Page - 119 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 119 thought process suggested by the ‘functional approach’ when it comes to solving legal issues concerning (national) property law and EU consumer law. To illustrate this, we have, in the course of our analysis, disqualified some of the bearing arguments that were used by the CJEU and the AG. We have also developed arguments that point in the opposite direction. On balance, and within the limited facts we have opted to base our research task on, the arguments for solving the ‘real issue’ in favour of the consumer seem to prevail. Where the conflict is still only between the consumer-mortgagor and the bank as the acquirer of the former security object, a judicial review of potentially unfair terms in the security agreement need not at all be excluded. A possible result of the analytic process we have described is rather that such a judicial review should be allowed where the consumer herself asks the court to conduct it. There should arguably even be a duty on the national court to review the contract terms of its own motion where the following two conditions are met: First, the general preconditions for such ex officio review must be met – in the words of the CJEU: where the national court “has available to it the legal and factual elements necessary for that task”.130 Second, adopting such a duty would require that there has not yet been any adequate possibility for the consumer to raise objections herself or for a court to start a review of its own motion131 (or the previous court failed to comply with its duty). The main arguments for this solution are that the bank’s interests are impaired to a very small extent, whereas the consumer can potentially benefit considerably and the general goal of preventing the continued use of unfair terms is served in the best way possible. To what extent national law can exercise a limitative effect on this functioning of the Directive does not depend on whether the bank has acquired ‘ownership’ in a two-party conflict like in Banco Santander. Rather, variations as to the ‘operating distance’ of the Directive may, for instance, follow from the degree of a transfer’s dependency on the underlying obligation under national law (causal transfer system or other). Interestingly, this feature of national property law – i.e., taking into account a defect in the contract between the two parties involved – appears to be an aspect of rather relational character. IV. Impact on the Understanding of the EU Law Principle of Effectiveness We hope that the foregoing analysis managed to show that solving the issue raised in Banco Santander does not require drawing heavily on dogmatic concepts such as ‘ownership’, ‘rights in rem’, or specific types of procedures as established by national law. Rather, approaching the issue functionally suggests that formal categorisations of rights or procedures should not dominate the argumentation, particularly where they would become relevant only in a conflict between these two parties who happen to be the addressees of a specific EU consumer contract law directive. The approach we have applied narrows down the discussion to the parties involved and the interests that are actually at stake. At the same time it attempts to broaden the discussion to any kind of 130 See, among many others, CJEU, Case C-40/08 Asturcom paras. 53 and 59. 131 Cf. the formulation of the ‘real issue’ with its variations (a) and (b) supra, III.B. at note 78.