Page - 123 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 123 much more would speak for a solution where the (flawed) acquisition of ownership does not provide closure. There are three more clarifications we would like to add. First, the functional approach employed in this article can be applied irrespective of how a specific national property law regime is designed. It is true that the approach is inspired by substantive Nordic and American laws, but this does not make it incompatible with other substantive property law regimes, including those where the concept of absolute rights in rem plays a central role. The kind of problem discussed in this article is, after all, not one of national property law. The problem emerges at the intersection of national property law and the requirement of effectively applying EU consumer contract law, where the question arises to what extent and at which point the one can limit the other. This is a matter of balancing. The functional approach is a tool for carrying out a balancing process in an open and reflected manner. Second, following this argumentation, it should be stressed that promoting a functional approach for the process described is not a (hidden) attempt to change national property laws that have not adopted this approach. National law may retain or adopt whatever approach national lawmakers prefer.143 Our only intent is to show that the functional approach’s way of reasoning and structuring problems is a useful method where the EU law principle of effectiveness clashes with national law. Third, the fact that we have applied the functional approach to a mere two-party situation inspired by the Banco Santander case should not be understood as an indication that this approach would, as such, be limited to two-party situations. It could, with advantage, also be used in settings where a third party is involved. Then the ‘real issue’ would be a different one. 143 See also section I.C. sub (iii).