In August, amendments to the Act of 24 July 2024 on Class Actions (an act amending this and certain other acts) came into force, transposing Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC into Polish law. Under this Directive, measures will be taken to enhance protection of collective interests of consumers through enabling qualified entities appointed by the Member States to file actions on the consumers’ behalf and to act for them in those cases.
Under the changes, a mechanism will be introduced for filing actions against traders in common courts (regional court). These will be domestic or, where there is a foreign dimension, cross-border class actions seeking a ruling that particular conduct infringes consumer rights and redress for this conduct. A qualified entity representing consumers will be able to bring claims against traders for infringing the collective interests of consumers and seek redress accordingly, doing so in an individual or class action.
Another major development is extension of the list of consumer protection issues subject to the Act on Class Actions to include infringement of collective interests of consumers and related claims for redress. Under the act, conduct infringing collective interests of consumers means any act or omission by a trader contrary to provisions of EU law referred to in Annex I of Directive 2020/1828, or to the related ancillary legislation, that infringes or may infringe collective interests of consumers.
The qualified entities able to file domestic or cross-border class actions will have to meet requirements regarding professionalism and independence, and thus be listed in a public register maintained by the President of the Office of Competition and Consumer Protection (UOKiK). They will also have to fulfill the requirements under art. 46a of the Competition and Consumer Protection Act or be registered as a qualified entity with the European Commission, in the case of cross-border class actions. To describe them in simple terms, these will be consumer organizations – legal persons with a statutory duty to protect consumer interests as required under provisions of EU law referred to in Annex I to Directive 2020/1828, and will be non-profit. The Financial Ombudsman will also be a qualified entity entitled to file actions of this kind, to the extent provided for in the act.
When filing class actions to seek redress for conduct infringing collective interests of consumers, the qualified entity will be able to pursue the case on its own behalf for the benefit of all members of a group, as the collective interests of consumers also include interests of a consumer group. Therefore, the qualified entity will be a party to the class action, while equally any redress obtained in court will benefit the members of the group.
In a class action for infringement of collective interests of consumers, the qualified entity will be able to seek a finding that certain conduct infringes collective interests of consumers, and an order that it be ceased, or a finding that the conduct was an infringement of collective interests of consumers and that the trader ceased the practice in question before the action was brought. The qualified entity can also request a ruling ordering the making of a single or multiple statements of the respective form and wording. In addition to claims of this kind, it will be possible to pursue claims for redress for conduct infringing collective interests of consumers.
It will be possible to cite the same legal grounds for class actions for infringement of collective interests of consumers as for related claims for redress. In a class action of this kind, the qualified entity will also not be required to prove loss suffered by consumers or that a trader is culpable.
If necessary for the purpose of protection of consumers, the President of UOKiK will be able to accede to a class action for infringement of collective interests of consumers and related redress at any stage of the proceedings. In such a case, the President of UOKiK will be subject to the relevant Civil Procedure Code provisions on public prosecutors.
Bringing a class action for infringement of collective interests of consumers and related redress will be conditional upon issuance of a notice prior to court proceedings, requesting that the trader cease the conduct in question that infringes the interests of consumers within 14 days of service of the notice.
Neither this notice nor any other correspondence from the qualified entity to the trader will be able to contain any other demands or claims, in particular for transfer of funds to them or to any other entity.
Under the amendment, the qualified entities may, but do not have to charge consumers fees for joining the group, when reasonable due to special considerations. The fee charged in this regard will be agreed with the group members, but the fees must be charged in proportion to the amount being sought, and the amendment specifies the upper limits for these fees. The fee may not exceed 5% of the value of a pursued pecuniary claim, and may not be higher than PLN 2000. In cases of claims of a non-pecuniary nature, the amount may not exceed PLN 1000. It will not be possible to charge consumers this fee if an action brought for redress due to infringement of collective interests of consumers is filed by the Financial Ombudsman. It will be possible to charge the fees in question only in actions brought for redress due to conduct infringing collective interests of consumers. If the filing is rejected on formal grounds, or there is a change to the qualified entity once the proceedings are in progress, the fee paid by members of the group is subject to interest at the statutory rate.
If the claim for redress for conduct infringing collective interests of consumers is successful, the court will state a time limit in the judgment for compliance with the judgment and order the defendant to notify the members of the group that the court has issued a binding and final judgment, and to notify them of the award made or settlement reached.
When a court rules favorably on a class action brought due to a trader infringing collective interests of consumers, in the judgment the court will rule that particular conduct of the defendant infringes collective interests of consumers, and order that the trader cease that conduct within a certain time, or state when the defendant ceased particular conduct that it found to be an infringement of the collective interests of consumers. Notwithstanding the above, when issuing the judgment, the court will be able to order the defendant to make a single or multiple statements of the respective form and wording, saying the trader infringed collective interests of consumers. The court will then set a time limit for complying with that order. If a final and binding judgment in a case regarding conduct infringing collective interests of consumers is not complied with within the required time, the court can fine the defendant up to PLN 5 000 000. There is an option for appeal against a court ruling imposing a fine to a court of second instance. Irrespective of this, a defendant can be forced to comply with a final and binding judgment finding that conduct infringes collective interests of consumers in a court ruling fining the defendant up to PLN 50 000 per day of failure to comply, but no more than PLN 50 000. A ruling imposing this type of fine is also appealable to a court of second instance.
These amendments introduce the vital rules on appointing qualified entitles, the register of these entities maintained by the President of UOKiK, and the reporting and notification obligations of these entities towards consumers and the President of UOKiK, and of the President of UOKiK towards the EC. The Act on Court Costs in Civil Law Cases has been amended and now provides that qualified entities are exempt from paying court costs in actions brought for conduct infringing collective interests of consumers and for redress in this regard.
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