Seite - 110 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 110 (iii) The following aspect is neither discussed in the CJEU’s judgement nor in the AG’s opinion, but certainly attracts a lawyer’s attention. The bank was, by way of a contract clause, given power to represent the consumer ‘as seller’ in a forced sale.96 At the same time, the bank was intended to be allowed to act ‘as buyer’ in that forced sale. The bank’s possibility to represent the consumer creates a conflict of interests on the part of the bank,97 which materialises in two related aspects: (a) A bank using such a contract term can, in lieu of other interested buyers,98 acquire the apartment for a rather low price. If the real estate market improves later, the bank can sell off the apartment for a much higher price (the point in time for both transactions is exclusively determined by the bank), with the intention of keeping the surplus for itself. (b) If a bank, using self-contracting, acquires the apartment for a low price, this means that rather little money is cashed in by the forced sale and, in turn, the consumer’s credit obligation will remain unpaid and due at a relatively high amount. On these grounds, the bank can further charge (more) interest, and it can ultimately use other means of enforcement, if available, to receive the money. Now, if the ultimate decision for the ‘real issue’ was to exclude any judicial review of potentially unfair terms at the present stage of proceedings, this would operate as an incentive for banks to proceed just the way described above. This would not only imply the risks of self-contracting as stated in the previous paragraph, this course of conduct could also be used in a strategic manner to cover up even further potentially unfair terms. Evidently, this would run contrary to the Directive’s intention to produce a deterring effect99 in order to put an end to the use of unfair terms. If, however, the ‘real issue’ is decided in favour of a judicial review to be carried out even at the present stage of proceedings, and if this review happens to reveal the unfairness of certain contract terms frequently used by banks, this may have a considerable impact on future contract practice in general. Banks will tend to adopt standard terms surviving the unfairness test imposed by the Directive. “To prevent the continued use of unfair terms in contracts” is in fact a major goal of the UCTD, explicitly highlighted in its Article 7(1) and repeatedly used as a prominent argument in the CJEU’s case law in order to elaborate, in particular, on the dissuasive effect the Directive is intended to produce.100 The latter is of course a normative argument, but as it builds upon consequences, it is mentioned in the present context. (iv) Awarding the bank a chance to earn even more money than it could expect to earn under the credit contract does not comply with the role of banks in the credit system; at least such a C-385/14 Jorge Sales Sinués v Caixabank SA and Youssouf Drame Ba v Catalunya Caixa SA (Catalunya Banc SA) ECLI:EU:C:2016:252 para. 25. 96 To this extent, the contract reproduces Spanish legal provisions and therefore does not fall within the ambit of the UCTD according to its Article 1(2); see supra, III.A. sub (i). 97 As mentioned above (supra note 70) we do not have sufficient knowledge of the precise role of the public notary in the specific Spanish enforcement procedure in order to assess to what extent the conflict of interests actually is to be seen as problematic in the specific case. But we tend to think the involvement of a notary does not render the issue completely unproblematic. In any case, the discussion provided in the text aims to show what kinds of problems self-contracting may raise in a setting like the Banco Santander case. 98 This risk may have been a substantial one in Spain during the financial crisis. It may have been difficult to find other potential buyers also because of the fact that the former owner (the consumer-debtor) still lived there and market participants anticipated it could be difficult to evict her. 99 See the next paragraph at note 100. 100 See, among many others, CJEU, Case C-618/10 Banco Español de Crédito paras. 68–71; Case C-26/13, Árpád Kásler, Hajnalka Káslerné Rábai v OTP Jelzálogbank Zrt ECLI:EU:C:2014:282 paras. 78–84.