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ALJ 2019 Wolfgang Faber/Claes Martinson 100
European Union lawâ.49 Such provisions of national law may be those of procedural law, which
evidently play a prominent role in Case C-598/15 Banco Santander. Given that most procedural
aspects are not harmonised by EU legislation, they are, in principle, a matter for the national legal
order of each Member State. However, this principle of procedural autonomy of the Member
States is limited by the principle of effectiveness as stated above.50 Yet the provisions of national
law which are subject to the principle of effectiveness can also be provisions of substantive law.51
We will get back to the implications of this principle of effectiveness further below.52
(ii) Second, a parallel reading of the AGâs opinion and the CJEUâs judgement shows that much of the
argumentation focuses on drawing a quite clear distinction: a line is drawn between a scope where
consumer protection provided by the UCTD applies, and where it does not apply. This is done on
two different levels.
On the level of procedural law, the distinction is drawn between two different âtypes of proceduresâ.
One type (a) is proceedings brought with regard to the contractual relationship between bank and
consumer, including, as the case may be, a procedure seeking for payment based on the credit
contract, and proceedings enforcing the outstanding debt based on the partiesâ mortgage
agreement. In the present case, the latter ultimately lead to the forced sale of the apartment. The
other type (b) of proceeding is brought âto give effect to a property rightâ; in the present case: to
force the consumer out of the apartment based on the bankâs right of ownership.53 It is pointed
out in the argumentation that the whole body of existing CJEU case law on the effectiveness of
Articles 6(1) and 7 UCTD covers, exclusively, credit obligations and (still) ongoing mortgage
enforcement proceedings,54 i.e., proceedings of type (a) (which is true but naturally in itself does
not allow the conclusion that the Directive cannot produce effects in other proceedings as well).
On this basis, AG Wahl observes that the procedure in the present case is not one of type (a) above,
âin which it might still be appropriate to give a ruling as to the unfairness of the terms of a mortgage
loan agreement previously entered intoâ55 (which appears to imply the premise that within
proceedings of type (b) it would not any longer be âappropriateâ to bother about unfair contract
terms). Rather, it is submitted by the AG that âthe sole objectâ of proceedings of type (b), as carried
49 See, among many others, CJEU, Case C-415/11 Aziz para. 50; Case C-40/08 Asturcom para. 38. For an in-depth
analysis of the principle of effectiveness in the case law of the CJEU, see, for instance, KATRIN KULMS, DER
EFFEKTIVITĂTSGRUNDSATZ in particular at 43 ff. (2013); JULIA KĂNIG, DER ĂQUIVALENZ- UND EFFEKTIVITĂTSGRUNDSATZ IN DER
RECHTSPRECHUNG DES EUROPĂISCHEN GERICHTSHOFS 43 ff., 105 ff. (2010); see also BEKA, supra note 3, at 31 ff.; Anthony
Arnull, The Principle of Effective Judicial Protection in EU law: An Unruly Horse?, 36 EUROPEAN LAW REVIEW 51 (2011).
50 See the references supra note 49. For a closer analysis of the âprinciple of procedural autonomy of the Member
Statesâ, including its relationship to the principle of effectiveness, see CHRISTOPH KRĂNKE, DIE VERFAHRENSAUTONOMIE
DER MITGLIEDSTAATEN DER EUROPĂISCHEN UNION (2013).
51 This can be illustrated, for instance, by the CJEUâs case law on claims for damages for infringements of Article 101
TFEU (prohibition of prevention, restriction or distortion of competition), which were, for a long time, governed by
national substantive law while the principle of effectiveness required certain effects regarding, e.g., limitation
periods and the extent of the compensation awarded (loss of profit plus interest); cf. CJEU, Joined Cases C-295/04
to C-298/04 Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA and others paras. 60 ff., 77 ff., 89 ff. These case
law principles have later been codified in Directive 2014/104/EU of the European Parliament and of the Council on
certain rules governing actions for damages under national law for infringements of the competition law
provisions of the Member States and of the European Union, [2014] OJ L349/1.
52 The principle of effectiveness will be addressed throughout this article; see, in particular, sections III.C.1., III.D.1.
and 2. and IV.
53 See AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 58â68. The Court takes over this dichotomy of
different types of proceedings in CJEU, Case C-598/15 Banco Santander paras. 39â44.
54 AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 43 ff., in particular paras. 54â56.
55 AG Wahl, Opinion on Case C-598/15 Banco Santander para. 58. See also ibid., para. 62 and subsequent paras.
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book Austrian Law Journal, Volume 1/2019"
Austrian Law Journal
Volume 1/2019
- Title
- Austrian Law Journal
- Volume
- 1/2019
- Author
- Karl-Franzens-Universität Graz
- Editor
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Location
- Graz
- Date
- 2019
- Language
- German
- License
- CC BY 4.0
- Size
- 19.1 x 27.5 cm
- Pages
- 126
- Keywords
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Categories
- Zeitschriften Austrian Law Journal