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The year in review

Summarising the eighth year of the functioning of the Act in the Polish legal system, it should be noted that it was a relatively effective year with regard to resolving group cases previously initiated, at various stages of proceedings. On the other hand, 2018 was also a year in which a decrease in the number of group proceedings initiated before a Polish court was seen. In 2017, there were 17 cases in total (i.e., almost half that in each previous year between 2010 and 2016).

As far as the most interesting decisions are concerned, it is worth pointing out the following. For the sake of clarity they are categorised into phases of group proceedings (for an explanation about phases of group proceedings, see comments in Section III).

i Decisions on cases heard in phase I in 2018Group proceedings related to Volkswagengate

At the end of 2018, it was finally determined that the class action related to Volkswagengate would not be examined according to the Act. The Polish courts held that they had no jurisdiction to hear a case concerning liability for a dangerous product in the form of Volskwagen diesel-powered vehicles manufactured in Germany and equipped with software that manipulates the readings of the exhaust emissions, even if they were purchased in Poland. The court of first instance (and this position was fully accepted by the court of the second instance) stated that jurisdiction should be established according to Article 7(2) Brussels Bis (i.e., it should be determined by the place in which the event resulting in damages occurred). The claimant pursued its claim on the basis of the liability for a dangerous product or tort liability (i.e., the manufacture of defective cars and the issue of certificates of conformity for them). Both of these events took place in Germany. Thus, the place in which the event resulting in damages occurred, as the courts established, is the territory of Germany. Polish courts have referred to the achievements of the Court of Justice of the European Union (CJEU), in particular to the judgment of the CJEU of 16 January 2014, C-45/13, Andreas Kainz v. Pantherwerke AG, where it was assumed that in the case of an action to determine the producer's liability for a dangerous product, the place of the event giving rise to damages is the place in which the product was manufactured. Therefore, the statement of claims was finally rejected on formal grounds.

The proceedings in this case were initiated by the statement of claim of 29 September 2016. The claimant – a representative of the group – requested the total amount of 1,485,000 zlotys. This amount encompasses damages for two subgroups. In the first subgroup, consisting of 45 members, each member should have received 30,000 zlotys and in the second subgroup, consisting of nine members, each member should have received 15,000 zlotys.

The further group proceedings of the polisolokaty – savings insurance policies

In 2018, further group proceedings instituted against insurance companies in connection with insurance agreements, the poliskolokaty, were also accepted for examination.

The class action against TU Europa No. 2 in case file No. XXIV C 709/15, by decision of the Regional Court in Warsaw, 24 Civil Division dated 1 February 2018, was accepted. This decision became final following the dismissal of the defendant's complaint by decision of the Court of Appeals in Warsaw, 1 Civil Division, of 4 October 2018, case file No. I ACz 861/18.

By the statement of claims (lawsuit) issued on 15 July 2015, the representative seeks a declaration that there is no insurance relationship between the defendant and the members of the group and that all insurance premiums paid by the members of the group are to be reimbursed or, alternatively (in the event that the above claims are not taken into account), that the provisions relating to the liquidation and administrative fee (management fee) are prohibited contractual clauses and, as such, are not binding on the members of the group and, therefore, that all amounts collected as administrative fees (management fees) by the defendant are to be paid to the group members (as benefits not due to the defendant).

Case of Border Guard officers against the State Treasury

In spring 2018, the Supreme Court once again expressed its opinion on the prerequisites for the admissibility of group proceedings on the occasion of the case of a group of Border Guard officers against the State Treasury.

The Supreme Court once again presented a more liberal approach than the courts of a lower instance.

In the judgment of 17 April 2018, case file No. II PK 44/17, the Supreme Court decided to examine the case in group proceedings. The class action proceedings initiated by a group of Border Guard officers for payment of compensation for damages arising in connection with the non-adjustment of remuneration of group members in the years 2009–2014 were previously rejected by the court of the lower instance. The statement of claims (lawsuit) filed in April 2015 had previously been rejected in a final manner on the basis of the lack of homogeneity of claims. However, the Supreme Court explained that the premise of the homogeneity of pecuniary claims of group members referred to in Article 1. 1 of the Act should refer to the same type as regards the subject matter of the claim. This premise should not be construed according to the method of claim calculation (claims for compensation are homogeneous regardless of how compensation has been calculated).

ii Phase II

It is also worth noting that in several group proceedings in 2018, decisions on the composition of the group were issued.

iii Decisions on cases pending in Phase III of 2018

In 2018, at least four group proceedings, one of the first initiated on the ground of Act, were resolved as to the merits.

Group proceedings against the administrator of the website

Thus, in March 2016 the Regional Court in Gdańsk issued a judgment that takes full consideration of the action brought by a group of consumers – users of the website against entrepreneurs – administrators or owners of the website. The Court established the invalidity of Usenet service contracts concluded by 48 members of I subgroup with the defendants and ordered the defendants to pay jointly and severally the amount of 94.80 zlotys to each of the 48 members of I subgroup. This amount should be paid as reimbursement of the undue benefit. For the other subgroups, the court invalidated the service contracts.

The lawsuit initiating the proceedings in this case was filed in March 2012. After the positive certification in 2013, a total of 589 members of the group joined the case in the second phase. The case was suspended for some time, and finally ended in 2018. The defendant has not filed appeal against the decision at the first instance.

Group proceedings related to the disaster of the exhibition hall

Also in April 2018, the proceeding related to the construction disaster of the exhibition hall located in Chorzów, ended in the first instance. The proceedings were initiated by a group of persons close to the victims of this catastrophe. Apart from this, the event (which took place in 2006) was an impulse for the Polish legislator in the scope of work on the Act.

The case underwent a long certification phase. Thanks to the landmark judgment of the Supreme Court of 28 January 2015, case file No. I CSK 533/14, the case was recognised as to its merits, by the judgment of 23 April 2018 taken by the Regional Court in Warsaw, case file No. II C 127/15.

The court determined that the State Treasury represented by the President of Chorzów and the District Building Control Inspector in Chorzów is liable in connection with the collapse of the exhibition hall in Chorzów on 28 January 2006 for claims for compensation for significant deterioration in the life situation, owing to the death of the closest family members.

The case was related to a construction disaster that took place on 28 January 2006. During the exhibition of racing pigeons, the roof of the hall of Katowice International Fair in Chorzów collapsed. During the catastrophe there were about 700 people in the hall. As a result, 65 people were killed, including relatives of the group. The group proceedings covered the claims provided in Article 446, Section 3 in conjunction with Article 434 of the Civil Code (CC) and the claims provided in Article 446, Section 3 in conjunction with Article 417 of the CC. The source of claims is the same factual event (a specified construction disaster), being the cause of death of a member of the immediate family of group members.

The evidence in the case showed that the building's faulty structure (the roof and, more precisely, the insufficient strength and stability of the hall structure), overloaded with snow and ice lying on the roof, was the cause of the building's collapse. The State Treasury at the time of the catastrophe was an independent possessor of an exhibition hall that collapsed, hence it was liable under Article 434 of the CC on a risk basis for damage resulting from the collapse of buildings. According to the court opinion there were no exemption circumstances (excluding its liability). As for the second State Treasury organisational unit – the District Building Control Inspector in Chorzów – the court found it liable for the consequences of the disaster. The District Building Control Inspector in Chorzów was held liable owing to failure to fulfil statutory obligations arising under the Polish construction law.

The discussed judgment has already become legally binding – the appeal filed by the defendant was dismissed by the judgment of the Court of Appeals in Warsaw of 23 January 2019, case file. No. V ACa 630/18.

A final determination judgment shall constitute a prejudice for the members of the group to pursue individual claims for damages against the defendant, unless an amicable settlement is reached between the victims and the State Treasury.

Case against GENERALI TU insurance company in connection with polisolokaty

In 2018, the group proceeding brought by a group of clients – represented by the District Consumer Ombudsman in Pruszkowski District – against Generali Życie Towarzystwo Ubezpieczeń SA related to the polisolokaty – savings insurance policies ended legally.

The Court of Appeals in Warsaw dismissed the defendant's appeal against the judgment of the Regional Court in Warsaw, 24 Civil Division of 10 May 2017, case file No. XXIV C 554/14.

The judgment of the court of first instance adjudged, in favour of individual group members (divided into subgroups). The court granted reimbursement of the amounts unduly collected from group members by the defendant on the basis of prohibited contractual clauses in life insurance contracts, 'buyout fees' (collected in the event of termination of investment life insurance contracts).

The statement of claims in this case was filed in 2014. The court found that all 165 members of the group had concluded life insurance contracts with insurance capital funds with the defendant.

The court assumed that the provisions regulating the redemption fee/fee for the total redemption of the policy value do not specify the main benefits of the parties in insurance agreements concluded by the parties with insurance capital funds. The provisions governing the redemption fee/fee for the total redemption of the policy value do not affect the essence of the legal transaction itself. The elimination of this fee from the content of the contract will not render it unenforceable. At the same time, the court assumed that these provisions were contrary to good practices. Having found that the clause relating to the redemption fee is abusive, the general terms and conditions of the agreement and the general provisions on obligations are inapplicable.

The court found that members of the group should be reimbursed on the basis of the provisions on undue performance – Article 410 of the CC.

Customers of Duo Express (consumers) against Getin Noble Bank SA

In autumn 2018, the case against Getin Noble Bank related to the actions of its agent was also finally concluded.

In its judgment of 29 April 2015, the court of first instance, case file No. I C 709/12, awarded the amount of 5,665,040 zlotys with statutory interest from 4 March 2013 until the date of payment, determining the amounts due to individual group members allocated to 44 subgroups. Court of Appeals in Gdańsk, 5 Civil Division, by judgment of 26 September 2018, case file No. V ACa 722/15 dismissed the defendant's appeal.

The case concerned claims for damages of group members who suffered damage as a result of fraud committed by the agent Duo Express, a franchisee of the defendant bank, while performing activities entrusted to it by the bank in franchise outlets of the bank that resulted in the fact that the members of the group, entrusting Duo Express with their savings, remained convinced that they concluded agreements on savings products with the defendant bank, and not with Duo Express as its franchisee. The court found that the bank is liable for damages suffered by the claimant and members of the group on the basis of the provisions of Articles 429 and 415 of the CC (i.e., the bank is liable in tort).

The defendant bank entrusted the performance of certain banking activities to an agent by concluding an agency agreement with him of 15 October 2008. The agreement included the performance of certain banking activities in the name and on behalf of the defendant. The agent, on the other hand, also concluded agreements in the outlets operated by the agent, to which the defendant bank was not a party, designated as an investment loan. Following the conclusion of those agreements, the claimant and the members of the group suffered damages and the damages were functionally linked to the activities entrusted to the defendant bank agent by the defendant bank on the basis of an agency agreement. The court assumed that the agent of the defendant bank caused damage to the claimant and members of the group while performing the activities entrusted to it under the agency agreement. Such activities were functionally related to the banking activities performed.

The agent intertwined prohibited activities with banking activities performed under the agreement. As a result, the injured parties believed that the agreement concluded by them concerned a banking product. The court found that the defendant failed to prove the circumstances excluding his liability (i.e., that he took due care when selecting an agent).

In 2018, the provision concerning the limitation period was amended (see Section III.i: Limitation).