The notion of the average consumer in EUlaw

Within the contemporary EU, it is generally accepted that the consumer needs special legal protection, in particular to ensure product safety and to rebalance inequalities between consumers and companies in market knowledge and bargaining power.^[1] It is, however, difficult to determine both what level and what kind of protection is adequate for the consumer in the increasing multilevel cross-border market.^[2] A reason for this is that groups of consumers are not homogeneous, as they have different expectations, depending on their tastes, cultural backgrounds, and social position.^[3]

A number of scholars argue that European consumer law is still lacking a conclusive and coherent core.^[4] It is commonly recognized that EU law and the law of the Member States do not have a unique definition of the consumer.

Despite this, it is possible to identify common elements across several consumer directives which may be used to delineate a common notion of the consumer.^[5] Furthermore the ECJ case law has provided a more concrete idea of the consumer: the consumer is a natural person, who, in transactions, is acting for purposes which can be regarded as being outside his or her trade or profession.^[6] This distinguishes the consumer from a company and from an employee.

In turn, the EU legislators and judges apply a broad definition of the professional person or entity that sells products or services to consumers. The professional is a person who acts within the framework of his or her commercial or professional activity. It thus seems that all businesses are included from the moment they act in their usual activity, independently of their dimensions or the nature of their activity. The professional has to respect, among other things, both the health and safety, and the economic interests of the consumer, and engage in fair market behaviour.^[7]

Furthermore, the ECJ follows an approach which depends on the aim of the legislative act, and generally applies a restrictive interpretation of the consumer model. The ECJ constantly refers to ‘the average consumer’,^[8] who is reasonably well informed and reasonably observant and circumspect.^[9] However, in some cases, the ECJ has also recognized the ‘vulnerable consumer’, who requires a higher level of protection in particular circumstances. For example, in Buet the Court upheld a French law prohibiting doorstep selling of educational materials, although it constituted an obstacle to free movement of goods.^[10]

In order to understand the interrelation between consumer law in the EU and in its Member States, the next section explores the competence of the EU to regulate consumer law.

• [1] For a detailed analysis see H.-W. Micklitz , N. Reich , & P. Rott , Understanding EU ConsumerLaw (Antwerp: Intersentia, 2009).
• [2] See e.g. V. Mak, ‘Two levels, one standard? The multi-level regulation of consumer protectionin Europe’ in J. Devenney and M. Kenny (eds), European Consumer Protection: Theory and Practice(Cambridge: CUP, 2012), pp. 21 et seq.
• [3] See e.g. T. Wilhelms son, ‘The Average European Consumer: A Legal Fiction’, inT. Wilhelmsson, E. Paunio. A. Pohjolainen (eds), Private Law and the Many Cultures of Europe(Alphen aan den Rijn: Kluwer Law International, 2007), pp. 243-68.
• [4] W Faber, ‘Elemente verschiedener Verbraucherbegriffe in EG-Richtlinien, zwischen- staatlichen Ubereinkommen und nationalem Zivil- und Kollisionsrecht’ , (1998) , p. 854; more generally see: N. Reich, ‘A European Concept of Consumer Rights: Some Reflectionson Rethinking Community Consumer Law’, in Liber Amicorum Bernd Stauder, Consumer Law(Baden-Baden: Nomos, 2006), pp. 431 et seq.
• [5] For instance, the directives on contracts concluded away from business premises, consumercredit, unfair contract terms, and time-sharing; Stuyck, ‘European Consumer Law after the Treatyof Amsterdam’ (n 31), p. 376.
• [6] See e.g. Case C-269/95, Francesco Benincasa v Dentalkit Srl [1997] ECR I-3767, paras 17-19of the judgment.
• [7] D. Fasquelle & P. Meunier, Le droit communautaire de la consommation: Bilan et perspectives(Paris: Documentation Fran?aise, 2002), p. 12.
• [8] Regarding the application of this concept in unfair commercial practices see R. Incardona &C. Poncibo, ‘The Average Consumer, the Unfair Commercial Practices Directive and the CognitiveRevolution’, (2007) 30 J Consumer Policy, pp. 21-38.
• [9] See e.g. Case C-210/96, Gut Springenheide GmbH, Rudolf v Oberkreisdirektor des KreisesSteinfurt [1998] ECR I-4657, para. 37.
• [10] Case C-382/87 Buet and Educational Business Services (EBS) v Ministere Public [1989] ECR1235, para. 13.