Page - 108 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 108 not be less favourable than those governing similar domestic actions (principle of equivalence)”.85 Transposing this principle into the present context could lead to the following conclusion: National law may provide that a transfer of ownership based on an obligation that turns out to be void or avoidable (under a provision of national law) is to be treated as never having taken proprietary effect (retroactive proprietary effect).86 If such a rule of national law exists, the EU law principle of equivalence requires that, where a contract term in a consumer mortgage agreement forms the basis of a transfer of ownership to the acquirer-bank, and a national court finds this term to be ‘unfair’ and therefore not binding, this would have to trigger exactly the same proprietary effect as if a term forming the basis of the acquisition were found void under a provision of national law: the acquisition would have to be treated as ineffective from the outset. If the comparable provision of national law states that the invalidity of the contract term must be reviewed ex officio, the same must apply to the reviewing of a potentially unfair term in the sense of the Directive.87 (iii) Furthermore, an attempt of concretising the Directive’s standards of effectiveness with regard to a natural person’s need for appropriate housing will show that there is existing CJEU case law on the effectiveness of the UCTD, according to which the fact that the object of an enforcement procedure is the consumer’s family home must be given specific attention. The Court maintains that the fundamental freedom of housing, as enshrined in Article 7 of the EU Charter of Fundamental Rights (respect for private and family life, home and communications) is to be taken into account when interpreting the UCTD.88 This finding does not form a clear precedent; there are differences in that the Banco Santander case starts after the enforcement procedure has already been completed.89 Still, one can note for further discussion that the fact that a person or family might lose their home is given specific weight by the CJEU when delimiting the effectiveness of the UCTD. This concretises the normative force of the rules stating that unfair contract terms must not be binding on the consumer, where the family home is at risk. (iv) There are also further normative indications we can derive from the UCTD. It is clear from the Directive that, to assess the unfairness of contractual terms, regard must be given to the purpose of the contract;90 that is, in the present case of a mortgage agreement, to provide security. It is also clear from Recital 16 UCTD that in order to be treated as dealing in good faith, the professional 85 See CJEU, Case C-40/08 Asturcom paras. 38 and 49 ff.; see also, among many others, CJEU, Case C-76/10 Pohotovosť paras. 47 ff.; Case C-488/11, Dirk Frederik Asbeek Brusse, Katarina de Man Garabito v Jahani BV ECLI:EU:C:2013:341 paras. 42 ff., all of them dealing with this principle in relation to the national court’s duty to apply the rules implementing the UCTD ex officio. For a broader discussion, see, for instance, KÖNIG, supra note 49, at 92 ff. 86 As provided, e.g., by Spanish law; see Pacanowska and Díez Soto, supra note 57, at 545 ff. See also Article VIII.– 2:202(1) and (2) DCFR with Comment B and the national notes on these provisions in von Bar and Clive, supra note 39, at 4656 ff. 87 Compare, again, CJEU, Case C-40/08 Asturcom paras. 53 ff. 88 See CJEU, Case C-34/13 Monika Kušionová v SMART Capital a.s. ECLI:EU:C:2014:2189 paras. 62–66. Cf. also CJEU, Case C-415/11 Aziz para. 61 and Case C-169/14 Juan Carlos Sánchez Morcillo, María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA ECLI:EU:C:2014:2099 paras. 38, 43. 89 This has been duly observed by AG Wahl, Opinion on Case C-598/15 Banco Santander paras. 58–68 (see supra, III.A. sub (ii)). Note, however, that we are not employing this difference as a decisive one from the beginning, but aim at taking it into account just as one aspect among many. 90 In the language of Article 4(1) UCTD, the “nature of the goods or services”, “all the circumstances attending the conclusion of the contract” and “all the other terms of the contract” are to be taken into account; cf. Thomas Pfeiffer, Art 4 RL 93/13/EWG, in DAS RECHT DER EUROPÄISCHEN UNION, BAND IV: SEKUNDÄRRECHT, at n. 7 (Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim eds., 1999); Andreas Fuchs, § 307 BGB, in AGB-RECHT, at n. 116 (Peter Ulmer, Hans Erich Brandner and Horst-Diether Hensen eds., 12th ed., 2016).