, as well as proceedings for the determination of law or a legal relationship pursuant to Article 189 of the Polish Code of Civil Procedure.
Court of Appeals in Warsaw 1st Civil Division with the following ruling bench:
Presiding Judge: Katarzyna Polańska-Farion, Court of Appeals Judge (rapporteur)
Judges: Joanna Wiśniewska-Sadomska, Court of Appeals Judge
Małgorzata Sławińska, Regional Court Judge (delegated)
having examined on 27th August 2019 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,
following parties’ complaints against the decision of the Regional Court in Warsaw of 14th January 2019, file ref. no I C 1281/15,
hereby decides to:
- vary the contested decision in such a manner that deleted once data “S. J.”, “K. D.”, repeated in point 1., and sentence “Z. J. (second stage – an extension of request on the establishment of the liability for using unfair contractual terms in the subsequent contract – no. (…))”, remove: B. K., J. W., A. L., J. M. and M. S. from the group refuse to grant group member status to S. L. and M. N., establish that I. G., P. G. and E. G. are group members;
- dismiss parties’ complaints in the tremaining parts;
- entrust the Regional Court in Warsaw to decide on the costs of the complaint’s proceedings in a final ruling.
- 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.
- 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.
- 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).
- It is possible to remedy the formal defects in the form of a signature after the expiry of the deadline for submission of the declarations on joining the group and before submitting the list of persons who joined the group to the court.
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.
- The charge of limitation raised against some of the members of the group should be resolved in potential future individual proceedings.
- The type of possession is therefore determined primarily by the extent of actual power over the item and whether it takes place with the express or implied consent of another person. An autonomous possession may be established where the de facto power over an item has the general characteristics facilitating the establishment of possession and, moreover, consists in the use of the item with the exclusion of other persons and is independent of the express or implied consent of another person, in particular, independent of the owner’s consent.
- Litigation against the State Treasury means that where multiple claims are filed, in relation to different organizational units, if even one of them is allowed, in practice, it means winning the trial in its entirety. Such a judgment, once it has become final, acquires the character of an enforcement title, on the basis of which the creditor can satisfy themselves to the same extent as if the claim had been allowed in respect of each of the statio fisci.
- In the Court’s opinion, the requirement to comply with the “principle of sustainable development” concerns both of the indicated issues, i.e. ensures: safety and environmental protection. The social benefits achieved in each of these fields must be at least proportional, socially adequate to the losses incurred while ensuring indicated goals.
- The incorrectness of exercising public authority may consist of violations of constitutional rights and freedoms, constitutional rules of public authority operations, requirements set forth in statutes, executive acts (breaches of substantive and procedural law), as well as violations of non-legislative rules connected in different ways with legislative rules. The object of the public authority’s tort may be solely the violation of particular provisions ordering (or prohibiting) specific acts from being performed in a given situation, but not the violation of general aims of broadly understood criminal proceedings, directives and postulates.
- In the Court’s opinion, flood protection, ensured among others through the system of prohibitions and orders stipulated in the Water Law, constitutes an imperative interference with individual rights, i.e. it is a form of the exercising public authority, the main element of which is the inequality of the parties. On the other hand, the duties belonging to the so-called dominium area, are only those whose purpose is the use of property by the state while participating in ordinary civil law transactions.
The Regional Court in Płock 1st Civil Division with the following ruling bench:
Presiding judge: Agnieszka Bilkiewicz, Regional Court Judge
Judges: Joanna Szatkowska, Regional Court Judge, Marta Dunajska, Regional Court Judge
having examined on 9th April 2018 in Płock at the hearing the group action filed by W. S. (1) acting as a representative of the group consisting of [data of 28 group members] against the State Treasury – Voivode (…), State (…), the (…) Voivodeship and the P. Poviat, for the establishment of the defendants’ liability,
decides to
- establish the joint and several liability of the State Treasury – Voivode (…), (…) and (…) Voivodeship for damage caused to group members consisting of: [data of 28 group members], resulting from tort of an illegal act committed by the defendants while exercising public authority in scope of flood protection in the area of the defendants’ jurisdiction, which led to the breaking of the flood bank located along the left bank of the W. river, k.m. W. 611, in the town of the Ś., S. commune, P. Poviat, (…) Voivodeship, on 23rd May 2010, and then two floodings of the area located on the left side of the W. river, in the area of D. I. – D. in May and June 2010;
- dismiss the action against the P. Poviat
- determine the court fee for the action for establishment at PLN 5,000;
- order the claimant W. S. (1) to pay the amount of PLN 44,217 (forty four thousand two hundred and seventeen zlotys) to the benefit of defendant the P. Poviat as reimbursement of the costs of the proceedings;
- order the defendants: the State Treasury – Voivode (…), State (…) and the (…) Voivodeship to jointly and severally pay the amount of PLN 53,883 (fifty three thousand eight hundred and eighty three zlotys) to the benefit of the claimant W. S. (1) as reimbursement of the costs of the proceedings;
- order the defendants: the State Treasury – Voivode (…), State (…) and the (…) Voivodeship to jointly and severally pay the amount of PLN 52,912.75 (fifty two thousand nine hundred and twelve zlotys seventy five groszy) to the benefit of the State Treasury – Regional Court in Płock as reimbursement of the costs of the proceedings.
