Page - 89 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 89 that the mortgage contract contained unfair terms, within the course of the mortgage enforcement procedure.11 Whether this was the case or not is something we simply cannot assess. We therefore design ‘our version’ of the Banco Santander case as if the issue of complete consumer passivity did not arise,12 and we will not get further into a discussion whether this argument has been raised rightly or not.13 The reason is that this aspect is not directly relevant for the property law implications of the case, which are our primary concern. Another simplification is that we will not deal with the fact that the consumer in the case was helped by a fund to stay in the apartment as a tenant for some time between the completion of the enforcement procedure and the bank’s current claim for ejection.14 This, too, is not directly relevant to the property law implications of the case, although this fact may theoretically offer a reason why the consumer had little incentive to make a claim, at an earlier stage, that the contract was unfair. In Advocate General (AG) Wahl’s opinion, the aspect of this social tenancy agreement is, however, rather employed as an argument for not recommending an ex officio intervention.15 (ii) Also the way we deal with Spanish procedural law in this article requires some clarification: in general, we try to refer to Spanish procedural law in the same way as the CJEU and the Advocate General do it in their reasoning. This primarily means that the specific proceeding before the referring Spanish court serves the purpose of “safeguard[ing] the protection of real rights entered in the land register, irrespective of the means by which they were acquired”.16 This, as such, is a correct description, but at the same time tells only half of the truth: Under the applicable Spanish rules of civil procedure, the procedure initiated by the bank to vacate the apartment17 is a ‘summary’ procedure. This means that, first, the defendant’s defences are limited to certain grounds entailed in an exhaustive list.18 This list does not include a defence based on the invalidity of a contract term of the mortgage agreement, or the invalidity of the whole mortgage agreement, which formed the basis of the claimant’s acquisition of ownership. However, the Spanish system of transferring ownership of both movable and immovable property is a ‘causal’ transfer system. This means that the transfer, including a transfer through a forced sale in an extra- judicial enforcement procedure, must be based on a valid underlying obligation to transfer (arising, 11 See CJEU, Case C-598/15 Banco Santander para. 49, referring to AG Nils Wahl, Opinion on Case C-598/15 Banco SantanderSA v Cristobalina Sánchez López ECLI:EU:C:2017:505, para. 70. 12 The issue of consumer passivity has been dealt with, with somewhat different outcomes, in CJEU, Case C-40/08 Asturcom paras. 33 ff. (national court’s duty to conduct ex officio review affirmed) and Case C-32/14 ERSTE Bank Hungary paras. 62 f. (principle of effectiveness held not to require counterbalancing complete passivity of the consumer). 13 There may be certain doubts arising from the principle of effectiveness because according to Article 444(2) of the Spanish Code of Civil Procedure, the defendant (here: the consumer) must, if the applicant (bank) so requests, pay a deposit fixed by the court before the defendant can challenge a claim brought under the specific procedure used for vacating the apartment (see CJEU, Case C-598/15 Banco Santander para. 8). The deposit to be paid in the present case was apparently € 10,000 (ibid., para. 24). Where a claim for vacating her apartment has been brought precisely because the consumer could not any longer pay her dues, it is rather likely that she cannot raise the money for paying a deposit either. 14 See AG Wahl, Opinion on Case C-598/15 Banco Santander para. 79. 15 See AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 79–81. 16 CJEU, Case C-598/15 Banco Santander para. 42; cf. also para. 44. 17 The procedure is governed by Article 250(1) no. 7 of the Spanish Code of Civil Procedure. 18 As provided by Article 444(2) of the Spanish Code of Civil Procedure; cf. CJEU, Case C-598/15 Banco Santander paras. 7 f.