Attentive searchers or lazy users? – The development and types of the image of the average consumer in European Union law

Nowadays the people can easily fulfil their wishes via various online platforms, websites in just a few seconds. However, in the midst of fulfilling said desires, the average consumer can easily become a victim of a scam; a topic we have already discussed in a previous article on practices commonly referred to as “dark patterns”. Therefore, it is worth asking what kind of behavior should be expected from consumers in order to be able to say that they have done everything expected, and can we talk about consumer groups that need to be protected in particular? Read more… (Dominik Boros)

Nowadays the people can easily fulfil their wishes via various online platforms, websites in just a few seconds. However, in the midst of fulfilling said desires, the average consumer can easily become a victim of a scam; a topic we have already discussed in a previous article on practices commonly referred to as “dark patterns”.^[1] Therefore, it is worth asking what kind of behavior should be expected from consumers in order to be able to say that they have done everything expected, and can we talk about consumer groups that need to be protected in particular?

What is a consumer?

“Consumers are key market actors because their consumer decisions – manifested in their choices between certain products (services) and enterprises – fundamentally affect the outcome of economic competition and thus, the efficient functioning of the market.”^[2] If we examined the definition of consumers in the EU legislation and cases, the consumer is “a natural person acting for purposes outside of his/her independent occupation and economic activity”^[3].

The classic model of consumers

The first concept is from the Mars and Gut Springheide^[4] cases (and it is widely used in the European Court of Justice), that an average consumer is well informed and is able to make decisions independently. As the Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market (hereinafter „UCP Directive”) says: „this Directive takes as a benchmark the average consumer, who is reasonably well informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the European Court of Justice (hereinafter ECJ) but also contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices. Where a commercial practice is specifically aimed at a particular group of consumers, such as children, it is desirable that the impact of the commercial practice be assessed from the perspective of the average member of that group.” The aforementioned definition is difficult to judge, but a critique is that this definition – which arose in the 1990s – expects too much from the average consumer, because: “Regarding the consumer image, the European Court of Justice starts from a self-aware and active market citizen, who can make rational decisions. This average consumer is not only responsible for himself and his decisions, but is also able to process the information available to him.”^[5]

According to the ECJ, to determine whether a claim, sign or description is capable of deceiving the consumer “who is sufficiently informed, reasonably attentive and prudent”, it is necessary to start from the “average consumer”. In the case in question, according to the European Court of Justice, it was not necessary to obtain expert opinion or to conduct public opinion research among consumers, however, it did not exclude the possibility of these, leaving it to the discretion of the national court.

The European Court of Justice also based its judgement in the Mars case on the concept of the reasonably prudent consumer. A German consumer organization that acts against misleading advertising filed a lawsuit against the Mars confectionary company, disapproving of the “+10%” inscription on the packaging of its ice cream bars. In their opinion, the inscription “+10%” was added in a way that may have created the impression in the consumer that the product size increased to the same extent as the size of the inscription, although the size of the inscription exceeded 10% of the packaging size.

The European Court of Justice, in its opinion on the case, explained that the conscious consumer can be expected to know that in the packaging of a certain product, there is not necessarily a correlation between the size of the advertising text (referring to the product’s quantitative increase) and the actual growth of the contents.

Another thing worth mentioning with relation to this topic is the average consumer test. Specifically, for the UCP Directive, the Court held that “the constituent features of a misleading commercial practice, as set out in that provision, are in essence expressed with reference to the consumer as the person to whom unfair commercial practices are applied”. “In other words, the average consumer is the reference point for determining whether a commercial practice is misleading when it is not featured on the blacklist.”

New directions: progress of the consumer concept

In the Kásler case^[6] we can observe how the definition of the average consumer was challenged, as, in this decision, the concept of the “well informed consumer” was altered. “According to the permanent jurisprudence of the Court of Justice, the protection system established by Directive 93/13 is also based on the principle that the consumer is at a disadvantage compared to the seller or service provider in terms of both his negotiation opportunities and his level of information, a situation which the seller or service provider leads to the acceptance of certain conditions, without the consumer being able to influence their content.”

“The contractual condition must be clear and comprehensible, not only meaning that the relevant condition must be grammatically comprehensible to the consumer, but also that the contract must clearly state the specific operation of the foreign currency exchange mechanism defined in the relevant condition , as well as the relationship between this mechanism and the mechanism prescribed in the other terms and conditions for disbursing the loan in such a way that the consumer is able to evaluate the resulting economic consequences for him based on clear and comprehensible aspects.”

In my opinion, this judgment is particularly significant, since the whole case is about how much the average consumer can be expected to understand the complicated loan structures, showing that the requirement of understandability is not limited to grammatical correctness. Furthermore, the assumption of the active, information-seeking behavior of the average consumer is no longer fully valid here, because there are limits to the quality of knowledge and inquiry for a lay consumer.

Overall, a “two-component” average consumer concept arises in the case law: firstly, it involves a practice that can be judged unfair in a strict sense (“deceptiveness”), secondly, the influence on the transactional decision. Nevertheless, there is a difference between ‘the consumer in a specific context’ and the ‘average consumer’. There can be found a conflict between ‘the average consumer’ (general) and ‘the average consumer, according to the context’ (circumstance-specific). This appears, for instance, in the case of Wind Tre, in which the CJEU raised concerns “whether the average consumer is sufficiently aware and technically capable of the pre-loaded and pre-activated mobile services for prepaid SIM cards.” It then continued by stating that “it is for the national court to establish the typical reaction of the average consumer in circumstances such as those at issue in the main proceedings”.^[7] We can declare that there is no clear pattern which could serve as a benchmark in all cases.

The cooperation of the member states

18 UCPD specifies that, „in a given case, the national courts and authorities have to exercise their own faculty of judgment.” However, there are some mixed cases, where the degree of guidance applied by the Court is inconsistent. For instance, in the Canal Digital case, the Court did provide guiding principles and variables to be taken into consideration. In Wind Tre, there was a quasi-determination, only necessitating the national court to verify the facts: „In the present case, it appears that the services at issue in the main proceedings were pre-loaded and pre-activated on the SIM cards without the consumer having been sufficiently informed of this beforehand, and that, in addition, the consumer was not informed of the costs connected with using those services; this, however, is for the referring court to verify.”^[8] The way I see it, the ECJ should only give opinions which can be taken into consideration by the member states, however, the opinions of the ECJ should not be binding on them.

Vulnerable consumers

The second kind of consumer is the „vulnerable consumer”. As the UCP Directive defines it: “Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group.”

This kind of group is endangered in the sense that it requires special attention and different standards, given its lack of or low awareness. As I see it, vulnerability can emerge from many various causes, for example, a language barrier, technological misunderstandings etc. A report of the European Parliament’s Committee on the Internal Market and Consumer Protection^[9] argues that the causes of ‘vulnerability’ can be both ‘endogenous’ and ‘exogenous’. A clear example for the endogenous side of vulnerability is age or any kind of handicap. „The report notes that the causes of vulnerability are ‘endogenous’ when ‘the consumer’s vulnerability is the result of the temporary or permanent causes that are inherent to the consumer or his or her physical or mental situation (children, adolescents, seniors, the disabled, etc.)”^[10]. The aforementioned drawbacks can last for a vast amount of time, which is why it is so essential to keep an eye on these groups. For example, the Hungarian Competition Authority (hereinafter HCA) found that the commercial campaign of the ‘Marslakócskák’ chewable vitamin tablets was illegal, as it directly appealed to children to buy the product.

The HCA revealed that YouTube and television advertisements of Walmark Kereskedelmi és Szolgáltató Kft.’s products packaged with children’s toys unfairly encouraged children to buy vitamins. According to the consumer protection regulation, it is forbidden to directly urge children to buy the advertised product or to convince their parents or other adults to buy the product for them in an advertisement.^[11]

Moreover, the European Parliament Committee report argues that ‘exogenous’ factors can also cause ‘vulnerability’. Exogenous causes are “external: lack of knowledge of the language, lack of education (in general or specific to a sector of the market) or, simply, the need to use new technologies with which the consumer is not familiar”.^[12] The way I see it, I would argue that the exogenous causes of vulnerability should be taken into serious consideration, in view of the technological advances and available services that can nullify these hindering effects. Furthermore, these tools are more and more available for the average consumer via websites providing free services for every branch of knowledge.

Summary and comments

As we have seen, the development of the consumer concept began with an excessively high expectation during the 1990s, which would make the legal institution completely useless in the current age of complex internet services. However, the capabilities of the average consumer should not be underestimated, because then we would place a disproportionate burden on businesses. In addition, the focus on the protection of vulnerable consumers and the differentiation of various disadvantages are to be welcomed.

 

Author:  Dominik Boros, law student, University of Debrecen, Faculty of Law

References:

• Berki-Süle Margit A piaci szereplők tudatossága – tisztességtelen kereskedelmi gyakorlatok a viselkedési közgazdaságtan tükrében, 4. oldal, 2015, Budapest.
• 2008. évi XLVII. törvény a fogyasztókkal szembeni tisztességtelen kereskedelmi gyakorlat tilalmáról (Fttv), 2.§
• Verein gegen Unwesen im Handel und Gewerbe Köln e. v. / Mars GmbH C-470/93 EBHT 1995.
• Gut Springenheide GmbH Rudolf Tusky v. Oberkreisdirektor des Kreises Steinfurt C 210/96 EBHT 1998
• Sik-Simon Rita: Fogyasztókép és szabályozás, MTA Law Working Papers 2016/2. 14.p
• C‑26/13. sz. Kásler-ügy [ECLI:EU:C:2014:282]
• A C‑611/14. sz. ügy, a Canal Digital Danmark A/S [ECLI:EU:C:2016:800]
• Hanna Schebesta and Kai P. Purnhagen: An average consumer concept of bits and pieces: Empirical evidence on the Court of Justice of the European Union’s concept of the average consumer in the UCPD, 17. oldal, 2019
• C-54/17. és C-55/17. sz. egyesített ügyek [ECLI:EU:C:2018:710]
• Report on a strategy for strengthening the rights of vulnerable consumers (2011/2272/(INI)), 8.5.2012, A7- 0155/2012, Committee on the Internal Market and Consumer Protection, Rapporteur: Maria Irigoyen Pérez
• VJ/7/2019. https://gvh.hu/sajtoszoba/sajtokozlemenyek/2020-as-sajtokozlemenyek/50-millios-versenyhivatali-birsag-gyermekeket-befolyasolo-reklamok-miatt