Page - 99 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 99 The functional approach includes these kinds of arguments, simply because they cannot be avoided. Instead of hiding the fact that these arguments have been a part of how the real problem was perceived and dealt with by the lawyer in question, the functional approach is (ideally) to reveal what role these arguments played. This can of course not be done completely in regard to all the arguments, both because time is limited and because it is difficult to fully understand one’s own process of thinking. It is, however, useful to make an attempt with the most central arguments. With such an ambition, the lawyer will understand the role the thought process and the concepts have played better. In the following we will illustrate how the perspective offered by the functional approach, and the four steps presented as a toolbox, can be used for analysing the CJEU Case C-598/15, Banco Santander. III. An Analysis of the Case with a Functional Approach A. A Closer Review of the Court’s and the Advocate General’s Reasoning Before we start analysing Case C-598/15 Banco Santander in terms of a functional approach, some central aspects of the CJEU’s reasoning in its judgement should be reviewed more closely. This includes a closer examination of the opinion delivered by AG Nils Wahl, because the Court quite evidently follows the AG’s analysis in practically all core arguments which have been identified as relevant for our article.45 The AG’s argumentation has been abridged and, to some extent, rearranged by the judges, and they give a direct reference to the AG’s opinion only with respect to one specific argument.46 Nevertheless, in such a case, one can assume with a relatively high degree of probability that the CJEU ‘follows’ the AG’s opinion in the sense that the judges in all likelihood identify with the more extensive analysis in the AG’s opinion.47 The purpose for highlighting the argumentation presented in Banco Santander in a more detailed manner is twofold: It will help to carve out aspects we have to refer to in later parts of the article, and to contrast this way of reasoning with the functional approach. (i) One aspect, highlighted much clearer in the AG’s opinion than in the Court’s judgement, is that the core issue of a case like this is to delimitate the ‘operating distance’ of the general EU law principle of effectiveness.48 Under this principle, provisions of national law must not “make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by 45 Cf. above, chapter I. 46 Compare CJEU, Case C-598/15 Banco Santander paras. 39–49 to AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 58–84 (for the one aspect where the judgement directly refers to the AG’s opinion, see above, section I.C. sub (i) at note 11). 47 See Faber, supra note 22, at 776; see also Robert Rebhahn, Nach §§ 6, 7 ABGB, in 3. AUFLAGE DES VON DR. HEINRICH KLANG BEGRÜNDETEN KOMMENTARS ZUM ALLGEMEINEN BÜRGERLICHEN GESETZBUCH – ABGB §§ 1 BIS 43, at n. 123 (Attila Fenyves, Ferdinand Kerschner and Andreas Vonkilch eds., 3rd ed., 2014). 48 See AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 34 ff., 45 ff., 82 and the conclusion drawn in para. 84. The Court mentions the necessity of providing ‘effective judicial protection’ in CJEU, Case C-598/15 Banco Santander para. 38, to which the subsequent examination of the procedural particularities of the case at hand ultimately relates.