5. THE ‘AVERAGE CONSUMER’ UNDER THE UCPD

Who is the 'Average Consumer'? 135

Article 16 of Directive 89/552/EEC on television broadcasting.’ Recital 19 adds that ‘[w]here 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’.

More generally the Directive, according to its Recital 7, ‘does not address legal requirements related to taste and decency which vary widely among the Member States. Commercial practices such as, for example, commercial solicitation in the streets, may be undesirable in Member States for cultural reasons. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Community law, for reasons of taste and decency even where such practices do not limit consumers’ freedom of choice. Full account should be taken of the context of the individual case concerned in applying this Directive, in particular the general clauses thereof.’ This is a distinct point, but falls within the general assessment of the scope of the Directive’s concessions to local regulatory preference.56

How to judge this? There is, of course, no pretence here that there is an actual ‘average consumer’ on whom to rely: this is an attempt to navigate a course between the rich diversity of actual consumer behaviour and the need for an operational regulatory benchmark. That may be artificial, but in devising a harmonised system of regulation to underpin an integrated European market it is unavoidable.57 It is much the same game that the Court plays in applying the Treaty rules on free movement. In my opinion Article 5(3) should be read with reference to the Court’s case law under Article 28 EC which accepts that a system of consumer protection which can be shown to target protection of a particular group of consumers should be assessed on its own terms, and should not be swept aside on an unthinking application of the broad ‘average consumer’ test. That is to say, if the law is not designed to deal with a problem which would concern the average consumer, it must not be assessed as if it were so designed. This, of course, does not mean that the Court will not look hard at the claims made in support of the law. Frequently, as the case law examined above reveals, the claimed advantages of national measures do not stand up to close scrutiny. But in principle a regulator can advance arguments designed to show the inappropriateness of the ‘average consumer’ test as a basis for reviewing

56Stuyck, Terryn and Van Dyck, above n 18, at 122–123; Wilhelmsson, above n 39, at 222–5.

57Cf on regulatory technique F Gomez, ‘The Unfair Commercial Practices Directive: A Law and Economics Perspective’ (2006) 2 European Review of Contract Law 4.

136 Stephen Weatherill

a particular challenged measure, and the Court will in principle be receptive to such contextual arguments. This, I submit, is how Article 5(3) should be read. It serves as an invitation to the regulator to demonstrate just how and why a particular practice should be suppressed as incompatible with the Directive’s control even though it is a practice that would not distort the behaviour of the ‘average consumer’ in the general population. So the Directive—as EC consumer law generally, in both legislative and judicial practice—is not blind to the needs of particular disadvantaged or vulnerable groups. Quite the contrary: it accepts the place of such targeted measures of consumer protection. It requires only that choice made by regulators be properly explained and justified, under an assumption which holds that national measures which restrict cross-border trade require such justification because, by impeding market integration, they damage the consumer interest in a more efficiently functioning market which delivers wider choice and competition on price and quality. But, it is submitted, if there are good reasons for asserting that particular practices harm a clearly identifiable group of vulnerable or disadvantaged consumers, then the pattern of EC law—in the case law of the Court and in the legislative practice considered above—amply supports the view that it is that group which should form the focus of assessment, not an abstract ‘average consumer’. And in this way the Directive would not be used to slice away legitimate consumer protection in niche areas.

So far, so optimistic. But does Article 5(3) really lend itself to this interpretation? The features of vulnerability to which it chooses to draw attention are ‘mental or physical infirmity, age or credulity’. What of educational attainment? Income? Ethnicity? There is a considerable amount of empirical research into patterns of consumer deception and the list in Article 5(3) has convincingly been described as ‘quite arbitrary’ in its restrictive approach by Stuyck, Terryn and Van Dyck, who call for empirical inquiry into the correlation between the characteristics of certain groups of consumers and the likelihood of vulnerability to particular practices.58 I agree with this. Evidence of the particular effect of a practice will have to be advanced.59 But it is important that the Directive be interpreted in a way that is receptive to the whole range of possible vulnerabilities and disadvantages with which particular groups of consumers are burdened. As a matter of detailed interpretation, the way to achieve this under Article 5(3) of the Directive is to take a broad view of what may be regarded as ‘credulity’. This should be taken to cover, for example, consumers’ ‘emotional’ foibles.60 More

58Stuyck, Terryn and Van Dyck, above n 18, at 121–2.

59Cf discussion of the absence of such evidence in the Duchesne case initiated by the UK’s Office of Fair Trading before the courts in Belgium, discussed by HW Micklitz ‘Transborder Law Enforcement—Does it Exist?’ in this book.

60Cf Incardona and Poncibo, above n 38.