Seite - 91 - in Austrian Law Journal, Band 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 91 (iii) Finally, it should be clarified that we will, in the subsequent chapters, promote the ‘functional approach’ for the purposes of the present article; that is, reconciling national property law rules with the UCTD’s (or any other EU directive’s) principle of effectiveness. It is not the aim of this article to require national property law regimes to change towards a ‘functional approach’. For the purposes discussed in this article, a ‘functional approach’ can be applied in relation to any national property law regime. The following will focus on the role property law concepts shall play, or shall not play, when determining the operating distance of the principle of effectiveness in EU consumer contract law. II. A Functional Approach There are many ways of understanding how property law concepts affect our modes of thinking. This is a topic in several academic fields, including philosophy, anthropology, economics and law.24 The way we perceive our relationships and resources is to a large extent affected by the (various) concepts of ownership and the structures built around this concept. In this article we will approach the concept of ownership with what has been labelled the ‘functional approach’.25 We do so because we think that this functional approach can not only be applied to property law matters as such (the legal environment where much of this approach has been developed and applied) but also where issues of (national) property law clash with norms of EU law. Specifically, we consider it applicable where property law issues clash with the UCTD’s demand for an effective review of potentially unfair terms in consumer contracts. The functional approach has been built around the conception that concepts in and of themselves should only to a limited extent influence the understanding of a legal issue.26 Rather, the specific conflicts between different parties involved should be dealt with on their own merits, and concepts thereby assume the role of mere tools for communication. Hence we think that the functional approach can help to reveal instances in which the inconsiderate use of the ownership concept can affect legal thinking in ways that are potentially questionable from an EU law perspective. 24 See among numerous titles the anthologies PROPERTY RELATIONS: RENEWING THE ANTHROPOLOGICAL TRADITION (Chris M. Hann ed., 1998); MICHELE GRAZIADEI AND LIONEL SMITH, COMPARATIVE PROPERTY LAW: GLOBAL PERSPECTIVES (2017). Also, to just mention some of the classical works on property: JOHN LOCKE, TWO TREATISES OF GOVERNMENT (first published 1689, reprint 1947); GEORG WILHELM FRIEDRICH HEGEL, OUTLINES OF THE PHILOSOPHY OF RIGHT (T. M. Knox tr., 2008). 25 For the term ‘functional approach’ see, in the English language, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUMBIA LAW REVIEW 809 (1935); MARTIN LILJA, TRANSFER OF MOVABLE PROPERTY UNDER U.S. LAW DISCUSSED FROM A FUNCTIONAL PERSPECTIVE (2014); Claes Martinson, The Scandinavian Approach to Property Law, Described through Six Common Legal Concepts, 22 JURIDICA INTERNATIONAL 16 (2014); Claes Martinson, How Swedish Lawyers Think about ‘Ownership’ and ‘Transfer of Ownership’, in RULES FOR THE TRANSFER OF MOVABLES 69 (Wolfgang Faber and Birgitta Lurger eds., 2008); Wolfgang Faber, Scepticism about the Functional Approach from a Unitary Perspective, in RULES FOR THE TRANSFER OF MOVABLES 97 (Wolfgang Faber and Birgitta Lurger eds., 2008). In the Nordic legal discussion the word ‘pragmatism’ has also been used; see SVERRE BLANDHOL, NORDISK RETTSPRAGMATISME: SAVIGNY, ØRSTED OG SCHWEIGAARD OM VITENSKAP OG METODE (2005). Perhaps the approach should rather be described as the ‘functionalistic approach’ since this emphasises that it is a matter of describing a style of legal thinking, rather than describing that this way of thinking is actually more functional or better-working than other styles of legal thinking. 26 As the reader may notice, we have here turned to call it “the” functional approach, although in the headings of this section we prefer “a” functional approach. We do this since our ambition is not to promote a certain approach to legal thinking because of its background, or because we think specific functional thoughts should be used in a specific manner. Rather, what we would like to show is how legal thinking can be developed in a direction inspired by functional thoughts, with a skepticism towards too much emphasis on conceptual thinking.