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Poland

Author: Magdalena Tulibacka

I. Factsheet

Scope

Polish civil procedure provides for:

- A class action procedure of judicial nature (injunctive and compensatory) available for: consumer law, product liability, other tort liability cases (environmental protection law, competition law, IP law, labour law, as far as they concern tortious acts).

- A representative procedure of an administrative nature in consumer cases (injunctive).

Standing (Para. 4-7)

The class representative in Poland is the 'named party' who brings the case in his own name but on behalf of all class members. The Act limits the persons who can represent the class to two categories: class members and regional consumer ombudsmen.

Problems/Incompatibilities with Recommendation principles

A number of problems arise with regard to the regional consumer ombudsmen's potential role in class actions. They may not have the territorial and financial 'reach' necessary to organize and coordinate a class action.

The prerogatives of consumer ombudsmen, as specified by legislation, cover protection of consumer rights: they cannot represent persons who are not consumers.

Admissibility (Para. 8-9)

There are four distinct stages in the class action procedure. In the first stage, the court notifies the defendant of the lawsuit, and considers whether all the requirements have been met (at least ten people with claims of the same kind and with the same or similar factual basis) and thus whether the class action can be certified.

Information on Collective Redress (Para. 10-12, 35-37)

After the class certification decision is final, the court issues a statement on the commencement of the class action, including information that potential class members can join the class within a period specified by the court.

The Minister of Justice is also required to publish information about all class actions in which the statement on the commencement has been issued. However, no such information has been published yet by the Ministry.

Problems/Incompatibilities with Recommendation principles

No national registry.

Funding (Para. 14-16)

The Class Actions Act does not allow class representatives to obtain legal aid (which in Poland consists of legal assistance nominated by court and a waiver of court fees). The only types of available funding are: contingency fee agreements (success fees) with lawyers, and private funding.

In fact, most cases are self-funded privately by each class member.

Problems/Incompatibilities with Recommendation principles

Third party funding is not prohibited and unregulated.

Cross Border Cases (Para. 17-18)

The class action procedure is not limited in scope to domestic cases only. It is also not limited to Polish citizens.

Expedient procedures for injunctive orders (Para. 19)

The consumer injunctions procedure includes a possibility of an interim decision by the Head of UOKiK, if it is probable that the conduct, if continued, may cause serious and irrevocable damage to the collective interests of consumers. This interim relief decision can remain in force until the final decision in the case is taken.

Efficient enforcement of injunctive orders (Para. 20)

The Class Action Act does not contain specific rules on interim measures. The general rules from the Code of Civil Procedure applies. It is possible to obtain an 'execution title': needs to be duly authorised by a court in order to become an execution title that can be used by the execution authorities (including the bailiff).

Opt In/Opt Out (Para. 21-24)

The Polish Class Action procedure is an opt-in procedure.

The Class Action Act requires that class members who have monetary claims make them equal with the other class members. This standardisation requirement means that those who decided to opt in may sometimes need to modify their claims to make them equal with the others.

Problems/Incompatibilities with Recommendation principles

The standardisation requirement constitutes an exception from the principle of full compensation, and was criticized as unconstitutional. It causes many substantive and procedural problems for class members.

Collective ADR and Settlements (Para. 25-28)

Class Actions Act: the Court may refer the parties to mediation at any stage of the proceedings.

Code of Civil Procedure: the judge in the case should encourage the parties to settle the dispute.

The court will approve the settlement unless it is apparent from the circumstances that it is contrary to law or to the principles of social cooperation.

Costs (Para. 13)

Following the 'loser pays rule', the losing party covers the other party lawyers' fees only up to the tariff rate established by law. The law also provides a number of restrictions to the loser pays principle (if a party only partly won, unreasonable behaviour...).

(START-SUB-HEADING)Lawyers' Fees (Para. 29-30)

(END-SUB-HEADING)

The Class Actions Act allows lawyers to agree to a success fee as the only form of remuneration. It appears that in practice these types of agreements are extremely rare.

Problems/Incompatibilities with Recommendation principles

Contingency fees are allowed.

Prohibition of punitive damages (Para. 31)

No punitive damages are allowed under Polish civil law.

Collective Follow-on actions (Para 33-34)

The judgement concluding a declaratory relief class action may be used in further individual litigation or ADR proceedings seeking individual redress.

Interplay between injunctions and compensation across all sectors

The Polish Class Actions Act does not contain specific provisions on the types of remedies available. However article 2.3 of the Act provides that, in an action involving a monetary claim, the claim "may be limited" to the defendant's liability. Thus in theory, it is possible to seek injunction and compensation in one single claim. However in practice, the limitation in article 2.3 is applied because of the difficulties caused by the "standardisation" requirement. Class actions are limited to declaratory relief, and the decision is then used as a base for individual compensation.

Problems/Incompatibilities with Recommendation principles

For compensatory claims, the standardisation requirement means reducing claim amounts to the level of the person whose damages are the lowest in the class. Lawyers representing class members report that they advise them to limit the claim to declaratory relief only, to then use the injunction as a base for individual compensatory claims.

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