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.
- The terms without a legal definition in Act on Pursuing Claims in Group Proceedings such as homogeneity of the claims, the common factual basis of claims, the standardisation (equalisation) of claims should be construed in accordance with the goals of the class action proceedings. Undoubtedly, the cumulation of many persons in single proceedings constitutes the essence of group proceedings. Such a cumulation is justified due to the procedural economy and purposelessness of conducting many similar proceedings.
- The difference in standard contract terms and templates binding the members of the group with the defendant, the mode of conclusion of a contract with either the insurer or a dealer, performing the information obligation in another way are not prerequisites which would substantiate deeming the claims impossible to be recognised as being based on the common factual basis. Moreover, differences in the amount of premiums and the frequency of payments do not amend such assessment. The claims of members of the group are based on a common factual basis. i.e. a clause in the agreement which gave the defendant the basis to collect redemption fees which in the opinion of the group members were glaringly extortionate.
The Court of Appeals in Warsaw, 6th Civil Division in the following ruling bench:
Presiding Judge: Jacek Sadomski, Court of Appeals Judge
Judges: Jolanta Pyźlak (rapporteur), Court of Appeals Judge; Marcin Strobel, Court of Appeals Judge
having examined on 7th October 2016 in Warsaw at the hearing in camera in the group proceedings the case filed by the Municipal Consumer Ombudsman in the City Hall of the City of S. as the group representative (…) against Insurance Company in W. for the payment or, potentially, the establishment of the existence or non- existence of legal responsibility
as the result of Defendant’s complaint against the decision of the Regional Court in Warsaw dated 26th April 2016, file ref. no. XXV C 915/14, during an in camera hearing,
decides to:
dismiss the complaint.
- The essence of group proceedings is the commonality manifested in the demand which must be generic (common) for all claims. Therefore, a demand raised by the group representative in a class action must be generic for the entire group he or she represents. The condition indicated means that a legal or factual situation of members of the group must be the same, while the claim pursued must be homogenous (homogeneity of the claims) since only then a joint demand may be raised.
- The requirement of a similar factual basis of claims does not mean that all the circumstances of the case must be identical for each member of the group because, even where the claim is based on an identical basis, there will always be individual circumstances, concerning specific members of the group. The condition of the identical factual basis is met when the facts substantiating the existence of a specific legal relationship which is the basis of the claims are identical in relation to all members of the group.
- The notion of ‘a claim’ used in Article 1 of the Act on Pursuing Claims in Group Proceedings appears in the meaning of a demand in proceedings. It is impossible to assume that it appears in the substantive law meaning, which should be understood exclusively as a possibility to demand a specific conduct from a given person. Consequently, this notion should not be given a meaning taken strictly from substantive law. Therefore, a claim in proceedings is constituted by a claimant’s claim detached from substantive law and regarding the existence of a certain right, presented to the court in order for it to be granted legal protection.
- In light of Article 1 (1) of the Act on Pursuing Claims in Group Proceedings, the pursued claims must be homogenous, i.e. of one kind and based on an equal factual basis. Claims based on an equal factual basis are claims based on an equal factual basis (a sensu stricte prerequisite) or claims having common factual circumstances (a sensu largo prerequisite). The existence of minor differences between individual bases of claims does not eliminate the possibility of pursuing these claims in these proceedings, nevertheless, it is necessary for the substantial factual circumstances to substantiate the demand common for all the claims.
- The assessment of a group member’s status as a consumer is not influenced by education, experience, or practiced profession, whereas at the later stage, while examining the content-related legitimacy of the action, deciding whether the content of the questioned contractual provision shaped in the course of the conducted negotiations and establishing how a given provision was understood by parties will be of substantial significance.
- In compliance with requirements included in the contents of Article 2 of the Act, claims may be standardised on the basis of common circumstances of the case, and therefore similar for the group members and simultaneously different to those which were decisive for the formation of other groups. The standardisation of claims which is a condition of admissibility of conducting a class action may come down to assuming a lump sum value of claims for all claimants (at least within a subgroup) not exceeding the lowest claim due to one of them.
- From the perspective of homogeneity of claims such circumstances as differences in the provisions of agreements or contract templates binding the group members and the defendant are not an important element of the factual basis, insofar as each of the agreements includes a contested clause in dispute. Any discrepancies in the wording of the clause are irrelevant. That is because the decisive factor is whether the same mechanism is applicable in each transaction.
- If all group members submitted declarations on joining the proceedings with the demand for adjudication, including also the demand for establishment of liability – they brought forth demands of the same kind.
The Court of Appeals in Warsaw, 1st Civil Division, in the following ruling bench:
Presiding Judge: Katarzyna Polańska – Farion, Court of Appeals Judge (rapporteur); Edyta Jefimko, Court of Appeals Judge
Judges: Edyta Jefimko (rapporteur), Maciej Dobrzyński, Court of Appeals Judge
Having examined considered on 24th August 2016 in Warsaw at the hearing in camera the case filed by the District Consumer Ombudsman in Poviat of (…) against (…) the insurance company joint stock company in W. for payment
Following the Defendant’s complaint against the decision of the Regional Court in Warsaw dated 20th April 2016, file ref. no. XXIV C 554/14,
decides:
to dismiss the complaint.
- Group members must be bound by a specific subjective and objective bond. The subjective bond pertains to individuals in the group who have suffered as a result of the perpetrator’s single act. In a class action, such individuals pursue claims from one entity (the violator). In turn, the objective commonality is related to the type of violation which has this effect that a joint pursuit of claims by the group is substantiated and possible. The bond existing between members of the group must be based on the same or similar factual basis.
- In the situation in which the factual and legal basis of the pursued claims and their homogeneous nature are the same for all claimants, standardisation of claims, where claimants decide to litigate in a class action, must be performed in relation to all of them, without a possibility of division into smaller subgroups.
- This is because it is assumed that individuals within a subgroup are individuals whose claims have been standardised in connection with occurring differences, e.g. the nature of damages sustained thereby in the same event is different (…). The requirement for standardisation of cash claims is dictated by a drive at streamlining group proceedings. Hence, the claim standardisation procedure may not be performed in a random manner, it must take the shared circumstances of the case into consideration.
- The Act on Pursuing Claims in Group Proceedings does not determine whether group members’ consent to dispositive actions must be expressed before undertaking such action. It seems however, that lege non distinguente, such consent may be expressed either before undertaking of the act or thereafter.
- In cases where the individual members expressed the will to base their claims on two potential substantive law bases, not excluding the possibility of taking advantage of any of them, the group’s representative may alter the order in which to pursue the claims. The altering of the order of the claims to be pursued does not require the consent mentioned in Article 19 of the Act on Pursuing Claims in Group Proceedings.
- A charge of application of a defective construction of modify the claim may in no way be qualified as disqualifying the examination of the case in group proceedings.
- On the grounds of the Act on Pursuing Claims in Group Proceedings, it does not matter whether the claims arise from the same or from different legal relationships.
- At the stage of a preliminary examination, the court examines factual circumstances that are of key significance and common to all members of the group, without a detailed analysis of circumstances characteristic only of single or certain members of the group, but having no influence on the future legal assessment of claims pursued by claimants.
- In Article 2 of the Act on Pursuing Claims in Group Proceedings, there are no premises related to proportionality of the pursued claims.
- For group proceedings to be admissible, it is sufficient that the fundamental circumstances of the factual basis were similar in relation to a sufficient number of people. Whereas is not absolutely necessary for all circumstances constituting the factual basis of demands of individual group members to be common.
- A fundamental circumstance determining the admissibility of group proceedings is the identicalness of the mechanism declared by the claimant. The dissimilarity of standard terms applied to individual group members, the dissimilarity of the policyholder, as well as the dissimilarity of conditions under which the individual contracts may have been concluded, in light of the statement of claims remains of no significance for establishing, whether a valid insurance contract may have been concluded at all, as well as whether a mechanism setting the level of liquidation or handling fees dependent on the term of the contract is admissible at all.
- In a situation in which the composition of a initiating group is shaped outside of the court proceedings, the issues pertaining to the internal organisation of this group are not regulated by the provisions of the Act on Pursuing Claims in Group Proceedings. Such entities, cooperating with each other, autonomously determine the content of the statement of claims, including the content of the raised claims, circumstances substantiating them, as well as motions for the taking of evidence, but also choose the group’s representative.
- Declarations of group members on joining the group and consenting for a specific person to act in the capacity of the group representative are not a basis, autonomous and independent of the statement of claims, for the establishment of the object and admissibility of the group proceedings by the court; they are aimed at identifying members of the group.
- It is admissible to refer in declarations on joining the group to the statement of claims in the scope of the indication of demands, circumstances substantiating the demand, circumstances substantiating participation in the group, as well as evidence.
- 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 declaration subsequently attached to the statement of claims is of no significance.
- If declarations of members of the initiating group on joining the group is not attached to the statement of claims it should be considered as the lack of form of the statement of claims, rendering further examination of the case impossible and subject to removal under Article 130 par. 1 of the CCP CCP in conjunction with Article 24.1 of the Act on Pursuing Claims in Group Proceedings. Yet, such an omission does not constitute an immediate basis for the dismissal of the action.
- A demand for ceasing to infringe on the author’s economic rights of group members by banning the defendant from using a file exchange system in greater detail defined in the statement of claims, resulting in or leading to an infringement of author’s economic rights of group members fits within the objective scope of a group proceedings.
- There is no unambiguous bases to prejudge that preventative claims regulated in Article 439 of the CC may not at all be entertained in a group proceedings; this issue should be subject to the court’s assessment performed on the occasion of a content-related examination of the legitimacy of a class action.
- A class action is suitable for pursuing homogeneous claims, with their source in one type of a legal relationship, even if they gave rise to different substantive law claims.
- The requirement of the same or similar factual basis of the claim means that the factual basis of the claim does not have to be constituted by identical circumstances, but substantial similarity is considered to be sufficient.
- Non-indicating by the claimant when the author’s rights of group members were infringed upon and non-indicating the fact that the defendant was notified of the infringements by each of the group members does not in itself prejudge the lack of identity of the factual basis of group members’ claims.
- The need for the occurrence of a set of circumstances substantiating a specific legal relationship does not mean that the entirety of the case’s factual status is to be based exclusively on identical facts.
- In light of Article 12 of the Act on Pursuing Claims in Group Proceedings, the claimant was only obligated to indicate circumstances substantiating the demands, but not all the circumstances of the present case.
