The notion of the average consumer in European consumer law
PhD student: Dr B.B. Duivenvoorde
Promotor: Prof M.B.M. Loos
Duration: 1/9/2009 - 31/5/2013
PhD defence: Amsterdam, 3/7/2014
Many times judges are confronted with the question whether consumers are being misled by a traders communication. This is not just the case in the context of misleading advertising and misleading trade practices, but also in cases concerning restrictions of the free movement of goods, product labeling and trade marks. Judges then face the question how they should determine whether the traders statement or description was indeed misleading. Should the misleading character of the communication be proven by consumer opinion research or by consulting an expert? Or should the judge determine the misleading character by utilizing an objective legal criterion, without conducting further research? And if the latter is the case, how should this legal criterion be formulated and applied? The German Bundesverwaltungsgericht was facing exactly this problem in the Gut Springenheide case, and decided to ask preliminary questions to the European Court of Justice, as it was facing the question in a European regulatory context. In its response the ECJ chose for an objective legal criterion, in the form of what is now known as the average consumer standard. The ECJ stated that in determining the misleading character of information given by a trader, the national court should take into account the presumed expectations which the statement evokes in an average consumer, who is reasonably well informed and reasonably observant and circumspect. Only if the national court has specific difficulties in determining the misleading character using this criterion, it can decide to conduct further research in the form of a consumer research poll or an experts report (ECJ 16-07-1998, case C-210/96, ECR 1998, p. I-4657, par. 31). In subsequent case law the ECJ somewhat refined the notion of the average consumer, by stating that cultural, social and linguistic factors should be taken into account when employing the standard (ECJ 16-09-1999, case C-220/98, ECR 2000, p. I-117, Este Lauder). Furthermore, the Unfair Commercial Practices Directive has incorporated this definition and added that apart from social, cultural and linguistic factors one should also consider the group the product is aimed at and take into account the expectations of particular vulnerable groups of consumers. The notion of the average consumer as developed in the case law of the European Court of Justice and the Unfair Commercial Practices Directive raises a number of issues. For example, does it force national courts to be less protective over consumers, as it presumes the consumer to be informed, observant and circumspect? Does it create a uniform standard for the determination of the misleading character of commercial communications or is the notion to be interpreted differently depending on the legal question at stake? And does the remark on vulnerable groups of consumers in the Unfair Commercial Practices Directive extend to all commercial communications or is its scope limited to unfair commercial practices? These questions show that the content of the notion of the average consumer and its practical consequences are far from clear. The aim of this research project is therefore to analyse the content and function of the notion of the average consumer and investigate its impact on national law. This is done, first of all, by a thorough analysis of the ECJs case law and the role of the notion in the Unfair Commercial Practices Directive. Secondly, investigation of the role of the average consumer standard in national legislation and case law should provide further understanding of the notion as well as showing the actual impact of the introduction of the notion on the national level.