Page - 113 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 113 arrangements under a general economic crisis? Might the effect be that consumers in general will receive less help from the state? Or maybe more help? How will private helping initiatives be affected? – These are all questions that are arduous to answer. To some people it may seem evident how a bank would behave if the court, or the consumer, could still intervene. It is, however, not easy to understand how all other aspects affect a decision to act in a certain kind of situation. Maybe the most probable change in behaviour would be that banks change their credit contracts, so that they seem less unfair from an EU law perspective (provided the contracts used by the particular bank actually contain unfair terms). (viii) Yet another argument concerning how the bank might be affected is our assumption that the bank’s interests would not be impaired substantially if a judicial review of terms in the mortgage contract was held to be still possible or even necessary at the present procedural stage. As previously mentioned, such a decision would not mean that the bank ultimately loses the possibility to sell the apartment.105 If a judicial review of potentially unfair terms is allowed, the bank – depending on the outcome of that review – will either remain in its present position of being the ‘owner’ of the apartment, or will be restored in its former position as a security-right holder with a valid secured claim, in which case the options are that either the bank will be paid (if the consumer can use the time to raise the money) or the bank can enforce its security right, probably by way of traditional judicial enforcement. Since the bank’s basic interest is to gain the money it contracted for,106 all these possible courses of events serve that interest to a more or less comparable extent, with the reservation that any solution allowing the consumer to stay in the apartment, for the additional time any kind of proceedings may last, involves the additional risk for the bank that the apartment may depreciate as a consequence of this using.107 (ix) One can also form an argument from presumptive practical difficulties the consumer may face when a judicial review is no longer allowed at the present stage. Making the case depend on a strict procedural distinction among proceedings carried out between the same two parties108 may potentially imply a significant risk that the consumer will miss the point up to which she would have to bring complaints on the ground of allegedly unfair terms. Note that the enforcement procedure before the notary is finalised without any involvement of the consumer (the bank acquired the apartment by way of self-contracting). Under such circumstances, the consumer might be unaware of the caesura between the two formally distinct procedures. Given that, under CJEU case law, consumers’ unawareness of their rights awarded by EU law is considered problematic in terms of compliance with the principle of effectiveness,109 this can support an argument against excluding any judicial review of unfair terms at the present stage. 105 See supra, III.B. 106 Cf. supra, III.B. 107 See supra, III.C.2. sub (v). 108 The distinction is between the procedure between the contracting parties based on the mortgage contract on the one hand (proceedings ‘type (a)’ as categorised above) and proceedings – still, between the same contracting parties – based on the bank’s meanwhile acquired ‘right of ownership’ on the other hand (proceedings ‘type (b)’). Cf. supra, III.A. sub (ii). 109 For references, see III.D.2. below with note 121.