- In order to initiate group proceedings it is enough if basic circumstances of the case constituting the factual basis of the claim, are equal towards a sufficient number of parties. The analogy of all circumstances constituting the factual basis of claims of individual group members is not an absolute requirement..
- In order to assess the admissibility of the statement of claim it is not important that the requests are derived from five formally different standard templates. The fundamental circumstance determining admissibility of group proceedings is the identicalness of the mechanism introduced by all these templates.
- The differences in templates towards individual group members as well as the difference in circumstances of conclusion of each of the contracts, or differences in knowledge and life experience of each member of the group may not preclude an assumption that claims arte fit to be examined in group proceedings. That is simply because they have been based not on the same factual basis but on an equal factual basis in the meaning of Article 1 (1) of the Act on Pursuing Claims in Group Proceedings.
- The question of legal interest from Article 189 CCP is of significance at assessment of the validity of the statement of claims, it constitutes a premise for the claim to be allowed, therefore, it may not be anticipated for the needs of the decision on the very admissibility of group proceedings.
Court of Appeals in Warsaw 1st Civil Division, in the following ruling bench:
Presiding Judge: Marzena Konsek-Bitkowska, Court of Appeals Judge (rapporteur)
Judges: Zbigniew Cendrowski, Court of Appeals Judge; Dorota Markiewicz, Court of Appeals Judge
having examined on 10th March 2016 in Warsaw at the hearing in camera the case filed by the Municipal Consumer Ombudsman in S. acting as a group representative of the group consisting of (names of group members) against (…) joint stock company in W. for ascertainment, following the Claimant’s complaint against the decision of the Regional Court in Warsaw dated 23rd October 2015, file ref. no. II C 269/15
decides to:
- correct the obvious mistake in the introduction of the contested decision as follows: to indicated indicate 23rd October 2015 as the date of issuance of the decision
- amend the contested decision to hear the case in group proceedings.
- In the stage of certification, the premises of admissibility of the group proceedings, which are assessed by the court, are limited to the issues provided for in Article 1.1 and 1.2 of the Act on Pursuing Claims in Group Proceedings: the quantity of the group (at least 10 people), homogeneity of the claims, the same or similar factual basis and objective ability of being examined in group proceedings. The assessment of the substantive reasonableness of the claims is not recognized at the stage of the admissibility of the group action, is beyond the scope of the assessment of the admissibility, as this takes place in the subsequent stage of proceedings.
- The phrase “similar (equal) factual basis” means the situation in which the claims are based on similar events. This term corresponds to the same factual basis in the concept of formal joint participation.
- The dissimilarities between the standards applicable to each member of the group, as well as dissimilarities between the circumstances in which particular contracts were concluded, do not exclude the possibility that the precondition of the same or similar factual basis will be satisfied, as the main circumstance which determines the admissibility of the group proceedings is the identical mechanism introduced by formally independent standards declared by the claimant. This fact is also not changed by the different amounts of the contributions and the frequency of their payment or different amounts of the fees of redemption applicable to particular group members. Members of the group base their claims on the same provision, that is on the contract clause, subject to which the defendant may charge the fees of redemption, which were (in the members’ opinion) grossly excessive and restricted the possibility of the termination of the contract. The claims are not based on the same factual basis, but on similar (equal) factual basis within the meaning of Article 1.1 of the Act on Pursuing Claims in Group Proceedings.
The Court of Appeals in Warsaw 1st Civil Division in the following ruling bench:
Bogdan Świerczakowski, Court of Appeals Judge (rapporteur)
Robert Obrębski, Court of Appeals Judge
Beata Byszewska, Court of Appeals Judge
having examined, on 24th February 2016 in Warsaw, at the hearing in camera, the case filed by the Municipal Consumer Ombudsman in S. against (…) S.A. with its registered office in W. for the establishment of the defendant’s liability following the defendant’s complaint against the decision of the Regional Court in Warsaw of 13th October 2015, file ref. no. XXIV C 500/14,
hereby decides to:
- dismiss of the complaint,
- entrust the Regional Court in Warsaw to decide on the costs of the proceedings relating to the complaint in the final ruling.
- For assessing whether consumers’ claims are based on a similar factual basis, the potential disposal to other individuals by consumers who previously purchased tickets, is of no significance. This is because all consumers indicated in the statement of claims as buyers of the tickets – parties to an obligational relationship binding them with the defendants, are entitled to the claims for payment on the grounds of previously purchased tickets. The factual basis of pursued claims is therefore similar and it results from a single event, i.e. purchasing of tickets and participation in a sports event organised by the defendant.
- The entry in an appropriate register of entrepreneurs is of no significance for assessing whether a given entity conducts a business activity. Neither it is of significance for such an assessment the allocation of income obtained from the above-mentioned activity. The fact that the defendant operates in the legal form of an association does in no way exclude a possibility of conducting a business activity, particularly one that generates profit.
The decision has been amended by the decision of the Court of Appeals in Warsaw, 1st Civil Division of 10th March 2016, file ref. no. I ACz 1586/15.
- The members of the group are linked with one another by a subjective and objective bond. The subjective bond refers to the individuals in the group who have been injured as a result of the perpetrator’s single action. In group proceedings these individuals pursue claims from one entity (infringer). On the other hand, the objective bond is related to the type of violation which makes it legitimate and possible to simultaneously pursue the claim by the group. The bond existing between the group members must be based on the same or similar factual basis. Therefore, it is of key importance to determine the homogeneity of the claims of individual members of the group which allows them to be covered by a class action.
- As the pursued claims need to be homogenous, one should determine whether these are substantive or procedural claims. Nevertheless, it can be clearly assumed that the claims pursued in group proceedings constitute a procedural claim. This homogeneity is expressed by the fact that all the Claimants are seeking the awarding of a specific performance, determination or creation of a legal relationship or a right. Members of the group therefore need to submit the same demand – for the awarding of a performance, for determining the existence or non-existence of a specific right or legal relationship, for establishing a legal relationship or a right.
- In group proceedings, in the case of multiple entities on the part of the defendant, the provisions of the CCP on joint participation are applicable.
The Court of Appeals in Warsaw, 1st Civil Division in the following ruling bench:
Presiding Judge: Przemysław Kurzawa, Court of Appeals Judge
Judges: Marzena Miąskiewicz, Court of Appeals Judge, Maciej Dobrzyński, Court of Appeals Judge
having examined on 30th December 2015 in Warsaw at the hearing in camera the case filed by P.K. against the State Treasury – Minister of Family, Labour and Social Policy for determination following the State Treasury’s – Minister of Labour and Social Policy and Social Security in W. complaint against the decision of the Regional Court in Warsaw of 4th March 2015, file ref. no. I C 599/14
hereby decides to:
- dismiss both complaints;
- leave the decision on the costs of the appeal proceedings to be rendered at District Court in Warsaw’s discretion in the judgment concluding the proceedings.
- The factual basis of an action in group proceedings is a conglomerate of statements indicated by a group’s representative in the substantiation of the statement of claims, from which the claim of each of the group members expressed therein is derived. A similar basis of claims pursued in an action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
- Conclusion by each of the members of their own, i.e. not the same as the others, agreement with the defendant excludes the existence of the same factual basis of the claim pursued in the action.
- A similar basis of claims pursued in the action may be spoken of when the basic factual circumstances comprising the basis of the demand in the statement of claims are equal.
- On the basis of the Act on Pursuing Claims in Group Proceedings, it is of no significance whether claims arise from the same or different legal relationships.
- In the case being considered, the issue is the agreements concluded with the use of the same standard terms including a contentious clause defining the principles for determination of the value of amounts to be paid to members of the group and amounts to be collected by the defendant from the group members’ funds originating from redemption of fund participation units purchased with the regular premiums in the event of termination of the life insurance policy agreements with the capital fund for reasons other than death. The template designation itself, as invoked by the defendant, does not prejudge the different content of individual provisions. Indeed, each of the agreements did contain the same provision defining the value and the manner of determination of amounts to be collected by the defendant.
- In the case under consideration no such ‘circumstances of conclusion of the agreement’ are presented which would substantiate the need to take evidence from testimony of all group members. In the statement of claims the claimant does not invoke the circumstance of conclusion by the group members of insurance agreements as a result of their having been misled or hoaxed which would substantiate the taking of the above-mentioned evidence in order to examine the motivating process or group members’ individual characteristics such as education, occupation, life experience, and similar circumstances. This is because a relevant circumstance in the case being considered is the very fact that the group members concluded with the defendant agreements containing contentious clauses which for the defendant constitute a basis for collecting the amounts previously paid in advance by the members of the group and which, according to the said members, are glaringly extortionate.
- The issue of the injured parties’ contribution in causing the damage cannot be classified as a factual circumstance, which is to justify the existence of premises of the defendant’s liability for damages.
- Even if the examination of the contribution plea in the further stage of proceedings could lead to establishing and assessing the factual circumstances, individualised and different for each group member, it may not be regarded as not proving, by the claimant, of the fulfilment of the premise contained in Article 1 of the Act on Pursuing Claims in Group Proceedings. If the basis for assessment of the admissibility of group proceeding is the content of the statement of claims, then the view on the inadmissibility of group proceedings cannot be based on the lack of the identity of circumstances, which were not included in the statement of claims, as they are not the basis of the pursued claim, but the basis of opponent’s defence.
- The requirement of the identical factual basis of claim does not mean that all the circumstances have to be identical for each group member, because in any case – even when there is the same basis of claim – there are individual circumstances, relative for particular group members. The requirement of an identical factual basis is fulfilled when facts justifying the existence of a particular legal relation, which is the basis of the claims, are identical for all group members.
- The assessment as to whether one can hold the defendant liable for damage compensation on the basis of circumstances indicated by the claimant, is not the part of the examination of the group proceedings’ admissibility, but is the result of examining the merits of the case. The lack of circumstances on the basis of which one can hold the defendant liable should lead to the claim’s dismissal.
- The examination of the case as group proceedings does not mean that the verdict will be identical in relation to all group members.
- The only criterion of affiliation to the particular subgroup is the amount of the pecuniary claim pursued in the group proceedings, established on the basis of a common factual basis. In view that the damage, the compensation of which is pursued by group members, is the loss of invested financial resources, it is possible to recognize the amount of the damage as the common factual basis, within the meaning of Article 2 of the Act on Pursuing Claims in Group Proceedings, and on the basis of such criterion to equalize the claims in subgroups.
- 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.
- Claims based on an identical factual basis are claims based on the same factual basis (a sensu stricto precondition) or claims with common factual circumstances (a sensu largo precondition). Obviously, there may be slight differences between the individual factual bases of the individual claims, however, the substantial factual circumstances being common for all the claims is required.
- A key element determining the admissibility of group proceedings may be abusive clauses existing in contracts of group members and introducing an identical mechanism consisting in the bank’s discretion in establishing the borrower’s debt amount.
- The assessment of the admissibility of examining the case in group proceedings depends on the factual circumstances provided by the claimant as a basis of the claim, and 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.
- For the needs of preliminary assessment of the action’s admissibility, the court is bound by the circumstances presented by the claimant. The assessment of the nature of the case occurs in the frames of the claim indicated by the claimant and the factual circumstances indicated thereby, which elements specify the legal relationship occurring between the parties and shape the nature of the case. The grounds for rejecting the statement of claims may not be constituted by circumstances pertaining to the legal interest or the right of action (mandatory joint participation) on the claimant’s side, the assessment of which at the stage of examination of the class action is premature.
- The formulation of a potential claim with the observance of, first and foremost, the premises from Article 1 of the Act on Pursuing Claims in Group Proceedings, in terms of principle does not exclude an examination of the case in group proceedings. The potential claim in group proceedings must comply with the criterion of homogeneity. In other words, all potential claims also must be claims of the same type, based on an identical or the similar factual basis. In a group proceedings, the issuance of a judgement containing rulings on different types of claims in relation to individual members of the group is not possible.
- If the manner of formulation of a class action demand prevents initiating proceedings in the case, the court should apply the measures provided for in Article 130 § 1 of the Polish Code of Civil Procedure, and after the service of the copy of the statement of claims – in Article 177 § 1.6 of the Polish Code of Civil Procedure.
- In a consumer protection case where it turns out that one or more of the group members are not consumers, the statement of claims may be rejected only in relation to non-consumers and recognised in group proceedings in relation to the remaining members of the group, provided there are at least ten of them.
- Even if some group members conduct business activity, it is still necessary to assess the capacity in which they concluded contracts with the claimant. This is because only this relationship is assessed in examination of admissibility for the case to be heard in group proceedings and a member of the group must have the status of a consumer only in the relationship with the defendant.
The decision was changed by the decision of the Court of Appeals in Warsaw 6th Civil Division of 23rd March 2016, file ref. no. I ACz 2269/15.
- The factual basis of claim in group proceedings consist in the complex of statements indicated by the group representative in the substantiation of the action from which the claims of each group members involved in the action are derived.
- The same factual basis of the statement of claims (identical factual circumstances) takes occurs when there is a bond between the group members based on the unity of the damage-causing event. For example, the same factual basis of the claims will occur when members of the group are consumers who concluded individual agreements with a particular entrepreneur on the grounds of the same contract template.
- The equal factual basis of claims occurs when a number of similar events occurred, e. g. a number of similar contracts were concluded with one entrepreneur (similarity of events). Whereby, what is relevant, the Court should always examine whether and to what extent the issues common for whole group dominate over the issues which are strictly individual.
- With respect to claims based on tort, the claims may be considered as based on the same or equal factual basis if they result from the same type of event (which is a tort in that case).
The Regional Court in Warsaw 25th Civil Division in the following ruling bench:
Presiding Judge: Tomasz Gal, Regional Court Judge (rapporteur)
Judges: Anna Błażejczyk, Regional Court Judge; Monika Włodarczyk, Regional Court Judge
having examined on 7th September 2015 in Warsaw at the hearing in the class action filed by R.D. – the group representative against the State Treasury – General Prosecutor, Regional Public Prosecutor in G. and District Public Prosecutor G.-W. in G. for payment,
hereby decides to:
- reject the statement of claims,
- award from R.D. – he group representative in favor of the State Treasury – General Counsel to the Treasury the amount of PLN 7,200.00 (seven thousands two hundred zloty 00/100) as a reimbursement for the legal representation.
- The circumstance that individual awarding claims will require an examination of individual factual circumstances characteristic of individual members of the group is of no relevance for the assessment of the precondition of identity or homogeneity of the claim provided for in Article 1.1 of the Act on Pursuing Claims in Group Proceedings. A group proceedings is also admissible when the precondition in the form of damage and damage’s value depends on individual factual circumstances concerning individual members of the group.
- An assessment of admissibility of examining the case in group proceedings depends on the factual circumstances presented by the claimant as the basis of the claim and it is not conditioned by proving the existence of the claim. Neither is it dependent on the defendant’s allegations or the manner of defence employed by the defendant. It is only the proceedings before the court that are to demonstrate whether the claims included in the statement of claims have a basis in the provisions of substantive law.
- The legislator did not specify the criteria to be followed in equalization of claims within subgroups and in assessing the correctness of the performed equalization, limiting itself only to a general indication that a equalization should be performed with taking the common circumstances of the case into account.
- In assessing the admissibility of examining the case in group proceedings, a group member must have the status of a consumer only in the relationship with the defendant.
