Seite - 106 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 106 is that a judicial review of potentially unfair terms is not excluded, the additional question arises whether the court is merely allowed to act of its own motion or whether it is even under a duty to do so.78 For both situations, the additional fact is submitted that, so far, neither did a court have to start such an assessment ex officio, nor did the consumer have a possibility to effectively initiate such an investigation.79 In other words, the real issue is whether there should be a limitation of the possibilities to examine the unfairness of a consumer’s credit agreement, and whether this limit should be set precisely at the time when the creditor-bank acquires the apartment. If so, the effect would be equivalent to a rule of limitation (in the sense of a limitation of actions). This would be a quite relevant aspect, as will become apparent when we will involve the possible consequences of a decision in our discussion.80 A decision, especially a preliminary ruling of the CJEU, becomes a future norm to be followed in other situations as well, and the decision is therefore a decision upon what norm should be created for cases like the one at hand. Contrasting this way of forming the question with the analysis carried out by the AG and the CJEU, we can now also see what is not the issue under a functional approach: Actual or potential effects on third parties are not relevant for the formulation of the question because no third party is actually involved in the conflict. Nor are the concepts of ‘ownership’ or of ‘rights in rem’ needed to coin the question. The aspects that the stage of enforcement proceedings has already been left, and that the bank has acquired the apartment in the course of this enforcement, are mentioned, but it is not considered important for formulating the question whether the course of events involved procedures of type (a) or of type (b) as referred to in the previous section.81 An interesting remark concerning the move to clarify the ‘real issue’ is that the CJEU regularly does something similar. When the question referred by the national court does not offer a possibility to reply to in a meaningful way, the CJEU has often rephrased the question. The Court then uses a phrase like “in order to give a useful answer” to indicate that the judges have identified a more useful question to reply upon.82 It would, therefore, not be a radical step for the CJEU to include a technique like the shaping of the ‘real issue’ into its everyday work. C. How to Argue the Issue Functionally We will now move on to step 3 as described in section II.B. The third step is to identify everything that is relevant to construct a solution and to turn all these aspects into arguments. We have limited the number of arguments that we present to what we think is enough to illustrate our point. 78 These variations extend the question originally referred by the national court to several possible situations, in order to deliver broader guidance for the interpretation of Articles 6(1) and 7 UCTD. 79 Since the issue, in EU law terms, ultimately is delimiting the scope of the principle of effectiveness, a clarification like this has to be added. 80 See, in particular, section III.C.2. sub (iii) and (iv) below. 81 See section III.A. sub (ii). Note that under ‘real’ Spanish law, there actually may be a difference whether the procedure is ‘summary’ (where defences are restricted and a defect in the acquisition process cannot be raised) or ‘plenary’ (where the legitimacy of the acquisition of property rights may effectively be called into question). See section I.C. sub (ii) above. 82 See, e.g., CJEU, Case C-122/17 David Smith v Patrick Meade and others ECLI:EU:C:2018:631 paras. 34–36; Case C- 25/15 István Balogh ECLI:EU:C:2016:423 paras. 28–33; AG Szpunar, Opinion on Case C-135/15 Hellenic Republic v Grigorios Nikiforidis ECLI:EU:C:2016:281 paras. 54, 56. As to substance, the CJEU reformulated the questions referred to it also in the present Case C-598/15 Banco Santander para. 32; see supra note 4.