Page - 122 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 122 However, these statements are also repeated when the matter of the new case resembles the old one to a limited extent only. The Court needs to start from somewhere. This, evidently, creates a risk that generalisations consolidate (as usually desired by lawyers), while differences as to the facts and interests involved tend to be overlooked. Steps 1 and 2 help to sharpen a lawyer’s awareness of these differences and the ability to transform them into (different) legally relevant questions, or ‘real issues’, with potentially different impacts on the principle of effectiveness. V. Conclusive Remarks This article has dealt with potential conflicts that may arise between national property law and EU law; in particular, with the requirement of effective application of the UCTD. According to several substantial segments of argumentation presented by the CJEU in its recent Case C-598/15 Banco Santander, the acquisition of ‘ownership’ of a mortgaged property in a forced sale may form a strict barrier to the review of potentially unfair contract terms in the mortgage agreement. We have attempted to show that this perception of the conflict between different norms (national versus European) is heavily determined by a thinking process built on the concept of an absolute right of ‘ownership’. We have suggested using a ‘functional approach’ instead. This approach was, first, presented in an abstract manner and by way of a step-by-step instruction. Second, we have tried to exemplify this approach by applying it to a factual setting similar to the Banco Santander case. We hope that we have, thereby, managed to show that this functional approach offers an appropriate methodological framework to deal with the potentially conflicting norms and the interests of the parties involved in the conflict. We also hope it has become apparent that a functional approach fits rather well into the argumentative process of the CJEU when it comes to determining the appropriate scope of the principle of effectiveness of consumer contract law directives. What we have presented here are suggestions, a methodological contribution of academics to the common goal of enhancing judicial decision-making. We did not show that the CJEU decided the Banco Santander case in the wrong way. As mentioned, we did not base our analysis on the full set of facts, nor did we delve into the full complexity of Spanish procedural law (which the CJEU did not do either).141 However, it is important to stress that the result achieved by the CJEU should not be overestimated when viewed from the perspective of other European legal systems. As pointed out in the course of our analysis, the Court’s argumentation does not include the idea of a ‘causal’ transfer of property rights, under which the acquisition of ownership may be flawed, and hence be rendered ineffective, because of unfair contract terms in the underlying mortgage agreement. Neither does the Court’s judgement offer any direct guidance for procedures under other national laws where the claimant is required to prove the rightful acquisition of ownership (as under the traditional rei vindicatio): the specific Spanish summary procedure applied in the present case does not offer any possibility to raise the issue of the claimant’s rightful acquisition.142 Had this aspect been different, 141 See section I.C. 142 See sections I.C., III.A. sub (ii) and III.C.1. sub (ii).