- 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.
- The notion of a “claim” – used in Article 1 of the Act on Pursuing Claims in Group Proceedings – appears in the meaning of a procedural demand. The first precondition deciding on the admissibility of group proceedings is therefore for all the parties covered by the group action to request for the granting of legal protection in the same form.
- The homogeneity of claims in group proceedings is, ultimately, decided by the factual relationship occurring between the demands raised. A broad understanding of the term of a “claim”, used in Article 1 of the Act on Pursuing Claims in Group Proceedings is subject to narrowing by complying with the requirement for the same or equal factual basis.
- At the stage of the examination of the admissibility of a group action, the court does not assess whether the claim of a member of the group is legitimate or not, but only whether the claims of the group members are based on the same or equal factual basis. The court assesses whether the claims fulfil the conditions for filing a group action in terms of the factual circumstances being indicated.
- In assessing the admissibility of hearing the case in group proceedings, the court should not so much examine whether claims of 10 parties, a mandatory minimum, comply with the requirements, but whether the claims of all persons as members of the group are indeed based on the same/equal factual basis.
- The court may not assume that a group action is admissible in relation to an abstract group, the personal composition of which would be established only at a later stage of the proceedings. During the first phase of the group proceedings, the court must establish the admissibility of a group action in relation to a group, whereby this group is comprised of specific parties, whose claims fulfil preconditions for hearing the case in a group proceedings.
- The representative forms a group at the stage of filing a statement of claims, and it is the representative who should examine whether each of the members of the group indicated by him or her fulfils the requirements of Article 1.1 of the Act on Pursuing Claims in Group Proceedings. The negative consequences of omissions in this scope, resulting in rejection of the statement of claims, rest with the claimant. The burden of proving a group member’s membership rests with the claimant.
- The representative should perform a preliminary selection of parties intending to join the group. The representative may demand such parties to present explanations and evidence. If the representative finds that a given party’s claim does not qualify to be examined in group proceedings, there are no grounds to force the representative to cover such a party’s claim by the group action. The correctness of establishment of the composition of the group is verified by the court in a decision on the admissibility of group proceedings.
- Evidentiary proceedings are conducted before the court both during the first (concerning admissibility of group proceedings) and the second stage of group proceedings (on establishment of the composition of the group).
- The question of the statute of limitations constitutes a substantive question subject to examination only after ascertaining that a group action is admissible. The court decides on the legitimacy of the claims being pursued only during the third, content-related stage of the group proceedings. At the stage of examination of admissibility of group proceedings, the court may not entertain substantive law issues at all.
- Receiving the consent of all members of the group to standardisation of claims (lump sum compensation) by the court constitutes a necessary condition for initiating group proceedings. In a situation where, due to the circumstances of the case a lump sum determination of the value of compensation is impossible, the legislator allows for the possibility of forming subgroups. Subgroups are comprised of parties whose claims, due to the occurring differences, are standardised in smaller groups. We are dealing with such a situation in the event where the court establishes a different nature of damages sustained by members of the group, or differing value of damage.
- Assuming that alternative demands are admissible in group proceedings, the court hearing the case would have to examine whether it has been demonstrated that the claim covered by an alternative demand is based on the same/equal factual basis, already at the stage of assessment of the admissibility of group proceedings.
- The subject of each proceedings is the claim, in the formal meaning, and it is its contents that indicate what the claimant party demands from the opposing party as well as what form of the protection of their rights they are expecting to obtain by means of seeking redress. It is obvious that the content of the procedural claim will be dependent on the legal situation of the claimant who makes (specifies) this claim and who will strive towards implementing the relevant substantive law norm (or possibly several norms) in the proceedings that will be pending before the court.
- The requirement of the identical or similar (equal) factual basis does not mean the requirement for all of the elements of the factual grounds in the case of each of the claims to be identical or equal. It is sufficient for a common element to exist in the scope of the factual circumstances, constituting a basis for the claim of the group members, meaning the event that caused damage.
- The opinion that with the assessment as to whether we are dealing with the homogeneity of the claims the criteria from Article 72 para 1 and 2 of the CCP (Polish Code of Civil Procedure) should be applied is incorrect. The premise of homogeneity is more broadly understood on the grounds of the act than against the background of procedural joint participation (Article 72 para 1 point 2 of the CCP), which requires the claims to be based on an identical factual and legal basis, in opposition to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), which does not place such a condition.
- In a group proceedings, participation of many entities on the defendant side is admissible. This is not in contradiction either with the aim of the Act, or its specific provisions. In the event of many parties appear on the side of the defendant, the provisions of the CCP on joint participation apply, and in group proceedings, the claims pursued by several persons jointly liable for torts, are indicated as an example.
The decision was set aside with the decision of the Court of Appeals in Warsaw of 18th February 2014, file ref. no. I ACz 22/14. The thesis questioned by the Court of Appeals in Warsaw have been italicized.
- Disruption of gaining profits from the conducted business activity is undoubtedly a case of violating one’s personal rights. The location of the claim aimed at personal right’s protection and also whether this is an absolute protection (without fault) – as in the case of means of protection stipulated directly in Article 24 of the Civil Code, or relative – as in the case of means of legal protection resulting from the perpetration of a tort, is without any meaning.
- In the scope of formal requirements, the legislator finally accepted the procedural limitations of group actions through the imposition of the requirement of the same or similar (equal) factual basis of the claims, as well as the standardization of the claims of each member of the group, in consideration of the common circumstances of the case.
- The literature presents an opinion that the same legal basis of the claim (identity of the factual circumstances) takes place when there is a bond between the members of the group, based on the unity of a legal event. This would mean that the requirement of the same factual basis would be fulfilled through the indication by the claimant, of the event in the form of the broadcasting forbidden advertisements. Such an opinion cannot be agreed with. Such a factual basis of the claims would be sufficient in the event in which the claimant would pursue only the establishment of compensatory liability. However, in the present case, the claimant is not only pursing the establishment of compensation liability, but also further consequences, resulting from this fact, meaning the compensation for damages. And in such a case, apart from the event causing damage, the circumstances substantiating the extent of the damage and the causal link between the event and the damage should be indicated, as not every relationship is relevant but only an adequate causal relationship. i.e. covering the normal consequences of a given reason.
- The aim of the group proceedings is enabling access to court as well as speeding up the proceedings with the significant lowering of their costs, while the group action alone is to become the instrument enabling fast and effective pursuit of claims by consumers as well as by entrepreneurs.
- Ultimately, the homogeneity of this type of claims in this type of proceedings is decided by the factual relationship occurring between them. It should be emphasised that it is precisely this relationship that eliminates claims of different type from those raised.
- The factual basis of the claims must be the same or equal. This means that the broad understanding of the notion of the “claim”, used in Article 1, is subject to narrowing at the fulfilment of the factual link requirement. Claims raised by group members must, therefore, be based on the same (identical factual basis) or similar (identity of the factual basis) factual basis. They should arise from one event (the same event) or events similar to one another. Which consists of facts substantiating the existence of specific legal relationships. The factual link will occur when it comes to certain events of tortious nature in the situation when it is possible to abstract factual circumstances common for the entire group, at the basis of which there are factual bases of each individual claim of the group member.
- The factual basis of the group proceedings is a set of factual circumstances substantiating the examination of the case in group proceedings. They consist, in principle, only of facts substantiating the existence of specific legal relationships. Hence, in the event of tortious liability, homogeneity of the factual basis would be preserved if all factual circumstances constituting the basis of the defendant’s liability would be materialised in relation to all members of the group, while the character and type of individual claims, their value or maturity, would belong to circumstances not impacting the homogenity of the factual basis of the group proceedings, and thus – its admissibility.
- Assessment of homogenity of the factual basis must have been performed ad casum, while the scope of the judge’s assessment in the case of this precondition was relatively broad. For only seemingly does this premise have an objectivised nature. In truth, the decision on admissibility of the group proceedings was dependent on the circumstances of the case and adopted criteria for assessment of the factual basis’ sameness as well as the scope of circumstances adopted as the common basis for group members’ claims.
- The notion of common circumstances of the case, although presently occurring only in Article 2 section 1 of the Act, may not be completely ignored and constitutes a certain point of reference also in the context of interpretation of Article 1 section 1 of the Act.
- The formal requirements indicated in Article 12 of the Act of 17 December 2009 on pursuing claims in group proceedings of a declaration on joining to the group applies also to those persons who are initially acceding to this group.
- The legislator recognized that the condition for the initiation of group proceedings is (apart from the fulfillment of the subjective premise) the pursuit of claims fulfilling the premises indicated in Article 1 section 1 of the Act. The pursued claims have to be homogeneous, meaning of one type, and based on the common factual basis. The claims based on the common factual basis are claims, the basis of which constitute the same factual basis (premise in the narrow sense) or claims, whose significant factual circumstances are similar (equal, premise in the wide sense). Of course, differences can exist between the individual grounds of the claims, however, it is necessary for the significant factual circumstances to substantiate the common demands for all of the claims.
- The institution of securing the costs of the group proceedings is of a non-mandatory nature. The possibility of obligating the claimant to its submission lies within the competence of the court. The deposit serves the protection of the interests of the defendant against unsubstantiated statements of claims, when the claimant’s asset status does not give a warranty of their covering. The payment of a court fee on the statement of claims by the claimant, and also a significant number of persons joining to the group seems to prejudge the lack of legitimacy of the demand derived from Article 8 section 1 of the Act.
- The term “claim” used in the Act (Polish Act on pursuing claims in group proceedings) is used in the meaning of the procedural request (demand). “Claim asserted in a court proceedings” in other words refers to the subject of the proceedings: for establishment, adjudication, shaping the legal relationship or right. Its specification is connected with the division of actions into, respectively: action for the establishment of the existence or the non-existence of the legal relationship or law, action for adjudication of the consideration, on the shaping of a legal relationship or right. The claimant (in the statement of claims) and the group members (in declarations on joining the group) filed pecuniary claims (compensatory claims for the payment of a specified amount reflecting the value of the damage incurred) towards the defendants. In the case of such claims, as indicated above, demanding solely the establishment of the defendant’s liability, which the claimant and the group members are claiming for, is admissible. Hence the premise of pursuing claims of one type is fulfilled.
- In the event of tort claims, claims resulting from one event (possibly a complex event) or from many events of the same type, should first and foremost be treated as those based on the same or similar (equal) factual basis.
- According to Article 1 section 1 of the Act (Polish Act on pursuing claims in group proceedings), the claims pursued in group proceedings should be of one type, which means, that the members of the group are pursuing granting of legal protection in the same form – they have to submit the same request (demand).
- We are dealing with “the same” (identical) factual basis of the pursued claims when the identicalness of the factual circumstances takes place, and the legal protection is pursued by the participants of one event, meaning that there is a link based on the fact that the same event caused the damage. “Similar” (equal) factual basis means a similarity between the individual factual statuses. We are dealing with “equal” factual status when many similar factual events take place, i.e. using the services of one bank, taking one medication, becoming poisoned by the same food product, abusive clauses in loan and developer agreements, etc. The basic set of facts constituting the basis of the occurrence of the disputed legal relationship and a specific claim have to be analogous. The notion of “factual basis” should be understood as a specified set of elements of the factual status, which are invoked in order to prove the statement of claims.
- The factual basis in the meaning of Article 1 section 1 of the Act is only the basic (initial) set of facts substantiating the claim and discrepancies as to the facts substantiating only the amount of the claim are not an obstacle in recognizing the group proceedings as admissible. Nevertheless, application of the construction of group proceedings is substantiated when there is a set of preconditions which allow for uniform subjective qualification of the illegality of the causal action which resulted in the damage, the compensation of which is the subject of the claim. The essence of group proceedings is the commonality, manifesting itself in the demand which must be typical (common) for all of the claims, the factual or legal situation of the group members must be equal.
- On the one hand the legislator does not require the identicalness of all of the factual elements, as this would highly narrow the scope of the application of the act, however, on the other hand, the group proceedings would not fulfill their objective – improvement in the effectiveness of proceedings in cases characterized by a significant level of the individuality of the facts and the characteristics of the individual group members. Group proceedings fulfill their role when we are dealing with “typicalness” or “representativeness” of the claim towards all of the group members. The condition of “typicalness” is fulfilled when a legal or factual situation of the group members is equal. Of course, slight differences can exist between the individual grounds of the claims, however, it is necessary for the material factual circumstances to substantiate the common request for all of the claims.
- In introducing the Act on pursuing claims in group proceedings the legislator bore in mind the introduction of such court proceedings which would at the same time protect the interests of many entities in single proceedings and eliminate the need to conduct parallel proceedings and repeating actions, which can be carried out on a one time basis. This referred to the comprehensive and quick settlement of the dispute. Taking this functional interpretation of the Act into account, the Court is of the opinion that the pursuit of claims on the basis of the provisions of this act is possible in the case in which there is a relationship between the claims covered under the statement of claims, which results in the fact that the joint ruling on them is profitable, that after the forming of the group’s composition the joint ruling and adjudication in the scope of all of the group members will be possible.
