Page - 90 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 90 e.g., from a contract for sale).19 Second, in this context, the ‘summary’ character of the procedure at hand means that the decision is not final; the judgement does not have the authority of res iudicata.20 The summary character of the procedure reflects the rebuttable presumption that a property right in an immovable object exists and belongs to the person registered as its title-holder in the land register.21 Therefore, the defendant may be forced to vacate the property under a judgement rendered in this summary procedure. But there still is a possibility to afterwards challenge the validity of the registered title-holder’s acquisition of ownership in a ‘plenary’ procedure. A final decision on property issues can only be obtained in that latter type of procedure. If the registered title-holder’s right of ownership is ruled to be invalid in that subsequent trial, this person will be deemed to never having been the rightful owner. This second type of procedure, which alone decides on the validity of the acquisition, is not mentioned in CJEU’s judgement; perhaps it has not been addressed in the referring court’s application for the preliminary ruling. In any case, the CJEU does not deal with the question whether it would be in line with the UCTD’s principle of effectiveness if the consumer had to leave the apartment in the first place but still had the chance to get it back in such a ‘plenary’ procedure. We will not deal with this question either, and base our article on the same simplification as appears to the readers of the CJEU case. This is not a problem in the light of our primarily methodological goals. But it should be noted that we, therefore, cannot (and do not) claim to present ‘the right solution’ for Spanish law. The procedural clarifications made above are also important in another context. They should help to avoid drawing overly strict conclusions from the CJEU’s reasoning for other European legal systems. The Court’s argumentation has been developed against the background of what the Court understood to be Spanish (substantive and procedural) law,22 and this involves the assumption that the law of civil procedure does not provide any chance to raise a defence based on the invalidity of the acquisition. Many other European laws do not have such provisions, and it is therefore not excluded that the CJEU might come to a different conclusion if the same set of facts were arising in another Member State. The Court, in an almost hidden move at the very end of its reasoning, seems to recognise this: It states that the judgement’s result, i.e., that Articles 6 and 7 UCTD are not applicable to proceedings such as those before the referring Spanish court, shall apply “provided that … the proceedings are independent of the legal relationship between the creditor and the consumer”.23 19 See Isabel González Pacanowska and Carlos Manuel Díez Soto, National Report on the Transfer of Movables in Spain, in NATIONAL REPORTS ON THE TRANSFER OF MOVABLES IN EUROPE, VOLUME 5 393, 537 ff. (Wolfgang Faber and Brigitta Lurger eds., 2011). We are grateful to these authors for having provided us with additional information on Spanish civil procedure law, which is reflected in this paragraph. 20 Article 447(3) of the Spanish Code of Civil Procedure. 21 See Article 38 of the Spanish Act on Hypothecs. 22 For the importance of considering the facts of the referred case when interpreting the CJEU’s judgement, see Wolfgang Faber, Auslegung von EuGH-Entscheidungen – Eine Annäherung anhand von Beispielen aus dem Verbraucherprivatrecht, 139 JURISTISCHE BLÄTTER 697 (part 1) and 776 (part 2), at 707–709 (2017). This should arguably include national law in relation to which the CJEU develops its argumentation. 23 CJEU, Case C-598/15 Banco Santander para. 50 and in the final answer (italics have been added by the authors). Note that the “provided that” formula is equally present in the French version (i.e., the original version) and in the Spanish version (the official language of the case before the CJEU) of the judgement, but has been translated falsely in the German version (using “because” – “da” in German – instead of “provided that”).