The Emergence of the Notion of the Vulnerable Consumer

European consumer law has been built following the liberal approach of the law, where the market is the appropriate regulatory tool. This conception considers the consumer as a rational economic agent who, when properly informed, can optimize his interest and reap benefits from the internal market realization. The reference model is therefore the one of the 'average consumer' i.e., a consumer 'reasonably well informed and reasonably observant and circumspect'[1], as defined

by the European Court of Justice (ECJ).[2] However, to protect consumers who are particularly exposed to unfair commercial practices, Directive 2005/29 has set out, next to the model of the 'average consumer', the new category of 'vulnerable consumers'.[3] This innovation[4] was not really followed by a general theory surrounding this new concept that embraces diverse realities (A). For this reason, it could be concluded that there is only a fragmented consideration of the vulnerable consumer (B).

A Plurality of Vulnerable Consumers in EU Consumer Law

Directive 2005/29 pays particular attention to vulnerable consumers. Thus, Recital 18 states that the Directive 'contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices'. Recital 19 states that where certain characteristics such as age, physical or mental infirmity or credulity make consumers particularly susceptible to a commercial practice or to the underlying product and the economic behaviour only of such consumers is likely to be distorted by the practice in a way that the trader can reasonably foresee, it is appropriate to ensure that they are adequately protected by assessing the practice from the perspective of the average member of that group.

As a result, when business practices are targeting a particular category of vulnerable consumers, the unfairness is assessed in terms of the average capacity of discernment of the category in question.[5]

EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Text with EEA Relevance), OJ L 149, 11.6.2005, p. 22-39 (UCP Directive).

But when the criteria are analysed for identifying persons likely to be classified as 'vulnerable', it should be noted that this category is eclectic. Article 5.3 of Directive 2005/29 refers to consumers who are particularly vulnerable 'to the practice or the underlying product because of their mental or physical infirmity, age or credulity'.[6] Natural deficiencies due to a mental or physical disability, cognitive deficiencies and situations of weakness due to youth or old age,[7] are thus considered at the same level. In this respect, the real cause of disability does not matter. Indeed, the cause could be endogenous, exogenous, natural or the result of social maladjustment, or it could be permanent or temporary. What matters is its manifestation, i.e., the loss or lack of autonomy in consumption choices - thus, according to Xavier Lagarde, 'persons in a pathological situation or out of the ordinary, who are not able to properly exercise their rights and freedoms, are thus vulnerable ones'.[8] But being considered as an easy prey is not enough to qualify a business practice as unfair. A requirement of 'foreseeability' must be added.

All business practices misleading vulnerable consumers are not de facto unfair: the negative impact of an unfair business practice on a category of vulnerable consumers must be predictable by professionals[9] within the meaning of Article 5.3 of Directive 2005/29. The caution expected from the professional has to remain within a reasonable frame and should not integrate irrational consumers' reactions of extreme naivety or ignorance.[10] the European Parliament and of the Council ('Unfair Commercial Practices Directive'), Brussels, 14.3.2013, COM (2013) 139 final.

Since the adoption of Directive 2005/29, the notion of vulnerable consumers has become widespread and appears as a counterpoint to the notion of the average consumer in the texts defining the contours of EU consumer policy.[11] Thus, the Communication of the Commission 'A European Consumer Agenda' of May 2012[12] reports the economic and social evolution, emphasizing the increased risk of social exclusion in times of economic crisis in the context of digital revolution. The Commission states that this risk is amplified by the aging of the population. Decreasing the division between vulnerable consumers and others appears as a necessity.[13]This requirement is also highlighted in the future Consumer Programme for the period 2014-2020.[14] Thus, the Council adopted without debate on 18 June 2012 a general approach on the proposal for a regulation and in particular the fourth objective, aimed to improve the education and information of consumers, while adding a reference to the specific needs of 'young consumers, old consumers and vulnerable consumers'. The attention consistently given to vulnerable consumers shows the rooting of the concept in European consumer law.

However, this recognition is not accompanied by a homogenization of the concept of vulnerability. As underlined by European Parliament Resolution of 22 May 2012 on a strategy for strengthening the rights of vulnerable consumers,[15] the diversity of vulnerable situations, both when consumers are placed under statutory protection and when they are in a specific situation of sectoral or temporary vulnerability, hinders a uniform approach and the adoption of a comprehensive legislative instrument, which has thus led the existing legislation and policies in place to address the problem of vulnerability on a case-by-case basis; stresses, therefore, that European legislation must address the problem of vulnerability among consumers as a horizontal task, taking into account consumers' various needs, abilities and circumstances.

Therefore, this diversity of causes of vulnerability corresponds to a variety of texts protecting vulnerable consumers.

  • [1] Art 5.2 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/
  • [2] ECJ Case law C-210/96, Gut Springenheide and Tusky, Rec. 1998, p. I-4657, point 31; see also for Community Trade Marks, ECJ, 6 September 2012, August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Case C-96/11 P., ECR 2012, pt 39.
  • [3] S Weatherill, 'Who Is the "Average Consumer"?', in S Weatherill and U Bernitz (eds), The Regulation of Unfair Commercial Practices under EC Directive 2005/29 - New Rules and New Techniques (Oxford: Hart Publishing, 2007) 115.
  • [4] Concern for the possible exploitation of the economically weaker party is visible in some directives (e.g., misleading advertising is prohibited by Directive 84/450), but these directives do not refer to the 'vulnerable consumer'; S Weatherill, 'Who Is the "Average Consumer?"' 122.
  • [5] Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee, First Report on the Application of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/ EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of
  • [6] The list in art 5(3) has been described as 'quite arbitrary' in its restrictive approach: S Weatherill, 'Who Is the "Average Consumer"?', in S Weatherill and U Bernitz (eds), The Regulation of Unfair Commercial Practices under EC Directive 2005/29 -New Rules and New Techniques (Oxford: Hart Publishing, 2007) 115 (136) ('What of educational attainment? Income? Ethnicity?'); R Incardona and C Poncibo, 'The Average Consumer, the Unfair Commercial Practices Directive, and the Cognitive Revolution' (2007) 30 J.Consum Policy 21-38 (n 38) ('It lacks practical and logical foundations'); J Stuyck, E Terryn and T Van Dyck, 'Confidence through Fairness ? The New Directive on Unfair Business-to-Consumer Commercial Practices in the Internal Market' (2006) 43 CMLRev 107, at 121-122 ('It would have been - and still is - recommended to conduct sound empirical research, at EC level, about correlation between the characteristics of certain groups of consumers and the likelihood of being specifically vulnerable for certain commercial practices').
  • [7] Merlyn A Griffiths and Tracy R Harmon, 'Aging Consumer Vulnerabilities Influencing Factors of Acquiescence to Informed Consent' (2011) 25(3) Journal of Consumer Affairs 445-166; George P Moschis, Jill Mosteller and Choong Kwai Fatt, 'Research Frontiers on Older Consumers' Vulnerability' (2011) 25(3) Journal of Consumer Affairs 467-491.
  • [8] X Lagarde, foreword in the Cour de cassation 2009 annual report, www
  • [9] Art 5.3 of the UCP Directive.
  • [10] Commission Staff Working Document, Guidance on the Implementation/ Application of the Directive 2005/29 on Unfair Commercial Practices, SEC (2009) 1666, 30.
  • [11] See also Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on Consumer Rights, Amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council Text with EEA Relevance, OJ, L 304 , 22/11/2011 P. 0064 - 0088 (Recital (34) 'The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance or off-premises contract, a contract other than a distance or an off-premises contract, or any corresponding offer. In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection'); V Mak, 'Standards of Protection: In Research of the "Average Consumer" of EU Law in the Proposal for a Consumer Rights Directive' (2011) 19(1) European Review of Private Law 25—42.
  • [12] Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions A European Consumer Agenda - Boosting Confidence and Growth.
  • [13] Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions A European Consumer Agenda - Boosting Confidence and Growth, 6: 'Social exclusion, vulnerable consumers and accessibility - Wherever the economic and sovereign debt crisis has struck, it has dented consumer confidence and, for some consumers, led to a very significant fall in income or purchasing power, thus increasing the risk of social exclusion and the risk that citizens are unable to afford essential goods and services. These risks are heightened by the fact that our population is ageing, markets are becoming increasingly complex and some people may neither have the opportunity nor the ability to master the digital environment. The question of accessibility is key to reaping the benefits of digital change in the physical, digital and economic senses. The current context may also exacerbate the disadvantaged situation of vulnerable consumers, such as people with disabilities or with reduced mobility, who face difficulties in accessing and understanding information and in finding appropriate products and services on the market.'
  • [14] Proposal for a Regulation of the European Parliament and of the Council on a Consumer Program 2014-2020 {SEC (2011) 1320 final} {SEC (2011) 1321 final}.
  • [15] European Parliament resolution of 22 May 2012 on a strategy for strengthening the rights of vulnerable consumers (2011/2272[INI]).
 
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