Poland

Poland has one of the oldest class actions regimes, which is now over 16 years old. However, despite an initial drive of consumer class actions, these types of lawsuits never really took off properly due to different procedural hurdles. The underlying reason for adopting a class action regime was a construction disaster dating back to 2006, where the families of victims had to sue in individual lawsuits for compensation. Because of this and other academical debates, a new law on pursuing claims in group proceedings dated 17 December 2009, the Act on the Assertion of Claims in Group Proceedings (Ustawa o dochodzeniu roszczeń w postępowaniu grupowym) came into effect on 19 July 2010.

The new law established an opt-in model with a minimum group of 10 claimants, who could pursue claims in a limited number of matters such as contractual and tortious liability, liability for hazardous products or violation of mass consumer interests. There had to be a certification phase, where the court approved the constitution of the group prior to reviewing the merits of the claim. The law was amended over time in an effort to loosen up some of the strict requirements that it had imposed.

Concurrently an assignment model has also developed, where individual claims are being transferred to a Special Purpose Vehicle (SPV), usually a commercial company or an association, and then litigated with a single claimant in the proceedings. It became particularly popular in claims against banks as well as against property developers for apartment defects.

In 2024 Poland finally transposed the EU Representative Actions Directive 2020/1828 (RAD), which, apart from the existing regime, added a new type of group proceedings in the current statute. It still is an opt-in model, where the qualified entity (entered into a relevant register on a national or EU level) can lead the group.

According to publicly available statistics, class actions in Poland reached their peak in the mid-2010s of 41 lawsuits being filed per year and are currently at their lowest filing point. It does not mean that group proceedings stopped being used altogether, but in most instances, (especially in consumer cases against banks) the assignment model is now being used or claims are mass litigated. This means that each claimant has their own individual case in court, but there are very high numbers of such claims country-wide, in order to bypass the formal constraints of class actions.

Consumer class actions are the most prevalent ones. The biggest groups with several thousand claimants were formed in two class actions against banks that have offered Swiss Franc-denominated mortgages. However, many of them have recently filed their own individual claims for invalidating the mortgages, due to the fact that the proceedings have been pending for over 10 years now as the defendants have utilised every possible procedural defence. There are also class actions against the Treasury on behalf of different groups of entrepreneurs who were affected by COVID-19 lockdown regulations.

Despite the transposition of the directive on representative actions, so far only one entity has been entered at the national level in the register of authorised entities and no representative action class action has been filed.

The current class action regime is an opt-in model, where both civil and commercial claims can be brought, provided that the group members share the same or similar factual basis for the claims. Due to reasons outlined above in Section 1.2 (own class action regime and the transposition of the relevant EU directive) there are currently two class actions models: “traditional” class action proceedings and representative actions to determine the use of practices infringing the general interests of consumers. There can be several class actions or a mix of group proceedings and individual litigation regarding a particular claim going on concurrently.

Claims relating to the following can be subject to group proceedings in Poland as a class action:

• Hazardous product liability.
• Tort liability (including private enforcement of competition claims).
• Performance of contractual obligations.
• Unjust enrichment.
• Consumer protection.

Representative actions concern the determination of violation of the general interests of consumers, which means that there are only declaratory and a separate lawsuit for compensation has to be pursued.

The assignment model does not have a specific legal definition and it relies on existing provisions of law allowing for the assignment of claims.

The legal definition of class actions concerns the applicability of the 17 December 2009 Act (Act on the Assertion of Claims in Group Proceedings), which is provided in its Article 1 and regulates civil court proceedings in cases where claims of the same type are pursued by at least 10 persons, based on the same or similar factual grounds (class action).

Claims can be brought where the claimants share the same or similar factual basis. This means that the claims have to be derived from the same event or events that are similar to each other. For example, consumer actions against banks should be within the scope of similar factual basis as, even though each consumer had different contractual terms of the loan, the unfair terms in each of the contracts was the same (relating to the denomination clauses). In the past, this requirement used to be subject to much formality from the courts’ side as some have interpreted that similar circumstances ought to include facts influencing the amount of the claim.

Each case is initiated by filing a statement of claim, which does not have to be preceded by a formal pre-trial letter, unless it concerns an action filed by a qualified entity in relation to mass consumer rights violation. Ordinarily, a statement of claim has to contain inter alia the specification of the claim, the circumstances justifying the claim and supporting evidence. There are additional requirements to a statement of claim in class action proceedings such as a motion to certify the groups, a request on how much has to be awarded to each group individually (within each group or within subgroups the amount should be standardised, unless it is a consumer claim) or the requirement to provide information that the conditions for bringing a claim in the group procedure have been met. Declarations of group members on joining the class action must also be attached to the statement of claim as well as the agreements with the group representative and the lawyer indicating the method of remuneration. If the case is financed, the agreement should be disclosed as well, but only in representative actions.

Prior to evaluating the merits of the claim, the court has to first issue a certificate decision, which can be appealed against by both parties. After the certification decision, additional group members may join the proceedings after an announcement on the proceedings is published. Again, the court will issue a separate decision on the final composition of the group, which can be appealed. At this point, claimants may no longer withdraw from the lawsuit, meaning that even if they stop actively supporting it, they can still benefit from the final judgment. Only after going through the certification process as outlined above, the court will move on to evaluate the merits. This can be entirely avoided if claims are pursued on an assignment basis.

Ombudsmen acting as class representatives and qualified entities are exempt from any court fees. Ordinary class representatives are subject to a lower court fee than in individual proceedings (2% as opposed to 5%).

The court may order at the defendant’s request the payment of security for costs (Kaucja) if the defendant can prove that the claim is likely unfounded and that the absence of it would prevent or seriously impede the enforcement of a future costs award. The maximum amount of security is 20% of the dispute value or the amount claimed in the class action. This decision can be appealed by the claimant.

Third-Party Funding (TPF) is expressly permitted after the transposition of the Representative Actions Directive. Previously there was a widespread consensus that third-party funding was allowed in Poland as there were no regulations prohibiting it. In representative actions which are self-funded, each individual group member pays a participation fee of a maximum of PLN 2,000 (approximately EUR 480).

Lawyers are allowed to work on a partial success fee arrangement, provided that it does not exceed 20% of the amount awarded to the claimant.

While the average duration of cases is around five years in Poland (approximately three years in first instance and one year six months in second instance), class actions have typically lasted longer due to the certification phase and the fact that defendants challenge them on all possible grounds. It is worth noting that claims pursued on an assignment basis or individually have progressed faster than the same ones pursued in class actions.

Each class action requires a class representative who can be either a group member bringing in the lawsuit on their own behalf and on behalf of all group members or, one of the two designated ombudsmen. The first of them being a regional consumer ombudsman (Miejski/Powiatowy Rzecznik Konsumentów), the second being the Financial Ombudsman who can act in matters concerning consumer finance. There is already an established track record of both types of ombudsmen bringing in consumer class actions.

In representative actions only a qualified entity has standing to bring the claim. The claim must fall within scope of the statutory tasks of the qualified entity. The Head of the Competition and Consumer Protection Office is responsible for maintaining the register of domestic qualified entities. Currently there are only two entities on the list: one being the Financial Ombudsman, the other being a Foundation engaged inter alia in countering online gaming addictions. Qualified entities present in the EU Commission register can also bring representative actions in Poland.

The minimum size of the group is 10 claimants on an opt-in basis, where the claims are of the same kind, sharing the same or similar factual basis as regards ordinary class actions. This means that each claimant has to expressly sign up to the class action. Claimants can also join the class action after it passes the initial certification phase and an announcement was made.

Representative actions require a common legal ground for the claims instead of the factual basis requirement, which means that the underlying events for the claims do not have to be the same. There are no specific limitations as to the nationality of the claimants and if the wrongful consumer practice was EU-wide, representative actions can also be brought in Poland. It is possible, in representative actions, to first file for injunctive relief without having to build a particular group of claimants and have the court declare that a given practice infringes mass consumer interest, but then in order to have consumers receive compensation, a separate opt-in action would have to be filed.

Each class action is to be heard by a panel of three judges in a Regional Court (second-tier courts). There are no specific courts dedicated only to class actions.

After the statement of claim is received by the court, the court must review its admissibility. Therefore, the court will have to check whether the statutory requirements for a class action were met such as the type of the claim, minimum group size, and so on. If these are not met, then the court can reject a class action at the admissibility phase. If they are met, then the court concludes the first part of the certification process and after the order becomes final and binding, admissibility will not be revised again at a later stage of the proceedings.

The court then orders a publication of a notice about the class action, which must contain inter alia details of the proceedings and the parties involved, and can be published in different media (for example, the court’s website or national press). The announcement sets a timeline of not more than three months to join the proceedings (opt-in). After this, the court will issue a final order on group composition, which is also subject to an appeal.

The burden of proof as regards proper group composition lies on the claimant side, therefore particular group members may be required to submit additional evidence or explanations within a certain set deadline.

At the request of more than half of the group members the court is authorised to change the class representative or the qualified entity in a given lawsuit, without terminating the ongoing legal services agreement with the attorney acting in the case.

In representative actions the parties can rely on specific court orders for disclosure or production of evidence (wyjawienie/wydanie środka dowodowego). If the application is successful, then the court requests one of the parties or a third party to disclose or produce evidence which are relevant for the case. The party requesting disclosure has to provide why such disclosure is necessary and prove that it has a credible claim in the proceedings. The court may deny disclosure if the above prerequisites are not met or if the disclosure would be disproportionate. In order to assess the proportionality, the court has to take into account the legitimate interests of the parties and whether the application is not in fact an attempt at a fishing expedition.

If the disclosed evidence contains confidential information, then the court may restrict access to that information or impose restriction on, for example, copying it.

Failure to comply with a disclosure order may cause the court to treat certain facts as established in favour of the applicant. The court may also impose fines of up to PLN 50,000 and an additional PLN 10,000 on top of that for delay.

The exact remedies depend on the type of the claim brought forward. In general, the class representative can request damages, other declaratory remedies or restitution. The court can also establish the defendant’s liability going forward, so that individual claimants could claim damages more easily for any effects of a given event that were not covered at the moment the judgment was issued. Representative actions mostly concern declaratory relief, where the court would declare a given practice as infringing the general interests of consumers and be ordered to cease it.

Punitive damages are not available in any case and a damages award must correspond to the claimant’s actual detriment in terms of losses or lost benefits, which cannot be exceeded.

There are no specific mass settlement or ADR mechanisms in Polish class action procedures. Judges often encourage both sides to engage in settlement negotiations and some even provide their initial view on the case, but this is based on general principles of civil procedure. The court can, on general rules, refer a case to mediation. More than half of group members must agree to a settlement in order for it to be validly concluded. In cases concerning violation of consumer mass interests, particular group members may withdraw if they do not agree with the settlement. If a settlement is reached before a mediator, then it has to be approved by the court.

Settlements entered directly before the court (without the intermediation of a mediator) or concluded out of court are also permitted. They are allowed in all phases of the proceedings.

As the class action regime is an opt-in one, then the court will name each of the claimants in the judgment and award a specific amount to each group, the amount requested in the statement of claim (each group member can also be individually named in the appendix to the judgment with their particular award). The defendant will then be obliged to pay directly to every claimant, or to the attorney of the class representative if they are authorised to receive payout on behalf of the group. Distribution could then be done by the law firm. The parties can also agree on more sophisticated payout mechanisms in settlements.

If the claims were pursued in the assignment model, then the payout is always done directly to the SPV and then the SPV distributes the amounts to the claimants.

A final judgment naming all group members and awarding a specific amount to each group acts as an enforcement title, which is binding on all group members. Each member of a group can directly enforce their amount against the defendant.

Declaratory judgments must contain a deadline for the defendant to cease its practise and can impose an obligation to publish a specific statement. The court can impose a fine for not performing a declaratory judgment up to the amount of PLN 5 million and an additional PLN 50,000 per day, capped at another PLN 5 million.

Legal commentators have noticed the lack of change following the adoption of the representative actions; however, currently there are no advanced legislative actions aimed at remedying the situation. It is expected that group actions in Poland (not necessarily as class actions) will further develop due to the increase of litigation funding as Poland is an attractive market to funders due to the size of its economy.