- A sole entrepreneur or a partner in a civil law partnership (therefore as a natural person) can purchase an object either as an entrepreneur or as a consumer. In such a case the purpose for which the agreement is concluded is the decisive factor.
- The potential disposal of the tickets bought by consumers to other people has no influence on the decision whether the claims are based on an equal legal basis.
- It is therefore difficult to recognize that the claims of the consumers, who purchased the tickets (admittedly in a special offer including gratuitous services, which are not the object of their claims)cannot be deemed as the claims based on the equal or the same factual basis.
The Regional Court in Warsaw having examined the case of A.R. – as a group representative against (…) Związek (…) in W. for payment, during an in camera hearing on 2nd October 2017,
hereby decides:
- to proceed the case in the group proceedings and that the group represented by A.R. consists of: [114 group members]
- It is necessary to emphasize some general content-related remarks, which will outline the subject of the dispute. Firstly, the specific nature of group proceedings needs to be emphasized, some issues of which are the examination and adjudication in this case. The legislator’s intention in introducing group proceedings into the Polish legal system was to create regulations which would provide a procedural protection of interests of several subjects injured as a result of one (common) event. This particular type of proceedings – the significance of which is expressed in the fact that it is regulated by a separate statute – is facultative, as initiating it requires a motion for the opening of group proceedings to be included in the statement of claims. It is essential to indicate the fact that group proceedings, according to the Polish Act on Pursuing Claims in Group Proceedings, is reserved to narrowly defined categories of cases which further results in the fact that only specific and listed types of claims might only be pursued in these types of proceedings (consumer protection, hazardous product liability, tortious liability claims).
- Admissibility of initiating and conducting the proceedings as well as rendering a judgment bearing on the merits of the matter is conditioned by procedural prerequisites. Those applicable to regular proceedings under the Polish Code of Civil Procedure are also applicable to group proceedings. Nevertheless, there are further premises of admissibility of group proceedings, specific for these types of proceedings only. All these premises, with regard to all the types of cases which might be heard in group proceedings, are listed in Article 1 (1), in cases regarding pecuniary claims an extra premise appears in Article 2 (1) of the Act. These premises are both subjective ( the minimum number of group members) and objective (homogeneity of claims, common factual basis of claims, the type of claims and, in case of pecuniary claims, standardization of value of the claims taking into account the common factual basis of the claims). In case of inadmissibility of group proceedings due to the non-compliance with of any of the above mentioned premises defined in Article 1 (1) or Article 2 (1) of the Act, the court shall reject the action.
- Group proceedings is to constitute an effective protective measure for legal rights when there is such a bond between these rights that hearing the case with all these claims brought in a court cumulatively is cost-effective in procedural and economic terms. The motive for the abovementioned restrictions is the will to ensure homogeneity of the group and thus, as a consequence, guarantee smooth prosecution of group proceedings. Under the Act on Pursuing Claims in Group Proceedings this goal is to be realized through the condition of homogeneity of group members’ claims and their being based on the same or common factual basis. This wording refers to Article 72 (1) (2) of the Polish Code of Civil Procedure with the proviso that Article 1 (1) of the Act on Pursuing Claims in Group Proceedings does not require homogeneous claims to be based on an equal factual basis.
- The criterion of the common factual basis (the same or equal) refers to the circumstances from which the claims brought in group proceedings originate. The same factual circumstances refer to a situation when the claims brought in the class proceeding originate from one particular event, equal factual circumstances in turn refer to claims originating from a series of analogous events. This distinction might sometimes be fluid, nevertheless it is practically insignificant with respect to admissibility of group proceedings. The factual basis means, in the meaning of Article 1 (1) of the Act, the fundamental initial complex of facts substantiating the claims. The premise of homogeneity of the claims should be understood in such a narrow way that, after the group’s composition is established pursuant to Article 17 (1) of the Act, all the claims brought before court could be adjudicated on and settled cumulatively. The goal is to arrive, as far as possible, at such a state of affairs where the issues covered by the court’s cognition after establishing the group’s composition, with taking into account any potential subgroupsare identical (common) for all the group members. The premise of homogeneity of claims and their common factual basis pertain, to the same degree, to all the claims brought in group proceedings. Pursuing in one group by some persons diverse types of claims or claims based on different factual bases is excluded. This ban cannot be circumvented by creating subgroups with violation of the rules described above.
The Court of Appeals in Warsaw 3st Labor and Social Security Division in the following ruling bench:
Presiding Judge: Magdalena Kostro-Wesołowska, Court of Appeals Judge
Judges: Aleksandra Tobiasz-Skrzypek, Court of Appeals Judge (rapporteur); Danuta Malec, Regional Court Judge (delegated)
having examined at the hearing in camera the case filed by: (…) against the State Treasury – the Minister for Justice for payment
following the Claimant’s appeal against the decision of the Regional Court in Warsaw 21st Labor Division dated 15th September 2016, file ref. no.: XXI 230/15
decides to:
- dismiss the appeal,
- not to charge the costs of the appeal proceedings to the Claimant.
- The term “claim” within the meaning of Article 1 of the Act on Pursuing Claims in Group Proceedings means the demand of the statement of claims.
- Not only an action for a performance but also an action for declaration or the shaping of a legal relation or right may be pursued in group proceedings.
- A class action is admissible if there are nonsignificant dissimilarities among individual basis of the claims provided that the significant factual circumstances substantiate a demand which is common for all claims. The essence of group proceedings is the commonality of the demand which must be typical (common) for all claims.
- The circumstances which objectively or subjectively diversify the situation of the members of the group are not assessed at the stage of certification.
- Due to axiological assumptions underlying Article 8 of the Act on Pursuing Claims in Group Proceedings (balance between parties’ rights in the proceedings, prevention of litigiousness), in group proceedings the court should generally allow the motion for the Claimant’s deposit.
The Court of Appeals in Łódź I Civil Division in the following ruling bench:
Presiding Judge: Dariusz Limiera, Court of Appeals Judge
Judges: (…), Court of Appeals Judge; Bożena Rządzińska, Regional Court Judge (delegated)
having examined on 15th March 2017 in Łódź at the hearing in camera the case filed by the Municipal Consumer Ombudsman in W. against (…) S.A. with its registered office in W. for establishment of the defendant’s liability, following the defendant’s complaint against the decision of the Regional Court in Łódź of 19th December 2016, file ref. no. I C 519/16,
decides to:
dismiss the complaint.
- The examination of the case in the group proceedings is allowed only after cumulative satisfaction of the premises of such proceedings, including: homogeneity of the group members’ claims, equal or identical factual basis of the group members’ claims, number of the group members, standardization of pecuniary claims, subjective capacity of the claims to be examined in group proceedings.
- The requirement of the same factual basis does not mean that all factual circumstances must be identical with respect to each member of the group, because always, even in the case of the same factual basis, there are individual circumstances which refer to particular group members. The factual basis of the claim consists in facts which substantiate the claimant’s demand, therefore, that basis must include facts primarily substantiating the legal relations which are the subject of the statement of claims.
The Court of Appeals in Warsaw 6th Civil Division in the following ruling bench:
Marek Kolasiński, Court of Appeals Judge
Mariusz Łodko, Court of Appeals Judge
Magdalena Sajur-Kordula, Court of Appeals Judge
having examined on 16th February 2017 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in O. against Bank (…) S.A. in W. for payment, following the defendant’s complaint against the decision of the Regional Court in Warsaw of 13th September 2016, case file no. III C 1089/15,
decides to:
dismiss the complaint.
- The declaration on joining the group is a declaration of intent. The lack of the date on the document does not affect the validity and credibility of the declaration on joining the group.
- The presence of non-significant dissimilarities between individual factual bases of claims of particular group members does not preclude recognition of the claims as based on the same factual basis.
The Regional Court in Wrocław 1st Civil Division in the following ruling bench:
Adam Maciński, Regional Court Judge
Krzysztof Rudnicki, Regional Court Judge
Anna Stańczyk, Regional Court Judge
having examined on 7th December 2016 in Wrocław at the hearing the case filed by D. D. acting as a group representative against Bank (…) S.A. with its registered office in W. for payment,
hereby decides to:
examine the case in group proceedings.
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.
The authority obliged to provide public sector information is not responsible for its processing, further sharing and use.
- The case may be examined in group proceedings if the following premises are fulfilled: at least 10 people pursuing one homogenous claim based on the same or similar factual basis and alternative inclusion of the object of the proceedings within the following categories: claims for the protection of consumers or claims for damage caused by hazardous products or claims for damage caused by a tort, save for claims for the protection of personal rights (Article 1 of Act on Pursuing Claims in Group Proceedings).
- ’The same‘ factual basis of pursued claims exists when factual circumstances are identical and a legal protection is sought by participants of one event, thus a bond based on the unity of the damage-causing event occurs. Similar‘ (equal) factual basis means the similarity of particular established facts.
- The essence of group proceedings is the commonality of demand which must be typical (common) for all claims and is based on the identical factual situation of the group members. non-significant dissimilarities may exist among individual grounds of the claims , but the significant factual circumstances should substantiate a demand which is common for all claims.
- The literal wording of the provision indicates that for ascertaining the admissibility of the group proceedings it is sufficient if at least 10 people pursue homogenous claims based on the same factual basis. Whereas, ascertaining whether all persons who submitted declarations on joining the group may be its members – is the next stage of group proceedings, which pursuant to Article 17 of the Act on Pursuing Claims in Group Proceedings ends with a decision on the group composition.
- The term ’claim’ within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings (unlike Article 2 of the Act on Pursuing Claims in Group Proceedings) means the demand of the statement of claims. In consequence, the group proceedings are not limited only to action for performance.
- The important dissimilarity between filing an action for establishment of liability under Article 189 CCP and an action under Article 2.3 of the Act on Pursuing Claims in Group Proceedings ’for establishment of the defendant’s liability‘ is that the claimant is obligated to prove the legal interest if he pursues the claim under Article 189 CCP.
- The defendant who files a motion for obligating the claimant to make a deposit to secure the costs of the proceedings, should make plausible, firstly, that the pursued claims against him is obviously unfounded or that the acceptance of the statement of claims is unlikely, therefore has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the costs from the opposite party impossible or significantly more difficult.
The Regional Court in Łódź 1st Civil Division in the following ruling bench:
Katarzyna Kamińska-Krawczyk, Regional Court Judge
Marzena Kluba, Regional Court Judge
Anna Jóźwiak, Regional Court Judge
having examined on 19th December 2016 in Łódź at the hearing the group action filed by the Municipal Consumer Ombudsman in W. against (…) with its registered office in W. for establishment of the defendant’s liability,
concerning: the admissibility of the group proceedings and defendant’s application to obligate the claimant to pay a deposit to secure the costs of the proceedings,
decides to:
- examine the case in group proceedings;
- dismiss the defendant’s motion to obligate the claimant to pay the deposit to secure the costs of the proceedings.
Non-final decision.
- Admissibility of a legal course depends on the factual circumstances provided by claimant as a basis of the claim. It is not contingent upon the demonstration of the existence of the claim. Neither is it dependent on the defendant’s charges or the defence method selected thereby. Court proceedings should prove whether the assertions presented in the statement of claims find a legal basis in provisions of substantive law. The court assesses only the admissibility of group proceedings i.e. the circumstances which substantiate examination of the case in group proceedings.
- A factual basis of the claims in group proceedings should be understood as the set of facts which substantiate Claimant’s claims in group proceedings. Claims may be based on the same or equal factual basis. Such claims should result from the same event or from similar events. When the same set of facts is the basis of rights and the parties to the proceedings are bound thereby, such a situation should be deemed as the same factual basis. In turn a set of analogical facts in the scope of a specific claim should be deemed as the equal factual basis.
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-Łagiewka District Court Judge (delegated)
having examined on the 15th December 2016 at the hearing in Warsaw, the case filed by the Consumer Ombudsman against (…) joint stock company with the registered office in Warsaw, for payment,
decides to:
reject the statement of claims in group proceedings.
The decision was corrected by the decision of the Court of Appeals in Warsaw 6th Civil Division of 6th December 2017, VI ACz 1357/17
- The condition of the identical factual basis is met when the facts substantiating the existence of the legal relationship, which is the basis of the claims, are equal for all group members. The essence of the group proceedings is the commonality manifest in the demand which must be typical (common) for all claims.
- In the court’s opinion, during the examination of the premise of the same factual basis of the claims, the circumstances which have significance for the final ruling, not any circumstances which appear under contracts, should be taken into account.
- Article 2 (1) of the Act on Pursuing Claims in Group Proceedings explicitly refers to standardization of the amount of claims, not to standardization of claim value calculation rules. The standardization of a claim involves each member of the group, therefore the consent thereto should be expressed by all group members. The standardization of the claims should be carried out done on the grounds of common circumstances of the case, i.e. the same for all group members and simultaneously different from these which determined the separation of other groups.
- Rendering a decision on examination of the case in group proceedings is not a directional judgment, which somewhat – in the case of finding the procedure advisable –automatically cause the necessity to render a judgment in favor of the Claimant. Before the final ruling, in the group proceedings, the court is obligated to reassess the preliminary issues, examined at the previous stages of the proceedings, which decide on the admissibility and form of judgment. Therefore, it is obvious that the reassessment includes all premises of the admissibility of group proceedings (number of members in the group, homogeneity of claims, the same or similar factual basis and the legal classification of claims). The judgment on the merits may be issued only after conclusion that the premises of admissibility are met.
- Rendering a decision on the admissibility of group proceedings, pursuant to Article 10 (1) of the Act on Pursuing Claims in Group Proceedings, does not preclude a later ascertainment of inadmissibility of the proceedings at each stage thereof, what results in an amendment of the decision (pursuant to Article 359 CCP) and rejection of the statement of claims.
- The optionality of the deposit in group proceedings does not mean discretion. The court shall consider all circumstances of the case in respect to advisability of application of this institution.
- The defendant, who files a motion for deposit, should make plausible, firstly, that the action against him is obviously unfounded or the statement of claims is unlikely to be allowed, therefore it has the characteristics of litigiousness. Secondly, the defendant should make plausible that the lack of the deposit to secure the future claim for reimbursement of costs of the proceedings will make an execution of the cost from the opposite party impossible or significantly more difficult.
The Regional Court in Warsaw III Civil Division in the following ruling bench:
Agnieszka Rafałko, Regional Court Judge
Ewa Jończyk, Regional Court Judge
Mariusz Solka, Regional Court Judge
having examined on 5th January 2016 in Warsaw at the hearing the class action filed by the Municipal Consumer Ombudsman in S. against V. L. Association (…) S.A. V. (…) with its registered office in W. for payment,
decides to:
- examine the case in the group proceedings;
- dismiss the defendant’s motion to obligate the claimant to pay the deposit to secure the costs of the proceedings.
- The case on the protection of consumers appears in Article 61 § 1 CCP that determines the scope of activity of non-governmental organisations. According to Article 221 CC, a consumer is a natural person who performs acts in law which are not directly connected with his economic or professional activity. The aim of the activity which has no business aspect, is fundamental.
- The status of a given person as a consumer shall be appraised at the moment of performing the act in law. The subsequent changes in the purpose of the acquired good or service shall not lead to the change of a once adopted establishment.
- The fact of acquiring the real estate in which the business activity was subsequently led does not mean that the given person was not a consumer on the date of concluding the contract. As well, the fact that the given person runs a business or professional activity in the scope of granting a credit does not mean that he was not a consumer at the moment of concluding the contract with a bank concerning him personally.
- The fact that the part of the Members of the Group signed the appendix to the contract does not exclude the possibility of declaring the primary version of the contract null and void. However, the issue of the existence of the legal interest in demanding such a declaration shall be assessed.
- Claims based on an equal factual basis are claims based on the same factual basis (a sensu stricte prerequisite) or claims having common essential factual circumstances (a sensu largo prerequisite). That means that the prerequisite of the equal or the same factual basis means that the identical circumstances do not have to be the factual basis of the claim, but the significant similarity of them is sufficient. As a result, the factual basis does not have to be equal but at least the same.
- The slight differences may exist between the individual factual basis of respective claims, nevertheless it is indispensable that the essential factual circumstances remain common for all of the claims. Such circumstances common for all of the claims are contracts concluded by the members of the group (…) containing abusive clauses, introducing the identical mechanism based on the bank’s discretion in determining the level of indebtedness of the borrower, that leads, according to the plaintiff, to the invalidity of those contracts.
- The legal proceedings of the court regarding the examination of the admissibility of the class action are specific pre-litigation proceedings. The Court decides about the admissibility of the class action only on the basis of assessment of the lawsuit, because it makes a formal-legal appraisal on the admissibility of those proceedings. The Court is not entitled to examine the substantive prerequisites of the claim.
- The requirement of the common factual basis of claims does not mean that all the facts of the case need to be identical for each member of the group, because always – even in the case of the same basis of the claim – there will be individual circumstances pertaining to individual members of the group. The condition of the common factual basis is met when the facts legitimising the existence of a specific legal relationship which is the basis for the claim are the same for all members of the group.
- The examination of the admissibility of group proceedings cannot be preceded by an examination of its legitimacy, in this case the latter constituting an analysis of whether the triggering event specified in the statement of claims in reality caused the alleged financial loss, or commercials broadcast at the request of the defendant affected the entities offering motor insurance, or entities offering other insurance products, and also whether the victim of the defendant’s actions could only be persons who have the status of an insurance agent or other persons.
The Court of Appeals in Warsaw, 1st Civil Division in the following ruling bench:
Presiding Judge: Jerzy Paszkowski, Court of Appeals Judge
Judges: Marzena Miąskiewicz, Regional Court Judge, Bernard Chazan, Court of Appeals Judge
having examined on 25th October 2016 in Warsaw at the hearing in camera the case filed by (…) Ltd Office in W. against (…) Society (…) joint stock company for compensation following the defendant’s complaint against the decision of the Regional Court in Warsaw of 6th June 2016, file ref. no. XVI GC 352/15
hereby decides to:
dismiss the complaint.
