Page - 105 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 105 apartment, immediately and forever – already forms a ‘real issue’ in terms of a functional approach. However, a closer look at the case and the necessity to view the problem from the perspective of the CJEU, i.e., with the perspective of interpreting certain provisions of EU law, reveals that this way of framing the question does not yet describe the problem sufficiently. We know that the referring court’s questions concern that court’s ability, or even its duty, to review potentially unfair terms in the mortgage agreement between the bank and the consumer at the procedural stage their conflict has reached by now. An answer to this question does not necessarily decide whether the consumer can stay or has to go: If the consumer wins before the CJEU, this does not mean that the bank ultimately loses. A security agreement, by definition, provides the secured creditor a right to use the security object to get paid. The bank, in any case, will – and should – be able to do that. The question therefore is just whether the bank can act immediately by evicting the consumer and then use the apartment in whatever way that appears suitable, or whether the bank must wait until the judicial review of potentially unfair terms is completed. In the latter case, the bank can either proceed as intended (if no unfair terms are found) or may be required to follow the common procedure for the realisation of collateral (if contract terms relating to enforcement prove to be unfair). In any of these situations the consumer faces the immediate risk of being forced to leave. But during the time frame that occurs in the latter situations the consumer may perhaps raise the money to pay the bank. The latter possibility – judicial review allowed, unfair terms detected, enforcement therefore thrown back to ordinary judicial enforcement – means the consumer may even have a chance to keep ‘her’ apartment within her own patrimony, by paying off the bank. To formulate the real issue, we first take into account that the CJEU is asked to give a normative answer in terms of interpreting a provision of EU law in a preliminary ruling procedure. Second, no CJEU guidance so far exists for situations where the consumer, at the procedural stage reached by now, actively requests the national court to review potentially unfair contract terms. Third, there is no such guidance either in cases where the consumer does not (but the court could still review the mortgage contract of its own motion). Thus, the CJEU could frame the ‘real issue’ with the purpose of delivering guidance for both of these situations.75 The ‘real issue’ could then be formulated as follows: Should a judicial review of potentially unfair terms in a security agreement be excluded76 once the security right in the consumer’s apartment has been enforced and the creditor-bank itself has acquired the apartment in the forced sale, and therefore seeks to force the consumer out of the apartment?77 This question arises for situations (a) where the consumer itself asks the national court for such review, and (b) where the consumer remains passive and it would be on the national court to undertake such review of its own motion. In the latter situation, if the answer to the above question 75 This would be a constructive approach with a view of providing as much guidance as reasonably possible within the frame set by the questions referred to the CJEU in the particular preliminary ruling procedure. It is clear, however, that the actual questions only address the latter situation in which the consumer remained passive. 76 This is the actual question of law to be decided by yes or no: Can (or must) the court still carry out such a review, or is this excluded? 77 This part of the question describes the specific situation which is characteristic for the case: Enforcement has taken place and the bank itself has acquired the collateral.