Page - 115 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 115 assume a high priority in the weighing process. However, we already know that such a ‘clear norm’ of EU law does not exist for the issue to be decided in the present case.113 It is also clear that there are no provisions of national (in this case: Spanish) law which could claim to settle the issue once and for all. We have seen that the Spanish property law provisions on the acquisition of ownership depend on a valid obligation to transfer the ownership from the consumer to the bank in the course of the forced sale (‘causal’ transfer), and that the validity of this obligation may be questionable if the mortgage agreement was affected by unfair enforcement- related contract terms.114 To what extent this dependency actually exits in a particular case would, first, depend on whether and which contract terms ultimately turn out to be unfair. Second, this would be the task of the national court to sort out according to the division of work between the national court and the CJEU in a preliminary ruling procedure.115 Regarding the Spanish procedural provisions, we have seen that the specific type of procedure for enforcing registered rights in rem is a summary procedure only, which does not have the effect of res iudicata and does not produce a final decision as to the rightful or wrongful acquisition of ownership by the bank; the latter is left to a ‘plenary’ procedure.116 The conclusion to be drawn from this is, however, not self-evident. One could either argue that the inexistence of any right to invoke, in the summary procedure, the unfairness of terms of the mortgage agreement is not that detrimental for the consumer because she could still revise the result in a subsequent ‘plenary’ procedure. Or one could point to the fact that the apartment is the consumer’s only present housing option and that this may speak strongly against forcing the consumer out of her home before the review of potentially unfair terms has been settled.117 Given that we do not have sufficient knowledge of national Spanish procedural law, the exact weight these national provisions should be awarded in the weighing procedure must be left open here. It will, however, be evident that the final assessment of these implications of national property law and procedural law would have a strong impact on the weight the national norms may assume in an ‘absolutely final’ weighing process. Further, it should have become apparent already from our previous discussion that the potential result regarding the ‘real issue’ may vary depending on which national legal system is concerned. It should, however, also be made clear that even if a specific national legal system provides that a transfer of ownership is perfectly independent from the validity of the underlying obligation,118 and that the same is true for proceedings enforcing such a 113 See section III.C.1. 114 See above, I.C. sub (ii). 115 Compare, among many others, CJEU, Case C-433/11 SKP k.s. v Kveta Polhošová ECLI:EU:C:2012:702 para. 22; Case C-297/88 Massam Dzodzi v Belgian State ECLI:EU:C:1990:360 para. 33. 116 See above, I.C. sub (ii). 117 Cf. supra, III.C.1. sub (iii) and the CJEU case law referred to in note 88. 118 At least at first sight this would hold true with regard to German law, which provides for an ‘abstract’ transfer of ownership, i.e., a valid underlying obligation is not required for a transfer to take place, if only a valid ‘real agreement’ has been concluded between transferor and transferee. However, a transfer based on an invalid obligation would immediately trigger an obligation to re-transfer the property under unjust enrichment rules. See, for instance, Mary-Rose McGuire, National Report on the Transfer of Movables in Germany, in NATIONAL REPORTS ON THE TRANSFER OF MOVABLES IN EUROPE, VOLUME 3 1, 73 ff. (Wolfgang Faber and Brigitta Lurger eds., 2011). This obligation to re-transfer might still operate as a gateway for defects in the underlying obligation to break through as long as the parties are still the same.