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Poland’s Class Actions in Their First Year: A Retrospect

September 27, 2011 @ 5:48 pm

This blog entry provides a retrospective view on the first year of Poland’s new class action law based on newly released information.  This past summer, in July 2011, Poland quietly celebrated the birth of class actions and greater access to justice within their legal system.  Poland’s new law on class actions became effective in July 2010.

 

The new class action law in Poland is known as the Ustawa o dochodzeniu roszczen w postepowaniu grupowym (“Act on Class Actions”) and it was passed on December 17, 2009, published in the Dziennik Ustaw (Journal of Laws) on January 18, 2010, no. 7, item 44 p. 1, and took effect six months later in July 2010.  What happened in the first year of the new law’s operation?

 

A Polish litigator, Jolanta Budzowska, confirms that 42 class action lawsuits were filed in Poland in the past year.  That might seem like a large number but, given Poland’s population of 38 million people, it is not so high.  In the United States, roughly 3,000 class actions are filed each year.  Even so, the number of class actions in Poland is proportionally higher than in Sweden (population 9 million).  During the first five years of Sweden’s new class action law, only 8 class actions were filed.[1]

 

Class actions have been filed at a more rapid pace in Poland than in Sweden.  Here’s how we’ve reached that conclusion.  If we multiply the number of Swedish class actions over five years (i.e., 8 of them) by four to reflect the larger proportion of Poland’s population (which is roughly 4 times bigger than Sweden’s population), then we would have expected the Poles to have filed 40 class action lawsuits over five years.  Instead, they filed 42 class actions in only one year.  This is a higher rate than in Sweden.  The reasons why could form the subject of a separate article or even a PhD thesis.

 

As to the particular class actions filed in Poland, Ms. Budzowska of Budzowska Fiutowski i Partnerzy kindly supplied RJ Gaudet & Associates LLC with some of the details about two class actions.  One of the class actions in Poland was filed by Poles who suffered damage as a result of a severe flood.  They sued the State for compensation.  A court in Kraków decided to accept the lawsuit for further recognition, so the case has not been dismissed.  As of yet, the court has not issued any substantive judgment.

 

In another class action, Poles who suffered damage due to the collapse of a roof at a trade hall in Katowice sued for compensation.  The court subsequently dismissed the lawsuit on the basis that the plaintiffs’ legal claims were not recognized under Poland’s class action procedure.

 

The Helsinki Foundation of Human Rights based in Warsaw, Poland recently prepared a report on class actions in Poland.  The report should be available, in the near future, on the Foundation’s website.  It is unclear whether the report will be available in English.  According to the report, the implementation of class action lawsuits did not result in any considerable revolution in the Polish legal system.  At the same time, according to the report, class actions are now viewed as an important step in improving access to court for the average Polish citizen.

 

Contrary to earlier concerns, Ms. Budzowska noted, Poland’s new class action law did not turn out to be risky for entrepreneurs. Rough estimates show that 70 percent of Poland’s class actions were filed against the State Treasury and government municipalities.  Only 30 percent of Poland’s class actions were filed against companies as defendants.

 

The Foundation’s report also showed that the new class action procedure has not been used as widely as expected prior to its becoming effective.  Poland’s Ministry of Justice provided information that by August 2011 there had been 42 class action lawsuits filed in Poland, as noted above.  Higher numbers were expected before the law went into effect.  Furthermore, most of these cases were rejected in a preliminary stage of court proceedings.

 

Class actions in Poland are permissible for product liability and torts.   Under Article 1 of the act regulating class action lawsuits in Poland, the act applies in cases involving consumer protection, liability for damage caused by dangerous products, and for torts, except that class actions cannot be brought for claims for protection of “personal interests” or “personal rights.”

 

The reason why most of the 42 class actions in Poland, so far, have been dismissed by courts is because they were based on an inadmissible cause of action.  Poles may not prosecute class actions to enforce “personal rights” or “personal interests” including non-pecuniary interests that are protected by law and enjoyed by individuals and legal persons.  The catalogue of personal interests/rights is open and it is not comprehensive, but individuals most frequently seek protection for the following “personal rights”:

  • one’s good name
  • human dignity
  • health; freedom
  • honor (dignity and reputation)
  • freedom of conscience
  • name or nickname
  • image
  • confidentiality of correspondence
  • scientific creativity
  • inventions and improvements
  • privacy
  • peace
  • worship

To be clear, none of these personal rights can form the basis for a class action in Poland.   As the lawyers in Poland gather more experience in their steep learning curve, they will surely file fewer suits over “personal interests” and learn how to prepare complaints that state viable claims under Poland’s new law.

 

This blog was written on the basis of research and advice provided by Ms. Budzowska, a lawyer based in Warsaw, Poland.  RJ Gaudet & Associates LLC works on class actions in the U.S., other legal matters in the U.S. and U.K., and coordinates research and litigation with lawyers in other jurisdictions.



[1] See Robert Gaudet, Jr., Turning a blind eye: the Commission’s rejection of opt-out class actions overlooks Swedish, Norwegian, Danish and Dutch experience, Eur. Competition L. Rev., Vol. 30, Issue 3 (2009) at p. 112.

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