Page - 114 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 114 (x) Finally, there might be arguments regarding the development of the overall relationship between bank and consumer, disregarding the original terms of the contract. If the bank allows the consumer to stay in the apartment for a long time after the acquisition and therefore waits with evacuation proceedings, it may seem that the bank is not ‘rewarded’ for this kindness. This may be an argument that AG Wahl took into account, although he did not mention it explicitly.110 (xi) We do not claim that we have identified each and every aspect that may potentially be relevant for solving the ‘real issue’ in a case like Banco Santander. However, with the normative arguments (III.C.1.) and the further arguments listed in this section (III.C.2.) we think we have presented enough to illustrate our point: that a reasonable solution can be developed without making the case strictly depend on a concept like ‘ownership’. We also hope that the arguments we have identified will not be considered peculiar, but rather as arguments that lawyers would have contemplated anyway when dealing openly and consciously with a comparable case. D. Weighing of Arguments The fourth and final step, as described in section II.B, is to weigh the arguments prepared in step 3. To achieve a solution to the ‘real problem’, the decisive and most important arguments are subjected to a final evaluation (if need be),111 linked to and weighed against one another, and are finally put together in an argumentation to solve the issue. To do this it might be useful to recapitulate the ‘real issue’: Should a judicial review of potentially unfair terms in a security agreement be excluded 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?112 As indicated above, there is no specific method or normative framework for carrying out the weighing process. We will therefore proceed as we consider it appropriate and, given that legal norms evidently require to be given specific weight in the process, start with them. Please remember that we are doing a researcher’s task here and that we have limited the facts of the Banco Santander case to what seemed relevant for us to show how a functional approach would operate in contrast to formal-conceptual reasoning. We are, in other words, not deciding ‘the real case’. 1. Another Evaluation of the Norms A weighing process to decide the ‘real issue’ could start by again checking whether there is a norm or comparable normative proposition – in our case: a provision of EU law or an existing preliminary ruling by the CJEU – that addresses the ‘real issue’ in a direct way. If so, this norm would have to 110 Compare AG Wahl, Opinion on Case C-598/15 Banco Santander para. 79. 111 In the present article, this evaluative task, to a relatively large extent, has already been accomplished in the previous sections in order to deal with the individual aspects where they arise. 112 Cf. III.B. above: Note that we have clarified there that this main question arises for different factual situations and can, depending on the answer to that main question, trigger additional questions as to whether a judicial review is to be carried out only upon the consumer’s application or ex officio; and whether an ex officio review is merely allowed or even necessary.