Imprints of behavioural research in EU consumer protection legislation: the ‘average consumer test’ in the Unfair Commercial Practices Directive

The EU legislator’s main concern with Directive 2005/29 has been to facilitate intra-Community trade and liberalise unfair competition law in EU Member States. This is evident both in the exhausting list of per se unfair commercial practices in Annex I of the Directive, as well as in the ‘average consumer test’, based on which the unfair character of any other commercial practice is assessed. The EU legislator evaluates the traders’ behaviour by taking as a reference point a notional consumer who is rational, perceptive and discerning. Thus, it has become more difficult for a commercial practice to be deemed unfair. It is argued that this stance sacrifices the real needs of consumers for the benefit of European integration. Modern consumer protection law should take into account consumers’ diversity, instead of levelling their particularities on the basis of judicial presumptions. It is therefore suggested that the notion of the average consumer should be re-considered in light of behavioural science findings. This study endeavours to ‘de- demonise’ the average consumer model. It conducts a critical review of Directive 2005/29 to draw attention on certain provisions, on the basis of which court decisions can be customised in any given case to the individualities of marketing’s actual addressees.