Consumer standards in the Unfair Commercial Practices Directive: Can behavioural economics serve as an interpretive tool for judges?

Studia Prawa Prywatnego | 01/2016
Eleni Kaprou

§ 1. Introduction  Behavioural economics is leading the way when it comes to evidence-based policy. Its influence is growing in institutions such as the European Union1, as well as in individual Member States such as the UK, where the Behavioural Insights Team (BIT) has been established as a social purpose company, and plays a key role in policymaking2. Behavioural economics have challenged the main assumptions of neo-classical economics, seeking rather to discover how people behave, and the reasoning behind their decision-making, taking evidence from decision-making experiments into account. It is easy to see that the findings of behavioural economics are particularly relevant for consumer protection law, which seeks to regulate the relationship between trader and consumer. The concept of the consumer is at the very core of consumer law in general, and European consumer law in particular, thus any insights on consumer behaviour are much sought after.  The focus of this paper is the Unfair Commercial Practices Directive (the “Directive”), which is a key element of European consumer law3. It entered into force on 11 May 2005, with Member States having to transpose it in their national laws by 12 June 2007 (Art. 19 UCPD). Its importance is showcased by the fact that it is one of the first maximum harmonisation directives, setting both the floor and the ceiling of the level of protection that Member States have to ensure4. Previously, the majority of European directives were minimum harmonisation ones, meaning that they set a minimum standard allowing the Member States to take stricter measures to achieve additional protection5. The notable exception of the maximum harmonisation rule is that of financial services and immovable property, for which it is a minimum harmonisation directive (Rec. 9 UCPD). The Directive covers business-to-consumer commercial practices before, during and after a commercial transaction (Art. 3.1 UCPD). Its other notable characteristic is its broad scope, covering commercial practices in all the sectors of the economy.  The ambitious maximum harmonisation nature of the Directive, in addition to its wide scope, make the choice of consumer standard in the Directive highly significant. The Directive adopts the average consumer as its benchmark, thus making it the European standard. However, in spite of its importance, there is no definition of the average consumer in the text of the Directive, and the only guidance as to its meaning comes from the non-binding recitals. Furthermore, the Directive includes provisions on the protection of vulnerable consumers alongside provisions on the average consumer standard, further complicating the matter.  The interpretation of consumer standards is a task for the national courts as well as the Court of Justice of the European Union (hereafter the CJEU), though it is doubtful whether a truly European meaning of the “average consumer” has emerged. This paper argues that behavioural evidence can and should play a role when interpreting the various consumer standards in the courtroom. Even though behavioural evidence has been employed in consumer law for the design of policy, its use for the application of existing legislation (in this case the UCPD) has not been adequately considered.  The structure of the paper will be as follows: first it will examine the case law of the CJEU that has developed the concept of the average consumer. Then it will look at the aims of the Directive and how the average consumer standard reflects them. In part 2 the various standards in the Directive will be examined, and how well they work together. Part 3 will consider how behavioural economics can be introduced in the courtroom, and will look into the limitations and caveats of this approach. § 2. Background to the Directive I. Case law of the CJEU  The notion of the average consumer was not introduced in EU law in the Directive for the first time. In fact, the Directive crystallised the concept as it had emerged from the case law of the CJEU. It is important to note that these cases concerned the freedom of movement of goods, as consumer protection has been justified and forwarded by the Court through the provisions on the free movement of goods and services6. Not all the cases mentioning the “average consumer” are examined here, but only those that serve to better illuminate the meaning of the concept according to the CJEU.  The Clinique case revolved around the use of the name ‘Clinique’ for the marketing of cosmetic products in Germany7. The cosmetics company Clinique had marketed its products under the name ‘Clinique’ for years, with the exception of Germany, where the name ‘Linique’ was used, as it was considered that, under German competition law, the use of the name ‘Clinique’ would mislead consumers 60into thinking these were medicinal products. The German Court referred a question to the CJEU on whether, by prohibiting the import and marketing of goods using the name ‘Clinique’ that had been lawfully produced and marketed in other countries in order to avoid consumers being misled as to its properties, German law contravened free movement of goods as per Art. 36 TFEU. The Court ruled that the national law precluding the use of the name ‘Clinique’ was not compatible with the free movement of goods, and that there was little chance that an average consumer would be misled given that the same products were marketed in other Member States without problems.  The Mars case reveals the standard of expectations of the consumer in the case law of the CJEU8. Mars ice cream bars were marketed in Germany (and all over Europe) with wrappers marked “+10%”. The claimant argued that consumers were led to believe that the increase in the size of the product corresponded...