Page - 104 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 104 however, not mean that a bank can never have an interest to speculate in making profit by taking a consumer’s home and selling it at a higher price. When identifying the real problem, the possible interest to make profit on customer failure needs to be considered, but it should not be seen as a legitimate interest. At this first immediate level the typical conflict of interests between the parties is, therefore, rather easy to identify. The consumer wants to keep the home. The bank does not want to have the consumer’s apartment, but it wants to limit its risk and the apartment is necessary for reaching that goal. From the consumer’s perspective, however, the situation is somewhat more complex than we have suggested in the previous paragraph. Of course the consumer will primarily be interested in keeping her home. Nonetheless, this is a realistic goal only when she sees a chance to solve her economic problems to such an extent that she can pay off the bank. If it is already clear for the consumer that she will not be able to raise the money to discharge her obligations towards the bank, and that she therefore cannot manage to keep her home, the consumer’s interest will be to get out of the situation with as little debt left as possible. This means achieving the highest possible price in the course of enforcement, and, apart from that, cooperating with the bank in order to be charged with as little costs as possible. Still, in reality the interest of the consumer may not be simply black or white. Between the two basic situations just described, there may be fifty shades of situations where it is more or less unclear for the consumer whether she can solve her economic problems and manage to keep her home, or not. In such situations, it may be impossible for the consumer to know what actually is best for her. In these cases, the interest of the consumer arguably is (a) not to become over-indebted and (b) to be able to get another home (owned, rented or otherwise, but a home). It might actually also be in the consumer’s interest to (c) be able to protest against the bank’s action for vacating the apartment – although this will make the process more costly – and to prolong her stay in the original apartment to see whether there is a way to solve her economic problems. That might be achieved by finding a job (if unemployed) or by having someone move in and share the rent, etc. Accordingly, in these ‘unclear’ situations, the consumer’s interest is not limited to keeping the apartment or getting out of her obligations against the bank with the best possible economic result. The consumer’s interests may also depend on other factors, such as the possibilities to get another home and the risk to become over-indebted. And given that things often are not clear, this may suggest, from the consumer’s perspective, a solution that gives her some time to prolong the process. As the case may be, it could also prove necessary to further shape the conflict situation by referring to specific additional facts which make up the characteristic problem.74 When dealing with this issue in the present EU law context, we must also keep in mind that the CJEU, in a preliminary ruling, never actually decides the case but has to interpret a provision of EU law. This, too, can have an impact on the way questions are phrased in functional terms. In the procedure before the referring court, the bank seeks to force the consumer to vacate the apartment. This – the question whether the bank can demand the consumer to leave the of credit institutions in the EU, see THE SOCIAL RESPONSIBILITY OF CREDIT INSTITUTIONS IN THE EU – DIE SOZIALE VERANTWORTUNG VON KREDITINSTITUTEN IN DER EU – LA RESPONSABLILITÉ SOCIALE DES INSTITUTIONS FINANCIÈRES AU SEIN DE L´UE (Jan Evers and Udo Reifner eds., 1998). 74 Cf. Wolfgang Faber, Martin Lilja and Günther Kreuzbauer, Employing Argumentation Analysis in the Discussion of Optimal Rules for the Transfer of Movables – Part 1: Description of the Problem and General Outline, 1 EUROPEAN PROPERTY LAW JOURNAL 10, 22 and (in particular) 39 (2012).