Seite - 102 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 102 (again, type (b)), therefore reopening the issue of unfair terms would undermine legal certainty by contesting a ‘right in rem’ involving potential effects on third parties. This way of reasoning certainly is open to various kinds of criticism, and some potential aspects have already been mentioned in brackets above. The point we would like to make in this article, however, is that certain concepts – types of proceedings and types of rights – stand in between the problem and its solution, and it is rather the use of these concepts that decides the case than an analysis of the interests of the parties involved. It is almost neglected that there are still only two parties involved.67 (iii) Furthermore, both the AG and the Court point out that, according to their view, there are no indications that any terms of the mortgage contract could actually be ‘unfair’ within the meaning of the Directive.68 This is quite remarkable, for several reasons. The question of whether a particular contract term is actually unfair or not is not an issue for the CJEU to decide in the procedure at hand. Another reason is that the CJEU could arguably assume that the Spanish court actually had reasons for reviewing the potential unfairness of the contract. It should also be taken into account that in other European jurisdictions, already granting authority to the creditor (bank) to represent the debtor in private enforcement proceedings before the debt is due, is presumed to be void on account of circumventing the prohibition of the so-called lex commissoria.69 Moreover, a contract concluded by way of self-contracting – as the sale of the apartment in the present case where the bank both acted as the buyer and as the representative of the seller – would be considered void or voidable under many European legal systems.70 Spanish law may, however, be somewhat peculiar with regard to some of these aspects: According to Article 234 of the Mortgage Regulation,71 the mortgage agreement must, in order for the specific extra-judicial enforcement procedure used in the present case to be available, fix the value of the immovable property used as the auction value and determine the person who will sign the sales contract as the representative of the mortgagor, and that the creditor itself may be nominated for this purpose. Hence, contract terms just reflecting these statutory provisions will not fall within the scope of the UCTD due to its Article 1(2). However, there still could be other unfair terms in the 67 This is in fact observed both by the Court (CJEU, Case C-598/15 Banco Santander para. 45) and AG Wahl (Opinion on Case C-598/15 Banco Santander para. 83), but not considered relevant because it could also have happened that a third party had acquired ownership of the apartment. 68 See AG Wahl, Opinion on Case C-598/15 Banco Santander para. 71; CJEU, Case C-598/15 Banco Santander para. 48. 69 This view has been expressed, with regard to Austrian law, by OGH 5 Ob 295/01w ECLI:AT:OGH0002:2002:0050OB00295.01W.0115.000. Also, a clause granting the creditor discretion in determining the price for selling off collateral assets, or a term allowing to sell for a minimum price that is not the market value or at least the value to be achieved in a judicial enforcement procedure are considered void in that judgement. For a summary of related Austrian case law, see Wolfgang Faber, §§ 1371, 1372 ABGB, in ABGB PRAXISKOMMENTAR, BAND 6, at n. 9 (Michael Schwimann and Georg Kodek eds., 4th ed., 2016). – Rules prohibiting a so-called lex commissoria have spread from Roman law (see Codex Theodosianus 3, 2, 1) and are, with certain differences as to details, still very common in European jurisdictions; see, for instance: § 1229 BGB (Germany); § 37 Lag (1915:218) and § 37 Act 1929/228 (Sweden and Finland, respectively). Also French law originally contained a prohibition of pacte commissoire clauses (Article 2078 Cc, old version) but changed to a much more liberal approach in 2006 (Article 2348 Cc, present version). 70 See Article II.–6:109 DCFR and the national notes to this provision in PRINCIPLES, DEFINITION AND MODEL RULES OF EUROPEAN PRIVATE LAW – DRAFT COMMON FRAME OF REFERENCE (DCFR), FULL EDITION, VOLUME I 437–442 (Christian von Bar and Eric Clive eds., 2009). To what extent involving a public notary in the enforcement procedure (as has been the case under the respective Spanish rules in the Banco Santander case) may make a decisive difference can hardly be assessed without knowing the procedure in detail. 71 As quoted in CJEU, Case C-598/15 Banco Santander para. 14.