Seite - 120 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 120 argument potentially relevant within the narrow issue, and to provide a methodological framework for weighing these arguments against each other. The goal pursued in this weighing process, in a case like Banco Santander, is to determine a proper scope and effect of the principle of effectiveness, in order to achieve the goals of the UCTD in an appropriate manner. The issue we want to address in this final chapter of our article goes one step further. The issue is whether at least in a case like this one, that is, in a mere two-party relationship, EU law itself might actually require applying an approach which comes relatively close to the functional approach applied above. In particular, the principle of effectiveness appears to display a number of features resembling elements of the functional approach. In turn, reflecting on the functional approach might contribute to a better understanding, or even a further sharpening, of the application of the principle of effectiveness. Actually, it has been pointed out repeatedly that the vagueness presently displayed by the principle of effectiveness should be reduced.132 Evidently, to sharpen such a central principle is a comprehensive issue. The following observations and suggestions do not take the form of an in-depth discussion. Rather, they are intended to form a starting point for further research, and for debate. A. Normative Support for a Functional Approach in EU Law To begin with, the Court commonly states that every case in which the question as to whether a national procedural provision infringes the principle of effectiveness arises “must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies”.133 In other words, context and function do matter. There are also clear indications in CJEU case law that the Court, referring to the principle of effectiveness, turns against putting decisive weight into distinctions based on concepts and categorisations. For instance, the Court has declined an argumentation based on a formal distinction between ‘licence’ versus ‘sales’ contracts when dealing with the rule of exhaustion in copyright law.134 In other cases, which formally depend on the interpretation of a certain statutory notion or concept, the principle of effectiveness has been deployed for interpreting this notion flexibly in order to achieve the effects pursued by EU law.135 Further, it has been observed that the Court’s case law on the principles of equivalence and effectiveness reveals an approach of weighing procedural principles of national law against the goals of EU law. Based on this this understanding, any severe interference with the procedural autonomy of a Member State must be justified by particularly central interests of EU law.136 This very much resembles the idea of balancing different 132 See, e.g., Michael Dougan, The Vicissitudes of Life at the Coalface: Remedies and Procedures for Enforcing Union Law Before the National Courts, in THE EVOLUTION OF EU LAW 407, 420 (Paul Craig and Gráinne de Búrca eds., 2nd ed., 2011); KRÖNKE, supra note 50, at 230. For further references, but less critical in her own assessment, see also KULMS, supra note 49, at 185 ff. 133 See, for instance, CJEU, Case C-32/14 ERSTE Bank Hungary para. 51. 134 See CJEU, Case C-128/11 UsedSoft GmbH v Oracle International Corp. ECLI:EU:C:2012:407 para. 49. The observation that the mere denomination of the ‘type of contract’ cannot be decisive in the eyes of the CJEU is made by Christian Baldus and Thomas Raff, Richterliche Interpretation des Gemeinschaftsrechts, in ENZYKLOPÄDIE EUROPARECHT, BAND 6: EUROPÄISCHES PRIVAT- UND WIRTSCHAFTSRECHT 153, 202 (note 179) (Martin Gebauer and Christoph Teichmann eds., 2016). 135 For a most recent example, see CJEU, Case C-724/17 Vantaan kaupunki v Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy ECLI:EU:C:2019:204 paras. 43–51, regarding the concept of ‘undertaking’ within the meaning of Article 101 TFEU. The potentially conflicting concept of ‘legal persons’ (compare the referring court’s concerns in para. 15) was not considered decisive in solving the case. 136 KÖNIG, sura note 49, at 240 ff.