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Can Ownership Limit the Effectiveness of EU Consumer Contract Law Directives? A Suggestion to Employ a ‘Functional Approach’

Journal article
Authors Wolfgang Faber
Claes Martinson
Published in Austrian Law Journal
Volume 2019
Issue 1
Pages 85-123
ISSN 2409-6911
Publication year 2019
Published at Department of Law
Pages 85-123
Language en
Keywords ownership, functional approach, Unfair Contract Terms Directive 93/13/EEC, principle of effectiveness, mortgage contract, enforcement procedure, EU consumer contract law
Subject categories Private law


Does the acquisition of ownership form a strict barrier to the application of EU consumer contract law rules? In particular: does the acquisition of ownership prevent a national court from reviewing unfair terms in a mortgage agreement? The CJEU said so in its recent judgement C-598/15 Banco Santander, where a bank itself acquired a mortgaged apartment in a forced sale. We consider this a too formal way of reasoning. In order to make a constructive suggestion of a better suited methodological alternative, we contrast this view by applying a ‘functional approach’ as developed in property law (especially Nordic and American). A ‘functional approach’ deals with each type of conflict directly and on its own merits, by involving various kinds of arguments relevant for the specific conflict without making the decision depend on broad general concepts like ‘ownership’. We conclude that this kind of approach offers an appropriate framework, in particular for the difficult task of determining the scope of the ‘principle of effectiveness’ of consumer contract law directives.

Page Manager: Webmaster|Last update: 9/11/2012

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