Seite - 88 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 88 cannot rely on the provisions of the UCTD in order to prevent “the recognition and protection of the owner’s real rights over that property”.10 B. Our Aims and How the Banco Santander Case Will Serve Them We argue that this kind of conceptual legal reasoning – the bank acquires ownership, which has effect against everyone, therefore it must be invulnerable against consumer contract law rules for the sake of legal certainty – is too formal an approach and actually distracts from the real problems at hand. As legal researchers our aim in this article is not to show that the CJEU has rendered a wrong decision. There are additional facts and procedural implications (see section I.C. below) that may shed a different light on the overall result. Our concern is a methodological one, and we will use those facts of the Banco Santander case that have been stated above in order to show that it would be possible to achieve more balanced solutions by employing an alternative methodological approach. In the subsequent chapters, we will therefore introduce a so-called ‘functional approach’, which has been applied for decades in the property law systems of the Nordic European countries and in the United States. This will be done in a general way first and then be turned into a step-by-step instruction of how to apply such an approach to an individual case (chapter II.). We will then return to the Banco Santander case and try to demonstrate how this case – or rather the parts of the facts that we have identified as being relevant for our purposes stated above – can be analysed by applying this ‘functional approach’ step by step (chapter III.). By doing this, we hope that the potential benefits of making use of such an approach, not only in its original environment of property law but in particular when (national) property law clashes with EU consumer protection rules, which require to be applied effectively, will become apparent. This leads us to assert that applying a ‘functional approach’ actually offers an appropriate framework for determining how far this ‘principle of effectiveness’ arising from EU consumer contract law directives should reach in a particular case or, in other words, where to delimit its scope. Chapter IV., finally, carries the discussion one step further by drawing up the hypothesis that the EU law principle of effectiveness may actually require applying an approach that, at least, comes fairly close to the ‘functional approach’ we have by then presented and applied. This may provide an opportunity of actually sharpening the way of applying the principle of effectiveness itself to a certain extent. Chapter V. will add a few conclusive remarks. C. Further Aspects of the Case, and What We Do Not Aim at As mentioned above, we do not make use of the full set of facts and of all arguments presented in the CJEU judgement C-598/15 Banco Santander. In other words, we make use of a slightly adapted version of this case in order to make the – primarily methodological – points previously mentioned. In order to avoid possible misunderstandings, we will now clarify which aspects of the case we will not consider. (i) In particular, we will not touch upon the CJEU’s argument that, in contrast to the referring court’s submissions, the consumer apparently did have opportunities to defend herself, on the ground 10 CJEU, Case C-598/15 Banco Santander paras. 46 f. (quote from para. 47).