Page - 117 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 117 Further, on a very general level, there seems to be little reason why bringing a complaint on the ground of unfair contract terms should no longer be possible for the consumer if it is still only the consumer and the professional who are parties to the conflict. If only these two parties can be affected by deciding the conflict, a formal change in the bank’s ‘type of right’ and in the ‘type of procedure’ should arguably not form a sufficient barrier against the Directive’s entire purpose of awarding consumers protection against unfair contract terms applied by the other party. Considering that the UCTD intends to create a deterring effect towards professionals,122 the decision of the conflict at hand should certainly not operate as an incentive for professionals to put an end on the courts’ ability to review unfair terms (by acquiring collateral on their own). Rather, there should be an incentive for the professional to achieve the highest proceeds possible when the enforcement of a security right turns out to be necessary.123 3. Weighing the Arguments Concerning Risks Some arguments we have presented concern the bank’s risk that the value of the apartment may deteriorate through use during the additional time a judicial review of unfair terms would take.124 These arguments do, however, not suggest that this possible increase of risk is significant. The same risks are present also in general, including cases where the sale of the security object takes some time for whatever other reason there may be. Other kinds of risks have to do with the role of banks in general; we have referred to them as systemic risks.125 When weighing arguments on systemic risks it is of course important to understand that these are arguments on an aggregated level. They do not directly match the arguments on the party-to-party level, and they, therefore, need to be treated as arguments from another level when it comes to a specific kind of problem in a case such as Banco Santander. This, however, does not mean that they are unimportant in regard to the possible effects of a judicial decision in a general context. If the financial system in a certain jurisdiction allows a lot of possibilities for banks to fulfil ulterior motives, besides the role they are given, a single decision that does or does not limit such possibilities can potentially be important. We think that the risks described are relevant and that they point towards also allowing a judicial review at a late stage in the bank’s process of using the security to cover the debt. However, since these arguments concern the aggregate level we need to be careful. We should not let these arguments gain weight unless we also assume that high enough number of consumers will be concerned that an effect on the macro level sets in. The assumed consequences are only one set of arguments out of many that need to be considered. 122 Cf. supra, III.C.2. sub (iii), with references in note 100. 123 Cf. supra, III.B. 124 See supra, section III.C.2. sub (v) and (viii). 125 See supra, section III.C.2. sub (iv).