Page - 107 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 107 1. Normative Arguments If available, relevant normative propositions of various kinds (EU legislation, national statutory provisions, court rulings, general legal principles and values) have to be taken into account for solving the ‘real issue’. This may be an easy task if there is one applicable rule fully fitting to the case at hand. Regarding a case like Banco Santander, things are not as simple. (i) There are, of course, relevant norms on the EU law level: Article 6(1) UCTD provides that unfair terms in consumer contracts shall not be binding on the consumer, and under Article 7(1) UCTD, Member States must ensure that adequate and effective means exist to prevent the continued use of unfair terms in consumer contracts. On this basis, the CJEU has developed an extensive body of case law on the principle of effectiveness related to that Directive as well as on the national courts’ duty to review potentially unfair contract terms ex officio in particular.83 However, the mere existence of this normative material does not help much in solving issues such as in Banco Santander – precisely because the issue is the possible limitation of the ‘power’ these norms may exercise, or the scope they may apply to, in view of national (Spanish or other) norms potentially operating in the opposite direction. In the present Spanish case these national norms are such of civil procedure (defining a stand-alone type of procedure to enforce registered rights in rem) and substantive property law (awarding an ‘owner’ a certain degree of legal protection). (ii) However, one can still try to concretise some characteristics – potential strengths or weaknesses – of these normative propositions. This will make it easier to deal with these normative aspects in the final weighing of arguments. Regarding the national (Spanish or other) rules on civil procedure and substantive property law, for instance, a closer analysis may reveal that these rules in themselves imply potential gateways for ‘acquisition flaws’ to creep in. A specific procedure for enforcing a right in rem, by putting the person so entitled into possession of the object, may or may not depend, as a prerequisite, on the rightful acquisition of said property right. This acquisition could depend on a fully valid obligation to transfer (‘causal transfer’), which may prove lacking if clauses in the mortgage agreement that are material for the final forced sale turn out to be unfair. There may also be a second type of procedure available for retrospectively challenging the bank’s acquisition, as apparently is the case in Spanish law.84 All this can vary from system to system. As we have pointed out, we do not consider it to be our task to settle these questions for Spanish law, but we think the point is made that ‘ownership’, even if perceived in its most traditional way, can be vulnerable and that ‘ownership’, if required as a prerequisite in a specific type of civil procedure between two parties, serves a relational function. In this context, another principle of EU law may also become relevant: the principle of equivalence. This principle often comes into play in relation to procedural rules of national law, but is not limited to this area. According to settled CJEU case law, rules on certain procedural aspects are, in the absence of EU legislation in the specific area, a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. However, these rules “must 83 See supra note 3. 84 See I.C. sub (ii) above.