Abstract
The consumer benchmarks in the Directive present significant shortcomings in terms of all of the Directive’s goals. In relation to the goal of achieving a high level of consumer protection this follows from the fact that the average consumer benchmark focuses on protection of the average rather than the sub-average consumer and from the fact that that the application of the average consumer benchmark by the CJEU imposes high expectations as to the average consumer’s behaviour. Although the target group and vulnerable group benchmarks were meant to provide additional protection, their potential to do so is limited. As to the objective to increase the smooth functioning of the internal market , the benchmarks so far fail to remove barriers to trade. Although Germany, England and Italy have all adopted the CJEUs average consumer benchmark, none of them follow the strict interpretation of the average consumer benchmark of the CJEU. Moreover, there are still significant differences between the application of the consumer benchmarks in the Member States investigated. This also presents problems in terms of consumer confidence, as the idea is that this should improve with uniform protection throughout Europe. Moreover, consumer confidence is not likely to benefit from the shortcomings in terms of the level of protection of the consumer benchmarks as have been identified above. In relation to improving competition, the regime of consumer benchmarks in the Directive is generally effective in preventing over-protection . However, in terms of preventing unfair practices that harm competition, the Directive’s regime of consumer benchmarks is less effective.
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Notes
- 1.
See Article 1 Directive and paragraph 2.3 of this book.
- 2.
See paragraph 1.4.4 of this book.
- 3.
See also Recitals 1 and 5 Preamble. See on this goal of the Directive also G Howells, H Micklitz and T Wilhelmsson, European fair trading law; the Unfair Commercial Practices Directive (Aldershot, Ashgate, 2006) 247–250.
- 4.
Also EU consumer law in general lacks a clear rationale of consumer protection. See for further discussion, e.g., J Stuyck, ‘European consumer law after the Treaty of Amsterdam: consumer policy in or beyond the internal market? (2000) Common market law review 367, I Ramsay, Consumer law and policy (Oxford, Hart, 2012) (in particular Chap. 2) and H Micklitz, ‘The expulsion of the concept of protection from the consumer law and the return of social elements in the civil law: a bittersweet polemic’ (2012) Journal of consumer policy 283.
- 5.
See the case law of the CJEU discussed in Chap. 3 of this book. In the context of the CJEU free movement of goods case law, the average consumer benchmark played an important role in the liberalisation and the enhancement of open markets, which also underlies the Unfair Commercial Practices Directive. See also U Bernitz, ‘The Unfair Commercial Practices Directive: its scope, ambitions and relation to the law of unfair competition’, in S Weatherill and U Bernitz (eds), The regulation of unfair commercial practices under EC Directive 2005/29 (Oxford, Hart 2007) 37.
- 6.
See also J Trzaskowski, ‘The Unfair Commercial Practices Directive and vulnerable consumers’ (Paper for the Conference of the International association of consumer law in Sydney, 2013) 1–2.
- 7.
See similarly J Nehf, ‘Misleading and unfair advertising’, in G Howells et al (eds), Handbook of research on international consumer law (Cheltenham/Northampton, Edward Elgar, 2010) 110.
- 8.
See paragraph 14 of the Directive’s black list (Annex 1 to the Directive).
- 9.
Office of Fair Trading v Purely Creative Ltd Industries [2011] EWHC 106. See the discussion on this case in paragraph 6.5.3 of this book.
- 10.
See Chap. 3 of this book.
- 11.
See paragraph 9.3 of this book.
- 12.
See also European Consumer Consultative Group 2013, p. 8, R Incardona and C Poncibò, ‘The average consumer, the unfair commercial practices directive, and the cognitive revolution’ (2007) Journal of consumer policy 21 and J Trzaskowski, ‘The Unfair Commercial Practices Directive and vulnerable consumers’ (Paper for the Conference of the International association of consumer law in Sydney, 2013).
- 13.
O Bar-Gill, Seduction by contract: law, economics and psychology in consumer markets (Oxford University Press, 2012) 2.
- 14.
See paragraph 9.4 of this book.
- 15.
The view of the European Economic and Social Committee (EESC) that the average consumer benchmark will make the Directive to ‘lose its protective nature’ is telling in this context. See OJ C 108/81, par. 3.6. See also paragraph 2.4 of this book.
- 16.
G Howells, H Micklitz and T Wilhelmsson, European fair trading law; the Unfair Commercial Practices Directive (Aldershot, Ashgate, 2006) 248–249.
- 17.
See paragraph 2.4 of this book.
- 18.
See for a more flexible interpretation of the vulnerable group benchmark the discussion on Italian law in Chap. 7.
- 19.
See paragraphs 2.7 and 4.4 of this book.
- 20.
See the discussion in the previous chapter.
- 21.
See also T Wilhelmsson, ‘The informed consumer v the vulnerable consumer in European unfair commercial practices law—a comment’, in G Howells et al (eds), The yearbook of consumer law 2007 (Aldershot, Ashgate, 2007) 218.
- 22.
In this context, it must be noted that other vulnerable groups than those mentioned in Article 5(3) Directive can also be identified as being particularly vulnerable, but for these groups it is likely to be even more difficult to qualify as being ‘clearly identifiable’, and their vulnerability is less likely to be ‘reasonably foreseeable’ to the trader.
- 23.
See the comparative overview of the application of the consumer benchmarks in Chap. 8 of this book.
- 24.
See Chap. 5 of this book, and in particular BGH 20 October 1999, I ZR 167/97, WRP 2000, 517—Orient-Teppichmuster.
- 25.
See Chap. 6 of this book, and the cases Office of Fair Trading v Purely Creative Ltd Industries [2011] EWHC 106 and Office of Fair Trading v Ashbourne Management Services [2011] EWHC 1237.
- 26.
See Chap. 7 of this book.
- 27.
E.g., Recitals 4 and 13 of the Preamble to the Directive. See also G Howells, H Micklitz and T Wilhelmsson, European fair trading law; the Unfair Commercial Practices Directive (Aldershot, Ashgate, 2006) 250–253.
- 28.
See, again, Recitals 4 and 13 of the Preamble to the Directive. See also G Howells, H Micklitz and T Wilhelmsson, European fair trading law; the Unfair Commercial Practices Directive (Aldershot, Ashgate, 2006) 244–247.
- 29.
The objective of achieving economic growth is mentioned in the European Parliament’s First Reading, p. 45. See also the Commission in the Extended Impact Assessment preceding the Directive, SEC (2003) 724, p. 4: ‘The resulting low levels of cross border transactions limit consumer choice, reduce competitive pressure for efficient pricing and represent a lost opportunity in terms of economic growth.’
- 30.
Recital 3 Preamble.
- 31.
Recital 4 Preamble.
- 32.
- 33.
F Gomez, ‘The Unfair Commercial Practices Directive: a law and economics perspective’ (2006) European review of contract law 15–16. See also H Collins, ‘EC regulation of unfair commercial practices’, in H Collins (ed), The forthcoming Directive on Unfair Commercial Practices (The Hague, Kluwer Law International, 2004) 14.
- 34.
See the Extended Impact Assessment, SEC (2003) 724, p. 8.
- 35.
See, for example, CJEU 6 July 1995, Case C-470/93, ECR 1995, p. I-1923 ( Mars) and the other cases discussed in Chap. 3 of this book.
- 36.
See Chap. 5 of this book.
- 37.
See the discussion in paragraph 4.2 of this book.
- 38.
See paragraph 4.6 of this book.
- 39.
See paragraph 4.5 of this book.
- 40.
See on the application of the average consumer benchmark in trademark law paragraph 3.3 of this book. See on the differences also Chap. 4 of this book.
- 41.
See the discussion in paragraph 4.4 of this book.
- 42.
For example, Italian law would seem quite far removed from application of the CJEU average consumer benchmark, despite the fact that its unfair commercial practices regulation changed significantly as a result of EU law,
- 43.
Recital 4 Preamble.
- 44.
See, for example, the Commission’s proposal for the Unfair Commercial Practices Directive, COM (2003) 356 final, p. 4. The idea that harmonisation (be it by minimum standards or by full harmonisation) is expected to increase cross-border shopping in this way is strongly criticised, see e.g., T Wilhelmsson, ‘The abuse of the “confident consumer” as a justification for EC consumer law’ (2004) Journal of consumer policy 317.
- 45.
The Commission in this context talked about ‘harmonising regulation of unfair commercial practices at a level which provides a high enough level of consumer protection to justify consumer confidence’. See the Commission’s Extended Impact Assessment preceding the Directive, SEC (2003) 724, p. 2.
- 46.
This may reduce consumer confidence in general, and may be particularly harmful in relation to cross-border shopping, taking into account that consumers can rely less on trust and reputation and the trader is more difficult to reach if anything goes wrong.
- 47.
See Article 1 Directive.
- 48.
See also the goals discussed by Gomez in his economic analysis of the Unfair Commercial Practices Directive. See F Gomez, ‘The Unfair Commercial Practices Directive: a law and economics perspective’ (2006) European review of contract law 4.
- 49.
SEC (2009) 1666, p. 6.
- 50.
Recital 8 of the Preamble to the Directive. See also paragraph 2.3 of this book.
- 51.
- 52.
See also R van den Bergh and M Lehmann, ‘Informationsökonomie und Verbraucherschutz im Wettbewerbs- und Warenzeichenrecht’ (1992) GRUR Int. 593. See also A MacCulloch, ‘The consumer and competition law’, in G Howells et al (eds), Handbook of research on international consumer law (Cheltenham/Northampton, Edward Elgar, 2010) 90–91.
- 53.
F Gomez, ‘The Unfair Commercial Practices Directive: a law and economics perspective’ (2006) European review of contract law 8.
- 54.
See, for example, P Nelson, ‘Advertising as information’ (1974) Journal of political economy 729 and R Pitofsky, ‘Beyond Nader: consumer protection and the regulation of advertising’ (1977) Harvard law review 661. See also I Ramsay, Advertising, culture and the law (London, Sweet & Maxwell, 1996) 21–30.
- 55.
- 56.
See also R van den Bergh and M Lehmann, ‘Informationsökonomie und Verbraucherschutz im Wettbewerbs- und Warenzeichenrecht’ (1992) GRUR Int. 597. The authors therefore prefer that average consumer benchmark over the benchmark of the less than averagely informed, observant and circumspect consumer.
- 57.
CJEU 9 November 2010, Case C-540/08, ECR 2010, p. I-10909 ( Mediaprint). See paragraph 103 of the Opinion.
- 58.
F Gomez, ‘The Unfair Commercial Practices Directive: a law and economics perspective’ (2006) European review of contract law 27.
- 59.
R van den Bergh and M Lehmann, ‘Informationsökonomie und Verbraucherschutz im Wettbewerbs- und Warenzeichenrecht’ (1992) GRUR Int. 593, 596.
- 60.
See also R Sack, ‘Die relevante Irreführung im Wettbewerbsrecht’ (2004) Wettbewerb in Recht und Praxis 526.
- 61.
F Gomez, ‘The Unfair Commercial Practices Directive: a law and economics perspective’ (2006) European review of contract law 8.
- 62.
Ibid.
- 63.
Ibid.
- 64.
See on the relationship between the corrective force of the market and types of products and services also R van den Bergh and M Lehmann, ‘Informationsökonomie und Verbraucherschutz im Wettbewerbs- und Warenzeichenrecht’ (1992) GRUR Int. 588.
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Duivenvoorde, B. (2015). Assessment. In: The Consumer Benchmarks in the Unfair Commercial Practices Directive. Studies in European Economic Law and Regulation, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-13924-1_11
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