Page - 116 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 116 right, the question whether these national provisions decide the solution to the case may still depend on the EU law principle of effectiveness. Further, we can say that if a particular national legal system provides a ‘causal’ transfer as mentioned above, and if it should ultimately turn out that certain terms in the consumer mortgage agreement which are material for the non-judicial enforcement procedure are to be considered ‘unfair’ within the meaning of the Directive, there would be a quite strong argument from the EU principle of equivalence that the invalidity of the contract term should cause the transfer of ownership to be ineffective. The reason is that the same effect would be triggered if the invalidity of the contract was caused by a rule of national law.119 This is, in itself, not really a functional way of reasoning; but given that functional argumentation is intended to include all normative premises the case may involve, this kind of EU-law driven argument is taken account of. In any case, this argument can start only when it has been clarified that certain contract terms are ‘unfair’; it does not contribute to the question of unfairness itself, nor does it contribute to the assessment of the ambit of the effectiveness principle, which forms a separate and additional requirement. 2. Weighing Some of the Normative and Consequence-based Arguments The arguments we weigh in this subsection are mainly from III.C.1. sub (i)–(iii) and III.C.2. sub (i) and (iii). One of these arguments claims that it is necessary to limit the consumer’s possibilities to have contract terms reviewed because a third party who trusts the register might otherwise be affected. We have already pointed out that this is a weak argument for those cases where there are only two parties involved. The argument could, however, be interpreted in another, more favourable, way to make it useful. It could be interpreted as an argument for implementing one general rule (such as: ‘Once the acquirer is registered, this cannot be challenged’) without exemptions. Such a solution may be said to have the advantage of simplification. This would, however, be a quite unusual rule. To have different rules concerning a two-party relationship and a third-party relationship is indeed very common. There need not even be a good faith solution involved. A rule without any exception may also cause problems in the relationship between the two parties to the original mortgage agreement. One aspect, as previously mentioned, is that according to the CJEU, a person’s need for housing has to be given specific weight when interpreting the UCTD, notably when delimiting the appropriate scope of the effectiveness principle.120 Further, the enforcement procedure before the notary was finalised without any involvement of the consumer and the latter is therefore likely not to be aware that there are in fact two formally distinct procedures. This observation can be linked to further CJEU case law according to which the fact that the consumer “is unaware of or does not appreciate the extent of his rights” can have a substantial impact on the assessment that procedural rules fail to comply with the Directive’s principle of effectiveness.121 119 See supra, III.C.1. sub (ii). 120 See supra, III.C.1. sub (iii), with references in note 88. 121 See, to this effect, CJEU, Case C-415/11 Aziz para. 58; Case C-618/10 Banco Español de Crédito para. 54; Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Rocío Murciano Quintero and others ECLI:EU:C:2000:346 para. 26 (all regarding the UCTD and the national court’s duty to review contract terms ex officio). See also CJEU, Case C-32/12, Soledad Duarte Hueros v Autociba SA, Automóviles Citroën España SA ECLI:EU:C:2013:637 para. 38 regarding Directive 1999/44/EC of the European Parliament and of the Council on certain aspects of the sale of consumer goods and associated guarantees (Consumer Sales Directive) [1999] OJ L171/12.