Seite - 97 - in Austrian Law Journal, Band 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 97 When the real problem has been defined, the next step of the functional approach is to identify everything that seems relevant to deal with the problem. In this step it is useful to be open to perspectives, ideas and reflections concerning the real problem. Norms of different kinds should be noted. There are different kinds of normative propositions that may be relevant: Acts of legislation are one kind of dictum with a normative value, and so are, of course, judges’ decisions. Another type of aspect that is potentially relevant for constructing a solution are assumptions about facts. Such assumptions are often used by lawyers, more or less consciously.41 These assumptions need to be noted when making functionalistic reflections. One particular category worth highlighting is the assumptions on the consequences of the different solutions that are contemplated. Further, different kinds of values can prove relevant for developing a solution. Legal foreseeability, protection of a weak party, freedom of contract, etc, are values that lawyers usually contemplate when dealing with a specific conflict of interests. Everything that is considered relevant should be turned into arguments in this third step. By doing so, the lawyer has a collection of arguments to use when taking the fourth step.42 When using this third step in the EU law context, it may turn out that some aspects and arguments, such as the assumptions mentioned above, are considered to be more relevant in one Member State than in others. This should, however, not be a problem in the identification procedure of the third step. What we describe here might seem to be a very complex procedure. However, it does not need to be complex. The complexity depends on the real problem at hand. If it is a so called clear question of law, there is little need to collect different arguments. However, where the real problem concerns the application of EU law in a national jurisdiction – and includes national legal thinking and national legal concepts that affect the interpretation of EU law43 – the real problem is typically 41 Such assumptions include, on a general level: assumptions on facts that are considered to form a ‘typical case’ (what does usually happen within a specific setting?); assumptions as to (typical or individual) interests and preferences of the parties; assumptions on how parties react to a course of events or a rule of law. On a more concrete level, an example concerning priority in bankruptcy would be assuming that every buyer and seller would always agree to give the buyer priority over the seller’s creditors, because this seems like the only rational choice from the perspective the particular lawyer takes (compare the assumption made by Håstad reflected in note 39). Another concrete assumption is that anti-assignment clauses are harmful to society. That assumption is then combined with the assumption that freedom of contract is not efficient when it comes to anti-assignment clauses. To give some more general examples: lawyers often make assumptions on risks and frequency. These assumptions are very common since they are necessary to understand the relevance and significance of a case, both where it has already been decided or where it still needs to be decided. The ‘floodgate’ argument is a specific variation of a risk assumption. Another specific risk assumption concerns the possibilities of circumventing a rule, something that lawyers tend to overestimate (which is an assumption that we make, in turn). Also, a very common category of assumptions concerns transactions costs; although lawyers might perceive such costs as something else and describe them in other terms (such as: a solution or rule that is ‘troublesome’, ‘unpractical’, ‘formalistic’, etc). Some of the assumptions that lawyers make are recounted between lawyers for the purpose of making lawyers understand how a rule or a norm can be legitimised. This can create what has been described as the ‘lawyers-created reality’, see HANS-PETTER GRAVER, DEN JURISTSKAPTE VIRKELIGHET (1986). 42 Which norms, facts and values are used by lawyers as arguments is of course a comprehensive issue. What we describe here could be developed further to a large extent, including various views on what lawyers do, and on the closely related topic of what law is. For one explanation, see CLAES MARTINSON, KREDITSÄKERHET I FAKTURAFORDRINGAR 49–105 (2002). See also ‘the fourth step’ below. 43 Such as in the present Banco Santander case, where the question essentially is how far the need of effectively applying EU consumer protection rules goes in relation to specific national rules of property law and civil procedure law.