Seite - 121 - in Austrian Law Journal, Band 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 121 normative propositions within a functional approach as outlined above. For example, a national procedural provision specifying the principle of res iudicata may be weighed against the principle of effective application of EU rules.137 Further, the CJEU has stressed in certain cases that in order to safeguard the effective functioning of EU law, it is essential that conflicting interests of individuals can be weighed against each other, having regard to all aspects of the case; and that provisions of national (procedural) law that do not allow such weighing of interests may fail to comply with the principle of effectiveness.138 This weighing of the parties’ interests, again, resembles a feature of the functional approach. This example also shows that the strength the principle of effectiveness ultimately assumes is heavily influenced by the balancing process. B. Possible Contributions by the Functional Approach To what extent may the functional approach contribute to the understanding and application of the principle of effectiveness? As we have just illustrated, balancing different normative propositions, including the principle of effectiveness itself, and weighing the interests of the individual persons involved in the particular conflict, can already be said to form part of the CJEU’s methodological toolbox for applying the principle of effectiveness. This has not always been fully clear, partly due by the Court’s own formulation that national courts are under an obligation to ensure that “full effect” (or similar) must be given to EU law,139 which may have been understood in terms of a one way preference rule.140 The functional approach presented in this article, and its ability to reach balanced solutions in a reflected manner, suggests that this kind of weighing process should be fostered and further developed. In addition, we believe that steps 1 and 2 of the functional approach as presented in section II.B. – keeping the different relations apart and defining the real issue without being occupied with dogmatic concepts – could be particularly helpful when applying the principle of effectiveness. One major benefit of these tools is gaining a clear picture of what is relevant, and what is not. Similarly, these tools may prove extremely useful for identifying to what extent different cases brought before the CFEU are comparable. This is an important task, given that EU law principles, like the principle of effectiveness, are developed by case law in a step-by-step-process. This usually involves the Court repeating its own statements when deciding a new case on the same matter. 137 See CJEU, Case C-2/08 Amministrazione dell’Economia e delle Finanze, Agenzia delle Entrate v Fallimento Olimpiclub Srl ECLI:EU:C:2009:506 paras. 28–31 (weighing a specific interpretation of a provision of the Italian Civil Code against the effectiveness of EU VAT provisions). For a closer analysis of the ‘balancing’ or ‘weighing’ approach applied in this case, see KRÖNKE, supra note 50, at 198 ff., 328 ff. See also, as to substance, CJEU, Case 453/00 Kühne & Heitz NV v Productschap voor Pluimvee en Eieren ECLI:EU:C:2004:17 paras. 24–27. 138 See, e.g., CJEU, Case C-536/11 Donau Chemie AG and others ECLI:EU:C:2013:366 paras. 35 ff., regarding third-party undertakings’ access to files of judicial proceedings brought for infringements of EU competition law. Building on that decision’s reasoning, see also CJEU, Case C-365/12 P European Commission v EnBW Energie Baden- Württemberg AG, Kingdom of Sweden, Siemens AG, ABB Ltd ECLI:EU:C:2014:112 paras. 104–109, 132; and, regarding the process of weighing up different interests in proceedings for interim relief, CJEU, order in Case C- 162/15 P-R Evonik Degussa GmbH v European Commission ECLI:EU:C:2016:142 paras. 103–115 (in particular para. 111). 139 See, for instance, CJEU, Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn ECLI:EU:C:1991:65 para. 30. 140 Cf. KRÖNKE, supra note 50, at 201 ff. For a detailed analysis of case law development, see THOMAS VON DANWITZ, EUROPÄISCHES VERWALTUNGSRECHT 476 ff. (2008).