Seite - 101 - in Austrian Law Journal, Band 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 101 out in the case at hand, “is to give effect to a property right which has been duly registered”56 (implying the premise that the registration was in fact a legitimate one, which is, however, not self- evident given that the acquisition of ownership under Spanish law generally requires a valid ‘title’ in the sense of a valid underlying obligation57). This leads AG Wahl to “think it is relatively clear that Directive 93/13 cannot be held to be applicable to the procedure at issue [i.e., a procedure type (b)], which relates to the verification of rights in rem with a view to the exercise of those rights, and not to the performance of a contract concluded between a consumer and a seller or supplier”.58 The Court adopts this procedural distinction in shorter words.59 On the level of substantive law, a parallel distinction is drawn between (a) the mortgage contract between bank and consumer and the security right based on this contract; and (b) the bank’s ‘right of ownership’ acquired as a result of the forced sale.60 In a similar pattern, as has been observed in the procedural context above, this leads AG Wahl to conclude that, “since the contract supposedly containing the term presumed to be unfair … was exhausted by the definitive transfer of the immovable property …, it no longer appears relevant to examine the need to prevent or suppress the incorporation of such a term”61 (disregarding, again, the possibility that under a ‘causal’ transfer system any defect in the underlying contract could prevent the transfer from taking place62). Further, as the AG puts it, to authorise the court to examine the fairness of terms of the mortgage agreement “would involve calling into question … a right in rem”63 which could have been acquired by “a completely different entity”.64 Accordingly, in the view of AG Wahl, “it would appear to be contrary to the principle of legal certainty and security of property rights to call acquired rights of ownership into question, on the basis of effectiveness of Directive 93/13, when there is no longer any question of striking out an unfair term in a contract between a seller or supplier and a consumer which continues to produce effects.”65 The CJEU follows this assessment quite closely.66 This is a rather formal and concept-oriented way of reasoning: The procedure at hand is of a specific category – type (b), not type (a) –, therefore reviewing the potential unfairness of a contract term is not ‘appropriate’. The character of the right involved – ownership – is of a specific nature 56 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 59. 57 For references regarding the ‘causal’ transfer approach, see supra note 19. With regard to the distinction between a ‘summary’ procedure and a final ‘plenary’ procedure in Spanish procedural law, please note the clarifications provided in section I.C. sub (ii) above. In the present case, the ‘title’ could be flawed by unfair contract terms or violation of general rules of representation. For the latter aspect, see sections III.A. sub (iii) and III.C.2. sub (iii) and (iv) below. 58 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 68. 59 Cf. CJEU, Case C-598/15 Banco Santander paras. 39–44. 60 This becomes evident from a combined reading of AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 73–75 and 82–84. See also paras. 58–68 (where the distinction regarding substantive law runs parallel to the procedural distinction discussed above). 61 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 75. For the view that “the mortgage agreement is extinguished, together with the mortgage itself”, upon the conclusion of the enforcement procedure, see also ibid., para. 65. 62 Again, see section I.C. sub (ii) and note 19 above. 63 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 82. 64 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 83. 65 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 84. 66 CJEU, Case C-598/15 Banco Santander para. 45, quoted supra at note 9.