The decision was changed by the decision of the Court of Appeals in Warsaw of 3rd June 2015, file ref. no. VI ACz 479/15.
- In order to speak of the sameness of the factual basis substantiating a possibility of pursuing claims in group proceedings, prerequisites for the emergence of claims should be common for all participants of the group.
- Diversification of the factual circumstances impacting the form and extent of the damage makes it impossible to establish the sameness of the factual basis. Such a diversification occurs if damage of each member of the group may have emerged in a different form – depending on the factual status related to a specific member of the group.
- If the claimants’ claims remain in no connection with the need to protect the consumer against a stronger participant of transactions, i.e. the claimant does not demand special protection due to his status as a consumer, but only seeks compensation in relation to the emergence of premises of compensatory liability, then such a case is not a consumer protection case, even if the claimants’ claim is contained in the model contract which may be subject to assessment in the scope of abusiveness.
- On the grounds of the Act on Pursuing Claims in Group Proceedings, it is of no significance whatsoever whether claims arise from the same or from different legal relationships. The provision of Article 1.1 of the Act provides only that claims should be based on the same or equal (similar) factual basis. In the case a diversification of the situation of the members of the group undoubtedly occurs in the scope of such circumstances indicated by the defendant as: different content and terms of insurance agreements, application of various standard contract terms, participation of various agents and persons performing agency activities, or various manners of realisation of substantial information obligations by parties brokering the conclusion of agreements. These circumstances may not, however, influence the assessment of homogeneity of the factual basis of the action. It should be emphasised that in the case being heard, the issue is the agreements concluded with the use of the same standard terms including a contentious clause concerning the insurer’s right to collect glaringly extortionate fees constituting the entirety or a part of the policy account value in the event of termination of the insurance agreement. In truth, each of the agreements included an identical provision specifying the value and the manner of calculating the policy redemption fee. Also, the circumstance that each member of the group could differently understand the meaning of the contentious clause is of no significance for the identicalness of the factual basis of the action.
- The consumer ombudsman was awarded the capacity to be a party in group proceedings directly in Article 4.1 in conjunction with Article 2.2 of the Act on Pursuing Claims in Group Proceedings, i.e. in consumer protection cases. The content of the quoted provisions corresponds in this scope with the content of Article 42.2 of the Act on Competition and Consumer Protection and Article 633 of the Code of Civil Procedure, under which in consumer protection cases, the district (municipal) consumer ombudsman may initiate actions on behalf of citizens. It is precisely the provisions of the procedural law nature that are decisive for the consumer ombudsman’s capacity to be a party in court proceedings and its position in litigation. The consumer ombudsman’s capacity to be a party in court proceedings is independent of the territorial scope of his or her operation. Group members may entrust the function of the group representative to a consumer ombudsman from any city or district in the territory of the state.
- An agreement concluded by a group representative – a district consumer ombudsman – with an attorney does not create any financial obligations on the part of the ombudsman or a local territorial authority that employs him or her. Hence, the conclusion of such an agreement did not require a separate consent on the part of the district treasurer or a person authorised thereby.
- The deposit is to serve the purpose of securing the defendant’s potential claim for the reimbursement of the costs of proceedings, in the event of difficulties in enforcing them from the group’s representative. The defendant bears the burden of proof that the non-establishment of a deposit for securing future claim for awarding the reimbursement of the costs of proceedings will render the execution thereof impossible or create substantial difficulties in the execution thereof.
- The commonality of the basis of pursued claims substantiates the possibility to join claims in a single group action. The entities in the group are characterised by a specific bond of a subjective and objective nature. The subjective bond pertains these members of the group who suffered damages as a result of the perpetrator’s single action. In a class action these persons pursue claims form a single entity (violator). In turn, subjective uniformity is related to the type of violation which results in pursuing claims jointly by the group becoming substantiated and possible. The bond existing between the group’s members must be based on the same or equal factual basis. Claims based on an common factual status are claims which share the same factual basis (a sensu stricto precondition) or claims sharing relevant factual circumstances (a sensu largo precondition). The indicated condition means that the legal or factual situation of the group’s members must be equal. Obviously, there may be insignificant differences between individual grounds of claims, however, it is necessary for the relevant factual circumstances to substantiate the demand common for all the claims.
- It does not belong to the Court to settle any content-related prerequisites of the claims at the present stage of the proceedings, nevertheless, the goal of the passed act (the Act on pursuing claims in group proceedings) is for the potential judgement to identically affect all participants of the group, that is to say that the situation where the statement of claims is allowed only towards a part of the group and it is dismissed in relation to the remaining members is inadmissible. Only differentiation in terms of the awarded amounts is admissible.
- The identity of the legal basis should allow the Court to generally uniformly assess claims of all members of the group.
- 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.
- The basis for assessing the consumer nature of claims has to be their source – contracts, in which the group members acted as consumers. Persons who signed – not in the scope of theirs business activity – contracts with the housing cooperative on building or buying rights to the flats and parking places – are consumers.
- The situation of group members should be identical at a glance and cannot require the hearing of evidence at the preliminary stage of the proceedings, when the general premises of group proceedings admissibility are examined. Claims of group members are not based on a common factual basis, if the hearing of evidence should be conducted differently in respect to some of as opposed to the other group members.
- Provisions concerning group proceedings emphasize the status of a group representative as a sui generis agent, who acts in his own name but in favour of the group. A representative is obliged to return everything to the group members that he or she gained for them while performing the duties of a group representative. If the group members incurred costs of professional legal representation in proceedings handled in favour of them, they are entitled to reimbursement if the judgement awarding costs to the claimant is issued.
- In group proceedings it is necessary to distinguish between claimant in the formal and substantive meaning. Although a court decides about the legitimacy of the substantive claims of the group or subgroup members, and by allowing the claims it indicates the amounts due to the group or subgroup members, and though judgement in that regard is an enforcement title, there is the only claimant in these proceedings, and it is the group representative. Although the group or subgroup members may be heard as parties, none of them are parties to the proceedings.
- Since group or subgroup members are not parties to group proceedings, it is impossible to reject a statement of claims in relation to them. The court’s prerogative to exclude someone from the group appears after the validation of decision on the admissibility of group proceedings, at the stage when new persons are joining to the case. Before that moment, the court is not entitled to modify the group’s composition.
- In group proceedings, it is inadmissible to partially reject a statement of claims, in relation to some group or subgroup members. The claim – in its procedural meaning – is one, adjudged with the claimant – the group representative. There are no grounds for division of this claim and for its partial rejection.
The decision was reversed by the decision of the Court of Appeals in Warsaw of 21st November 2014, file ref. no. VI ACz 4250/14.
- Members of the group, represented by the claimant, pursue only one type of claim, understood in the procedural sense as coming forth by all members of the group with the demand to grant a genetically identical form of legal protection, namely with an action for payment. Members of the group seek to be awarded a specific amount of money, coming forth against the defendant with a homogenous pecuniary claim. If they seek protection of property interests, due to the identity of the goods subject to protection, the homogeneity of the claim is supported also by its property nature.
- Claims based on an identical factual status are claims sharing the same factual basis (a sensu stricto precondition) or claims sharing relevant factual circumstances (a sensu largo precondition). Despite the fact that all of them were bound by contracts concluded individually with the defendant company, members of the group invoke the abusive nature of contractual clauses functioning in the model contracts used in the case of each client. In this sense, it was the same factual precondition, while individual differences resulting from the content of individual legal relationships of the group’s members do not result in “separation” of the factual basis of their claims. We deal with the same factual basis of the statement of claims (identity of factual circumstances) when there is a bond based on uniformity of the event being the source of the claim between the group’s members. Claims of each of the members are derived not so much from individual contracts, as from the fact that each of them – according to statements contained in the statement of claims – provided for such a manner of determination of the premises surface area required to set the price which, according to the group’s members, had the characteristics of an abusive clause.
- Cases pertaining to claims brought by consumers against entrepreneurs and arising against various bases will be cases for consumer protection. Consumer protection cases are cases arising against consumers’ claims towards the entrepreneur from lease agreements, sale agreements, credit or loan agreements, or carriage agreements. A case arising against agreements aimed at purchasing residential premises in the frames of an investment realised by the defendant in the capacity of a developer, with the aim of satisfying personal residential needs of the group’s members and their relatives, constitutes precisely a case on consumer rights protection.
- The principles for standardisation (equalisation) of claims of group’s members and formation of sub-groups consisted in such a specification of claims of individual members of the group in such a manner that to the nominally lowest claim of a given member (members) of the group the nominally closest in terms of the amount claim of another member (members) of the group is attached. Simultaneously, a table was attached to the statement of claims listing group’s members’ claims divided into individual sub-groups with the indication of a member (members) of the group and the claim they are entitled to, division into subgroups and indication of the claim they are entitled to and the claim equalised within the subgroup. The manner of standardisation of claims thus established is compliant with the criteria provided for in Article 2 of the Act.
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- The Act does not provide the time limit for correction of deficiencies pertaining to declarations on joining the group, providing only that after the lapse of a deadline set forth by the court, not shorter than one month from the date of serving the claimant membership-related charges, the court issues a decision on the composition of the group. This means that correction of deficiencies and misstatements related to accessing the group may be effectively performed after the lapse of the date set forth for joining the group itself. Adopting the contrary view would undermine the sense of conducting group proceedings, which may cover a larger number of individuals (group members) and in frames of which it is difficult to avoid certain oversights or deficiencies – especially in the scope of a declaration on joining the group and the need to collect and meticulously verify required documentation.
- At the stage of deciding on the group’s composition it is not the court’s task to adjudicate on the merits of the pursued claims.
- A consumer should benefit from the protection provided for in Articles 3851 – 3853 CC, regardless of the fact whether he is a party to a contract directly or a cessionary. The circumstance that certain group members joined a group on the grounds of an assignment agreement does not impact the sameness of the factual basis of the group proceedings, and therefore its admissibility.
- In the Court’s opinion, the members of the group are pursuing one type of claims, based on the same factual basis, since they derive them from the termination of their agreements for the heat supply, effective on 31st August 2013. Hence, they comply with the conditions mentioned in Article 1.1 of the Act of 17 December 2009 on Pursuing Claims in Group Proceedings.
The decision was reversed by the decision of the Court of Appeals in Katowice of 4th July 2014, file ref. no. I ACz 260/14.
