Class actions in Poland

  1.  Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. Are punitive or exemplary damages recoverable?
  9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12.  Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. Do you have specialist courts for these procedures?
  14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. Can arbitration clauses lawfully contain class action waivers?
  17. Are contingency fee agreements permissible?
  18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

The Act of 17 December 2009 on the Assertion of Claims in Group Proceedings ("AGP") allows for group proceedings to be brought in Poland on an “opt-in” basis. Pursuant to Article 1 of the AGP, the Act applies to civil court proceedings in cases where claims are pursued by at least ten claimants and are based on the same factual basis. 

The group is formed over two stages. Before bringing a claim, the group representative assembles the group with the same claims or based on the same factual basis. If the court decides that the class proceedings are admissible, it makes an announcement and sets a deadline for all persons to join the group who have claims against the defendant based on this factual basis.

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

There is no procedure under Polish law for an opt-out model for group proceedings.

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Although a group representative brings a claim forward, pursuant to Article 4(4) of the AGP an advocate or legal adviser represents a claimant in a group proceeding, unless the claimant is a lawyer or legal adviser.

Only members of the group or the consumer ombudsmen can act as a group representative. 

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

The Minister of Justice keeps a list of group proceedings that are in progress or completed. The list is available in the Public Information Bulletin of the Minister of Justice and can be found at the following link: https://www.gov.pl/web/sprawiedliwosc/wykaz-postepowan-grupowych. The list includes information on group proceedings initiated since 1 June 2017. Unfortunately, the list of group proceedings is rarely updated, so as of 30 November 2020, there are only seven group proceedings on the list.

Since 2010, the Supreme Court has issued nine judgments based on the AGP regulations. In addition, according to information from legal databases, the circuit courts have issued 80 judgments in group proceedings.

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

Pursuant to Article 1.2 of the AGP, only the following types of claims can be brought as group proceedings: product liability claims; claims in tort; liability for non-performance or improper performance of contractual obligations; and unjust enrichment. In the case of consumer protection claims, proceedings may also concern other matters such as seeking injunctive relief.

6. What types of relief are available, i.e., damages and/or injunctive relief? 

A judgment in a group proceeding providing a monetary award must specify the amount to be paid in damages to each member of the group or subgroup. An extract from the judgment or a judgment with an extract from the list of members of the group or sub-group annexed to the judgment, indicating in particular the amount of the award due to him, shall be enforceable. 

In group proceedings, the court may grant temporary injunctions and, during the proceedings, can specify the manner of performing the contract.

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

The AGP regulations do not modify the prerequisites for proving damage; hence, general rules will apply in group proceedings. In a claim, it will be necessary to justify the exact amount of damages claimed and, depending on the nature of the defendant's liability, provide evidence to support the group members' claims. 

As a rule, the court may not award a higher amount in damages than the loss suffered.

8. Are punitive or exemplary damages recoverable?

Polish law does not provide for the possibility of asserting punitive or exemplary damages.

9. Will domestic law need to be changed to comply with the Representative Action Directive?

Following the adoption of the Representative Action Directive (“Directive”), domestic law needs to be changed. 

Currently, proceedings for practices that infringe the collective interests of consumers are initiated only ex officio by the President of the Office for Competition and Consumer Protection and to some extent by the Financial Ombudsman. However, the Directive allows for representative actions to be brought at the request of qualified entities designated by EU member states. The Directive also makes it possible to seek simultaneous assertion of unlawful actions and compensation for damage. This means that the principles for initiating proceedings in Poland must be changed.

Unlike the AGP, the Directive does not specify that there be a lower limit on the value of a claim to be brought in a group proceeding. 

The Directive also regulates issues not previously regulated in Polish law concerning the financing of an authorised entity and the determination of the circumstances in which such an entity may be financed by a third party. 

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

Pursuant to the AGP, more than half of the members of the group have to agree on the terms of a settlement. However, a settlement may be declared inadmissible by the court if the circumstances of the case indicate that it is contrary to the law or social morals, seeks to circumvent the law, or grossly prejudices the interests of the members of the group.

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

There are no specific regulations concerning the jurisdiction of Polish courts in group proceedings. Therefore, general provisions will apply.

There are no territorial restrictions for group members in Polish law.

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

For claims to be brought as group proceedings, they must be pursued by at least ten claimants and must be based on the same factual basis. 

Group proceedings in cases for monetary claims are admissible only if the amount for each member of the group's claim has been standardised by equating the amount of the claim asserted by the members of the group or sub-group. The unification of the claim amounts may take place in subgroups of at least two people.

13. Do you have specialist courts for these procedures?

There are no courts in Poland that specialise in group proceedings. The courts of first instance that handle group proceedings are circuit courts.

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

There are no special procedures under Polish law that would change the scope of discovery or disclosure in group proceedings as compared to unitary proceedings. In accordance with the general rules, the parties may apply to the court to require the other party to submit certain documents. However, a party obliged to submit documents may waive this obligation in certain situations.

The only exceptions are actions for damages for infringement of competition law under Directive 2014/104, as implemented into Polish law, and for damages under IP law. 

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

There are no special rules in the appeal procedure against judgments delivered as part of group proceedings. Similarly, there are no special regulations for the Supreme Court to hear cassation appeals issued in such proceedings.

16. Can arbitration clauses lawfully contain class action waivers?

Polish courts will not recognise a class action waiver in an arbitration clause.

17. Are contingency fee agreements permissible?

Contingency fee clauses are not permitted under Polish law. The parties may apply success fee clauses for the remuneration of their authorised attorney, but only as an additional and independent element of remuneration.

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

As a rule, the losing party is obliged to reimburse the successful party, at its request, for the costs of bringing or defending the claim.  The law determines the maximum amount of costs that can be reimbursed in this way.

There are limited situations in which the court can depart from this principle. For example, if only part of a claim is successful, the costs will be mutually waived or split accordingly. Reimbursement of costs shall be payable to the defendant if he accepted the application at the first procedural step, and the claimant did not call on him to satisfy the claim before filing the lawsuit.

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

In Poland, the issue of financing disputes is not regulated. 

See the Overview of the Representative Actions Directive >>

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