- There are no grounds for identifying the factual basis of a claim within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings with all circumstances which require to be established in order to rule in a judgement on the legitimacy of the claim; it is also incorrect to find that the facts raised by the defendant in the course of the proceedings constitute the basis of the action.
- At the stage pertaining to the examination of the admissibility of group proceedings, anticipating the meaning of certain factual circumstances relevant for the assessment of the action’s legitimacy is not allowed.
- Within the meaning of Article 1.2 of the Act on Pursuing Claims in Group Proceedings, the category of claims for the protection of consumers undoubtedly includes pecuniary claims pursued with connection with using abusive clauses by the entrepreneur in their dealing with consumers.
- The charge of participation of individuals not having the status of a consumer is of no significance at the stage of assessment of the admissibility of the group proceedings. Under Article 17.1 of the Act on Pursuing Claims in Group Proceedings, whether given individuals were consumers at the conclusion of the mortgage loan agreements should be settled at the stage of establishing the group’s composition whereas not at the stage of assessment of admissibility of the group proceedings which may be initiated already with participation of ten group members complying with the conditions of participation in such proceedings.
- Even in the cases where a demand pertains to awarding standardised amounts due to members of a group (subgroup), in assessing whether the claim is based on the same factual basis, it is not required for all the factual circumstances, without exception, substantiating the claims pursued by each member of a group, also those pertaining to the scope of the damage, to be identical. Hence, the group proceedings may not be limited only to cases where group members pursue identical claims arising from identical circumstances. It is assumed that it is sufficient if the basic circumstances capable of settling the very principle of defendant’s liability are the same for the group’s members.
- A judgement ruling on the legitimacy of class action for establishment a defendant’s liability, based only on statements common for all the group members does not constitute a preliminary judgement mentioned in Article 318 of the CCP. This is because it rules on the principle of the claim formulated with omitting individual circumstances which are not subject to examination in group proceedings, but in separate lawsuits initiated by individual group members after the demand for the establishment, examined in a class action was allowed with effect for such members.
- The binding force of a judgement on establishment a defendant’s liability towards group members based only on common circumstances is limited to such circumstances. The issuing of such a judgement does not have to prejudge on all prerequisites of the defendant’s liability.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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’.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
The Court of Appeals in Warsaw 1st Civil Division in the following ruling bench:
Presiding Judge: Marzena Góral, Court of Appeals Judge
Judges: Edyta Jefimko, Court of Appeals Judge (rapporteur); Joanna Staszewska, Regional Court Judge (delegated)
having examined on 13th November 2014 at the hearing the case filed by the Poviat of (…) as the representative of the group of poviats comprising: (…) against the State Treasury – the Minister of Infrastructure and Development for establishment following the Claimant’s appeal against the decision of the Regional Court in Warsaw dated 17th December 2013, file ref. no. II C 593/12
decides to:
on the grounds of Article 390 (1) of the Polish Code of Civil Procedure to submit the legal issue with the following content for settlement to the Supreme Court of the Republic of Poland:
’In the case of filing of an action on the grounds of Article 2 (3) of the Polish Act on Pursuing Claims in Group Proceedings – for the establishment of the defendant’s compensatory liability for damage incurred by legislative nonfeasance – is the court entitled to examine the legitimacy of the allegation that the compensatory claim is barred by statute of limitations?’
- The scope of the action is determined by the claimant and the statement of claims determines the frames of the further proceedings. However, the scope of the proceedings is not identical with the scope of the statement of claims. The proceedings do not always use all the factual circumstances indicated by the claimant, it is also necessary to establish facts not indicated in connection with the claim’s construction. The scope of proceedings will in the future determine the scope of adjudication of the case. In examining the admissibility of the group proceedings, the court must first and foremost assess what claim the claimant is bringing forth and what circumstances the claimant should prove with this claim. Only in further order it is possible to assess whether these circumstances will pass the test from Article 1 of the Act on Pursuing Claims in Group Proceedings.
- An action for the establishment of liability is an action for establishing a principle, without awarding compensation. In the frames of an action for the establishment of liability the court does not examine circumstances impacting the determination of the compensation amount.
- In the Polish legal system, participation in the group is voluntary. Potential joining to the group after the action is allowed to be examined in group proceedings entitles the defendant to file allegations related to membership in the group. The grounds for such an allegation may also be the lack of the similar factual basis of the joining member’s claim. At the stage of the assessment of admissibility of group proceedings there are neither grounds nor the need to examine the factual circumstances in the context of potential future members of the group.
- The assessment of the State Treasury’s liability towards individual members of the group must have an individualised nature. The domination of elements individual for group members over common issues renders the settlement of the case concerning tortious claims impossible in group proceedings.
- The claims can be considered as homogenous when they result from one type of legal relationship. Claims pursued by the group’s representative are claims for compensation, resulting from the defendant’s tort, hence they are homogenous claims.
- A factual basis of the claims in group proceedings is a set of statements indicated by the group’s representative in the substantiation of the statement of claims from which the claim of each of the group members expressed in the said statement of claims is derived. An equal factual basis of claims can be spoken of when the fundamental factual circumstances comprising the basis for the demand of the statement of claims are similar.
- In the case of tortious liability, the commonality of the factual basis is preserved when all factual circumstances comprising the grounds of the defendant’s liability occur in relation to all the group members. Therefore, these must be common for all the group members: damage-causing events, a causal link between these events and the damage and the damage itself. Claims stemming from the same type of event (tort) may be recognised as based on the equal (similar) factual basis.
- The issue of the existence of the causal link between the defendant’s specific actions and omissions and the occurrence of damage to an individual undoubtedly belongs to the sphere of factual circumstances resting at the basis of the action. Hence, it is not possible to hear a case in which this issue is differently shaped for various members of the group in group proceedings.
- The objective of the proceedings in the case for the establishment of the defendant’s tortious liability is determining a homogenous principle of the defendant’s liability towards all members of the group and parties which may acquire this status. As it follows directly from the Act on Pursuing Claims in Group Proceedings (Article 2.3) in a declaratory action conducted in group proceedings, the claimant does not have to demonstrate the existence of a legal interest. Such a regulation stems precisely from assuming that – in tortious liability cases – the damage occurrence mechanism is equal for all the members of the group.
- Claims based on Article 446.3 of the Civil Code, which aim at remedying the damage consisting in significant deterioration in living standards due to the death of the closest family member who died in a construction catastrophe, are of an individual nature and require the factual circumstances concerning the entitled party’s relationship with the deceased to be examined in detail by the court, which opposes the construction of group proceedings and does not allow the existence of legal relationships identical towards all members of a given group to be assumed, and hence the existence of an identical (the same or equal) factual basis to be assumed.
The decision was reversed by the decision of the Supreme Court of 28th January 2015, file ref. no. I CSK 533/14.
- A declaratory judgment rendered in group proceedings rather corresponds to an interlocutory judgment known for a long time in classical civil proceedings. This would mean that group proceedings would cover all the premises of legitimacy and contestability of a claim, including the charge of limitation period, leaving only the issue of the value of claims to be settled in further actions.
- The argument that Article 2 (3) of the Act on Pursuing Claims in Group Proceedings directly excludes legal interest as a prerequisite of class action, cannot be successfully used to undermine the thesis stated hereinbefore. It seems that the rationale of the regulation was to prevent the dismissal of a claim for establishment of one’s liability due only to the fact that submitting a demand for performance was possible. This would mean that ’an action for establishment of liability in group proceedings has become a particular type of an action in group proceedings, not identical one with the claim for establishment of liability regulated under the Code of Civil Procedure, similarly as the claim for performance in group proceedings shows characteristics setting it apart from a classical claim action.
The Regional Court in Warsaw 2nd Civil Division in the following ruling bench:
Presiding Judge: Tomasz Wojciechowski, Regional Court Judge
Judges: Sylwia Urbańska, Regional Court Judge, Katarzyna Waseńczuk, District Court Judge (delegated)
having examined on 17th December 2013 the case filed by the Poviat of (…) as the representative of the group of Poviats (…) against the State Treasury – the Minister of Infrastructure and Development represented by the Office of the Attorney General of the State Treasury
for the establishment
hereby decides to:
- dismiss the claim;
- award from the Poviat of (…) to the State Treasury – the Office of the Attorney General the amount of PLN 10,800 (ten thousand eight hundred złoty) as the costs of the proceeding;
- establish the final court fee in the amount of PLN 5,000 ;
- order the State Treasury to reimburse the Poviat of (…) with the amount of PLN 5,000 as the differential amount between the final and temporary court fee.
- A demand for the establishment of a defendant’s liability combined with a demand for the establishment that in relation to each member of the group circumstances mentioned in Article 446.3 of the Civil Code occurred, i.e. deterioration in the living standard after the death of a relative, is a claim which does not meet the homogeneity criterion.
- The notion of liability in the Act on Pursuing Claims in Group Proceedings should be understood according to the general principles – as a sanction related to a negative assessment of the obligated party’s conduct – i.e. an obligation to provide a performance. Therefore, it is inadmissible to limit a court’s decision to establishing that the defendant holds liability for a specific event, omitting an examination whether a member of the group sustained damage as a result of this event. Establishment in the meaning of Article 2.3 of the Act should be understood analogically as in a declaratory action based on Article 189 of the Code of Civil Procedure, and hence, the establishment at hand means the examination by the court of all prerequisites of liability.
- In the Court’s opinion, the provision of Article 446.3 of the Civil Code from which the group members derive their claims provides for the protection of financial interests. In the event of a death of the closest person, the protection of personal interest in the form of a family bond is presently guaranteed by Article 446.4 of the Civil Code. The claim from Article 446.3 of the Civil Code for damages for the closest family members of the deceased on the grounds of significant deterioration of their living standards is not a claim aimed at the protection of personal interests.
- At the stage of examination of the admissibility of hearing the case in group proceedings, circumstances of potential significance for the content-related decision remain outside of the object of examination – in the case at hand this refers to the defendant’s allegations regarding the lack of the State Treasury’s liability and the defence of limitation. The potential legitimacy of the claims does not constitute a prerequisite for initiating a group proceedings.
The decision was changed by the decision of the Supreme Court of 28th January 2015, file ref. no. I CSK 533/14.
