Amongst others, the free movement of goods prohibits quantitative restrictions (Article 34 TFEU). Quantitative restrictions consist not only of national restrictions of the amount of goods to be imported, but also include so-called ‘measures having equivalent effect’. In the Dassonville case (1974), the CJEU made clear that these ‘measures having equivalent effect’ should be understood broadly; all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade, are to be considered as measures having an effect equivalent to quantitative restrictions.²

As a consequence of the broad definition of ‘measures having equivalent effect’ given in Dassonville, a significant number of national consumer protection measures was at risk of being in conflict with the EC Treaty (currently TFEU). To compensate for this, the CJEU formulated a general exception to the strict rule of Dassonville in its Cassis de Dijon decision (1979).³ The CJEU ruled that national provisions relating to the marketing of products are acceptable if they are ‘necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions [or] the defence of the consumer’.⁴ In order to qualify for this exception, the national measure must be proportional. This means that the national measure, taking in consideration the different interests at hand, must not unreasonably limit the free movement of goods .

The Cassis de Dijon case concerned a conflict between foods company Rewe-Zentral and the German Bundesmonopolverwaltung für Branntwein, a state agency that had the task to decide on import permits for Branntwein (brandy). Rewe-Zentral applied for a permit for the importation of Cassis de Dijon, a liqueur from France, but the Bundesmonopolverwaltung denied the request stating that Cassis de Dijon did not contain a sufficiently high alcohol percentage in order to be sold on the German market. The rationale behind this rule was that consumers could be misled by traders selling similar liquor as that of competitors, but with a lower alcohol level, in particular because the percentage of alcohol is a major determinant in the price of liquor.⁵ Moreover, the rule was meant to protect public health by making a clear distinction between light alcoholic beverages and strong liquors, which would be undermined by allowing the distribution of alcoholic beverages with alcohol percentages such as that of Cassis de Dijon.

The CJEU, however, ruled that these reasons were insufficient to justify the limitation of the free movement of goods. Although the German rule did address a mandatory requirement, the CJEU argued that in this case the consumer was sufficiently protected if it was ensured that ‘suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of the products’.⁶ Therefore, an overall prohibition on the import of this type of liquor was not proportional, and could not be justified by the doctrine of mandatory requirements.

The CJEU did not apply an explicit consumer benchmark in its judgment, but the judgment can be seen as a starting point for the development of the average consumer benchmark .⁷ In this context it is interesting to note that the Court did not find it necessary to commission consumer opinion research or to produce an expert opinion. In this sense, the CJEU applied an abstract test in order to assess the misleading character of the product at hand. Moreover, as to the expected behaviour of the consumer, the judgment shows the implicit assumption that consumers do not base their purchasing decisions merely on the general impression of the product. Rather, consumers are assumed to read product labels, or at least take note of the indication of the country of origin and the alcohol percentage on those labels.⁸

A similar line of reasoning can be found in Commission v Germany (1995).⁹ German food law at the time prescribed that for certain food products any deviation from the original recipe (in this case, e.g., the use of vegetable oils instead of eggs and butter in the production of certain biscuits) should be clearly stated on the product packaging. The CJEU again found German law to be in conflict with the free movement of goods , and again the Court argued that consumers are protected sufficiently by information given on product labels:¹⁰

As the Advocate General rightly observed […], consumers whose purchasing decisions depend on the composition of the products in question will first read the list of ingredients, the display of which is required by Article 6 of the [Labelling and Presentation of Foodstuffs] Directive. Even though consumers may sometimes be misled, that risk remains minimal and cannot therefore justify the hindrance to the free movement of goods created by the requirements at issue.

In addition, the CJEU stressed that competitors using the original ingredients can draw the consumer’s attention to the quality of the product,¹¹ thus assuming that if there is a problem, the market will take care of it.

The argument that the consumer is sufficiently protected by information provided on the product label has been held by the CJEU in numerous cases¹² concerning the free movement of goods and has become known as the ‘labelling doctrine’.¹³ The labelling doctrine is important in the creation of the internal market, as it restricts Member States in their power to keep foreign products off their domestic markets. The labelling doctrine can be seen as part of the information paradigm in EU consumer law , i.e., the view that consumers are, at least in principle, sufficiently protected if they are supplied with the relevant information. The CJEU in this context requires the consumer to be sufficiently attentive in order not to be misled by foreign products due to their different composition, naming and packaging.¹⁴ In this sense an active market player rather than a passive and inattentive consumer is a key to the creation of the internal market.¹⁵ Both Cassis de Dijon and Commission v Germany reflect this view.

In the Buet case (1989), the CJEU afforded Member States with more leeway to prohibit commercial practices, if the practice is targeted at particularly vulnerable consumers.¹⁶

The case concerned the alleged infringement of a French prohibition on doorstep selling of teaching materials by EBS, a company engaged in doorstep selling of materials for an English language course. Buet, manager of EBS, was prosecuted under criminal law for violating the prohibition, and EBS itself was being held liable under civil law.

Buet and EBS argued that the French prohibition of doorstep selling of teaching materials was irreconcilable with the free movement of goods , but the CJEU ruled that the prohibition, although restricting the free movement of goods, was in fact legitimate:¹⁷

[C]anvassing at private dwellings exposes the potential customer to the risk of making an ill-considered purchase. To guard against that risk it is normally sufficient to ensure that purchasers have the right to cancel a contract concluded in their home.

It is necessary, however, to point out that there is greater risk of an ill-considered purchase when the canvassing is for enrolment for a course of instruction or the sale of educational material. The potential purchaser often belongs to a category of people who, for one reason or another, are behind with their education and are seeking to catch up. That makes them particularly vulnerable when faced with salesmen of educational material who attempt to persuade them that if they use that material they will have better employment prospects. Moreover, as is apparent from the documents, it is as a result of numerous complaints caused by such abuses, such as the sale of out-of-date courses, that the legislature enacted the ban on canvassing at issue.

Hence, although a right to cancellation is generally adequate to protect the consumer against ill-considered purchases in doorstep selling, the CJEU found the prohibition of doorstep selling of educational materials permissible due to the vulnerable target group of this particular trade practice. The CJEU examined the permissibility of the measure not from the point of view of the average consumer, but from the point of view of ‘a category of people who […] are behind with their education and are seeking to catch up’. This group was recognised by the Court to be especially vulnerable in relation to doorstep selling and thus in need of additional protection. The case thus provides a good example of the possibility to protect target groups if they are vulnerable,¹⁸ as is also possible—at least under circumstances—in the Unfair Commercial Practices Directive. It also shows that there are limits to the information paradigm, especially if vulnerable target groups are involved.¹⁹

In a similar vein to the cases discussed above, the GB-INNO-BM case (1990)²⁰ and the Yves Rocher case (1993)²¹ concern the conflict between national consumer protection measures and the free movement of goods as laid down in Article 34 TFEU. Both cases concern the comparison of old and new prices in advertising. In the same manner as the cases establishing the labelling doctrine, these cases are examples of the information paradigm and thus of the tendency of the CJEU to prefer consumer information over and above prohibitions of commercial practices.²²

The GB-INNO-BM case deals with a Belgian supermarket spreading advertising leaflets in Luxembourg. At the time, Luxembourg law prohibited mentioning the pre-sale prices and the time period of the discount in advertising. According to the Luxembourg Government, these rules were aimed at the protection of the consumer, preventing confusion between bi-annual sales (which were regulated by Luxembourg law) and other temporary discounts. Moreover, the Government argued that the consumer is usually not able to check the correctness of the reference price, so that this too can be a source of deception.²³

The CJEU, however, was not willing to follow this line of reasoning. Rather, the Court agreed with the European Commission that the normally aware consumer knows that there is a difference between regular discounts and the regulated bi-annual discount, and that the use of reference prices cannot be prohibited unless they are in fact false.²⁴ Hence, national authorities are allowed to challenge actual deceptions, but cannot prohibit the use of reference prices as such. The CJEU defended this decision by pointing out that reference prices are in fact a useful source of information for the consumer and that access to information is an essential requirement for the protection of the consumer.²⁵ The CJEU referred to the Preliminary and Second Consumer Protection Programs (1975, 1981) of the European Council, stating that the protection of the economic interests of the consumer is aimed to ‘ensure the accuracy of information provided to the consumer, but without refusing him access to certain information’.²⁶

The Yves Rocher case is highly similar to GB-INNO-BM, both as to its facts and its judgment. Yves Rocher sold mail order cosmetics in Germany, advertising with discount prices using the slogan ‘Save up to 50 % and more on 99 of your favourite Yves Rocher products’. Alongside the pictures of the products the crossed-out old price and, in large red characters, the new price, was mentioned.²⁷ A German consumer organisation challenged this practice, arguing that it breached one of the provisions of the Gesetz gegen den unlauteren Wettbewerb (German Act Against Unfair Competition, UWG), holding a prohibition of individual price comparisons.

The German Government argued that this prohibition was a necessary restriction of the free movement of goods, arguing that it is ‘particularly easy to deceive consumers, since they are generally not in a position to verify the comparison between the old and the new prices’. Moreover, the German Government argued that price comparisons might have suggested a low price level for the entire range of products, while in fact it only applied to part of the products.²⁸

Analogously to the GB-INNO-BM-case, the CJEU was not willing to follow these types of arguments; it ruled that the prohibition of the UWG did not satisfy the proportionality requirement because, apart from prohibiting cases of actually misleading advertising , it also prohibited non-misleading advertising . As in GB-INNO-BM, the Court referred to the argument that price comparisons can help the consumer, enabling him to make a fully informed purchase decision.²⁹ This fits the general tendency of the CJEU to prefer the consumer’s access to information over general prohibitions of certain types of trade practices.³⁰

Due to the fact that the emphasis in this case was on the inadmissibility of a general prohibition, it is difficult to draw conclusions as to the consumer benchmark in this case. The Court did not argue that price comparisons cannot mislead the consumer, but rather that a general ban was unnecessary. However, the different points of view taken by the Court and the German Government are clearly based on different assumptions as to the behaviour of the consumer and his or her need for protection. While the German Government presented the consumer as a generally weak party in need of extensive protection against practices such as comparative pricing, the CJEU postulated the image of a more autonomous consumer, who, at least in general, is able to deal with trade practices such as price comparisons, and to whom more information is beneficial rather than a threat.³¹ As Weatherill has argued, the vision of the CJEU in this case of the consumer is one who is able to process and act on proffered information.³²

In contrast to the cases discussed above, the Nissan case (1992) is not related to the free movement of goods as laid down in the EC Treaty, but about the interpretation of the Misleading Advertising Directive (84/150/EEC) .³³

The Directive on Misleading and Comparative Advertising prohibited advertising which ‘deceives or is likely to deceive the persons to whom it is addressed or whom it reaches’. The Directive did not specify how this should be determined and what consumer benchmark should be applied. Although this issue had been discussed in the preparations of the Directive, the Member States were unable to achieve consensus.³⁴

The case deals with the parallel import of new Nissan vehicles from Belgium into France. The vehicles were cheaper, but also had fewer accessories than the regular Nissan vehicles sold in France. The French company Richard-Nissan, exclusive dealer for Nissan in France, filed a complaint against the parallel importer, arguing that it was breaching the Loi Royer, the French law on unfair competition that served as the implementation of the Misleading and Comparative Advertising Directive. The competent court, the Tribunal du grande instance de Bergerac, requested a preliminary ruling from the CJEU, asking ‘whether such a marketing practice is in compliance with the European rules currently in force’.³⁵

In his Opinion in the case, Advocate General Tesauro emphasised that the average consumer, when buying a car, will make a careful comparison and will actively collect information in order to make the right decision:³⁶

In determining whether such advertising is really likely to affect the economic behaviour of the persons to whom it is addressed, one should bear in mind that the car market is characterized by a certain price transparency and that the average consumer, who I am convinced is not wholly undiscerning, is inclined, not least in view of the considerable expense he is contemplating, to make a careful comparison of the prices on offer and to enquire of the seller, sometimes very meticulously, about the accessories with which the vehicle is equipped. In this regard, I hope I will be forgiven for recalling the old saying “vegliantibus non dormientibus iura succurrunt”.³⁷

The CJEU formulated it differently, emphasising that ‘a significant number of consumers’ must be misled and that this is not the case under the circumstances presented.³⁸ This is somewhat remarkable as it implies a quantitative rather than an abstract test, as was later prescribed in Gut Springenheide,³⁹ but it seems to imply first and foremost that consumers are not thought to be misled easily, especially if information is available on the basis of which the consumer can make a sound decision.⁴⁰ Smaller groups of more ignorant consumers are thus not protected.⁴¹

The 1994 Clinique case offers another example of the clash between the free movement of goods and German consumer protection law.⁴² The case is of importance for the average consumer benchmark because it deals—albeit implicitly—with the choice for an abstract benchmark rather than the use of consumer opinion research or expert opinions, and gives direction as to what can be expected of the consumer. The case also marks the starting point for the discussion on social, cultural and linguistic factors in the light of the European consumer benchmark.

The case concerns a dispute between a German consumer organisation and Estée Lauder, the latter selling cosmetics on the German market under the name ‘Clinique’. The consumer organisation started proceedings at the Landgericht Berlin to prohibit the use of the name ‘Clinique’ in Germany, arguing that it made the consumer believe that the products in question have medicinal properties.⁴³ According to the consumer organisation, this constituted a breach of Article 27 of the Lebensmittel- und Bedarfgegenständegesetz (German Foods Act, LMBG),⁴⁴ which prohibited selling cosmetics under misleading names, descriptions or promotions, including the attribution of characteristics the product does not have.

The Landgericht Berlin requested a preliminary ruling from the CJEU, asking whether it would be contrary to the principle of free movement of goods to prohibit cosmetics under the name ‘Clinique’ on the ground that it would mislead the consumer, even if the product is lawfully marketed under the same name in other Member States.⁴⁵

In its judgment, the CJEU made clear that the prohibition constituted a limitation of the free movement of goods, because it forced producers to market its products under a different name as in other Member States and to bear additional costs for packaging and advertising.⁴⁶ As the products were not being sold in pharmacies, but instead in perfumeries and department stores, and since they were not presented as medicinal products and apparently did not mislead consumers in other Member States, the CJEU concluded that the consumer was not misled and that there was no justification to limit the free movement of goods .⁴⁷

Although the CJEU did not explicitly discuss the consumer’s expected understanding of the product name, the judgment once more clearly shows the different lines of thought of the CJEU and German unfair competition law. The Landgericht Berlin took the claim seriously, ‘since it is possible that an appreciable proportion of the sector of the market concerned might attribute prophylactic or curative medical effects on the skin to the Clinique range of cosmetics’. To prove this, the national court argued that it may be necessary to commission consumer opinion research. If this would show that 10–20 % of consumers would be misled, it would be necessary to prohibit the use of the name ‘Clinique’.⁴⁸ Without making its reasons explicit, the CJEU opted for an approach that is clearly different. The misleading nature of the product name is decided upon by a test in which ‘the consumer’ in abstracto is taken as the standard and not whether a certain percentage of consumers is actually being deceived. In that sense, Clinique is a clear forerunner of Gut Springenheide. Also, it is clear that the consumer, as understood by the CJEU, is not naïve and does not draw conclusions lightly on the basis of advertising slogans and product names. The same line of reasoning can be found in the Mars judgment, discussed below.⁴⁹

Interestingly, Advocate General Gulmann was more reserved in his Opinion than the Court was in its final judgment. Although the Advocate General found the Commission’s arguments feasible (which argued against the misleading nature of the product name and which were largely followed by the Court), he argued that there should be room for Member States to determine what level of consumer protection is desirable. Moreover, he argued that there may be differences between consumers in different Member States that may justify differences in the assessment of the same practice in different Member States:⁵⁰

[I]t can be argued that the Commission fails to take sufficient account of the fact that the starting point, according to the case-law of the Court, is that it is for the individual Member States to decide the degree of protection they deem to be correct with a view to safeguarding the matters which under Article 36 of the Treaty and the Court’ s case-law may properly be taken into consideration by the Member States—even though the rules adopted may give rise to barriers to trade.

It may be appropriate in this connection to refer to an argument submitted to the Court by the defendants in the main proceedings. They contended that nothing can justify the view expressed that German consumers require a greater level of protection than consumers in the other Member States. It should be noted in this connection that, as just mentioned above, under Community law it is primarily a matter for national legislatures to determine the level of protection desired in each country. Moreover, as already mentioned, there may be specific differences in linguistic, social and cultural conditions which have the result that something which does not mislead consumers in one country may do so in another.

Both the argument that Member States should in principle be free to determine their level of consumer protection and the argument that there may be differences between consumers in different Member States were ignored by the Court, which decided that the name ‘Clinique’ is simply not misleading. According to Keirsbilck, by arguing that the name is not misleading as it apparently does not mislead consumers in other Member States, the CJEU in this case appears to have opted for a uniform European consumer benchmark, leaving little room for differences between Member States.⁵¹

In the Mars case (1995) the CJEU assumed the consumer to be critical towards advertising techniques, applying the benchmark of the ‘circumspect consumer’.⁵² It is one of the clearest and most specific examples of the expectations of the CJEU towards consumers. It is also another clear example of the clash between the benchmark applied in German unfair competition law and the free movement of goods.⁵³

In its judgment, the CJEU made clear that such a prohibition would indeed limit the free movement of goods and that this prohibition could not be justified in the light of mandatory requirements. The main reason given by the Court was that ‘reasonably circumspect consumers may be deemed to know that there is not necessarily a link between the size of publicity markings relating to an increase in a product’s quantity and the size of that increase.’⁵⁴ Hence, the Court applied the ‘reasonably circumspect consumer’ as the benchmark, and expected that this consumer is sufficiently critical not to be affected by the fact that the coloured part of the wrapping was in fact bigger than 10 %.⁵⁵

Schulte-Nölke and Jones point out that the Court’s ruling ‘served to strengthen the tendency [of the CJEU] to impose an obligation on the consumer to take responsibility for protecting his own interests. The consumer, who has a right to information […], must also take note of this information and consider it.’⁵⁶ The case also shows that the Court is determined to allow companies to adopt pan-European marketing strategies, without being held back by some Member States.⁵⁷

The last of the cases leading up to Gut Springenheide discussed here is the Graffione case (1996), which deals with the relevance of social, cultural and linguistic factors .⁵⁸ The case was referred to the CJEU by the Italian Tribunale di Chiavari and concerns a dispute between wholesale business Graffione and supermarket owner Ditta Fransa. At an earlier stage in the legal procedure, the Corte d’appello di Milano had forbidden Scott, producer of toilet paper and disposable handkerchiefs, to continue importing these products into Italy. The reason for the prohibition was that the products—although they were made out of paper—were being sold under the name ‘Cottonelle’, which, according to the Corte d’appello di Milano, had the potential to mislead consumers.⁵⁹ As a consequence of the judgment, wholesale business Graffione could no longer sell the products. Ditta Fransa’s supermarkets still did so, as Ditta Fransa imported the products independently from another Member State, in which the products were still being sold.

The CJEU , after making clear that the prohibition would constitute a limitation of the free movement of goods, addressed the question whether the prohibition could be justified by the need to protect the consumer.⁶⁰ Although the argument had been made that the name was not regarded as misleading in other Member States, the Court argued that this in and of itself did not mean that the name was not misleading in Italy:⁶¹

The possibility of allowing a prohibition of marketing on account of the misleading nature of a trade mark is not, in principle, precluded by the fact that the same trade mark is not considered to be misleading in other Member States. As the Advocate General has observed in paragraph 10 of his Opinion, it is possible that because of linguistic, cultural and social differences between the Member States a trade mark which is not liable to mislead a consumer in one Member State may be liable to do so in another.

Hence, after the CJEU had ignored these types of arguments in the Clinique case, it accepted in Graffione for the first time that differences between consumers in different Member States may be taken into account as a result of social, cultural and linguistic factors .⁶² As a result of this, the determination of the misleading nature of product names or other commercial communication may lead to different results in different Member States, and the benchmark applied can at least to some extent be based on a national rather than a European consumer.⁶³

Since a statement may be misleading in some Member States but not in others, the CJEU left the final decision in Graffione to the national court, stating that the national court will have to decide whether ‘the risk of misleading consumers is sufficiently serious to limit the free movement of goods’.⁶⁴ In the determination thereof, the national court should take into account ‘all the relevant factors, including the circumstances in which the products are sold, the information set out on the packaging of the products and the clarity with which it is displayed, the presentation and content of advertising material, and the risk of error in relation to the group of consumers concerned’.⁶⁵

Gut Springenheide (1998) is the landmark case for the introduction of the average consumer benchmark in European law.⁶⁶ For the first time, the CJEU explicitly made clear which consumer is to be taken as the benchmark with regard to potentially misleading commercial communication.⁶⁷ The judgment was a result of ongoing discussions in German consumer law and unfair competition law on the applicable consumer benchmark. German courts had been applying the benchmark of a superficially observing and uncritical average consumer.⁶⁸ German legal scholars, on the basis of earlier judgments of the CJEU such as Mars and Clinique, had already argued that the German benchmark was in breach of European law.⁶⁹ However, this had not yet had any effect on the case law of the German courts.⁷⁰ The CJEU judgment had therefore been awaited eagerly in Germany.⁷¹

The case deals with the sale, packaging and labelling of eggs, which have been subject to uniform European rules since 1975.⁷² Amongst others, EU law regulates the naming, packaging and distribution of eggs. The German company Gut Springenheide sold ready-packed eggs under the name ‘6-Korn—10 frische Eier’ (‘six-grain—10 fresh eggs’). The company stated that ‘the six varieties of cereals in question account for 60 % of the feed mix used to feed the hens.’⁷³ Each box of eggs included an information leaflet, praising the quality of the eggs resulting from this high quality feed.

The local Office for the Supervision of Foodstuffs challenged this practice, arguing that the product name and the information provided were misleading. In the proceedings, the Bundesverwaltungsgericht (the highest German federal administrative court) was faced with the question whether the marketing practices of Gut Springenheide conformed to Article 10 of the Regulation on the marketing standards for eggs, which prohibits providing misleading information and displaying misleading symbols as to the marketing of eggs.⁷⁴ The company argued that the appeal court was wrong in judging that the given name and information were misleading, without producing an expert opinion to prove this. The Bundesverwaltungsgericht turned to the CJEU for guidance on this issue. In its preliminary questions, the Bundesverwaltungsgericht in essence requested the CJEU to determine which ‘type’ of consumer it should use to determine whether the given statements were misleading, and, if at all relevant, what percentage of consumers would need to be misled in order to draw the conclusion that consumers are likely to be misled within the meaning of the Regulation. This last question should be seen against the background of the German practice that 10–15 % of consumers was required to be misled in order to justify a prohibition.

In its judgment, the CJEU pointed out that the question how to determine the misleading nature of a statement was not only relevant in the context of the Regulation on the marketing standards for eggs, but also in the context of other European secondary legislation, such as other sector-specific regulations and directives and the Misleading Advertising Directive.⁷⁵ The answer provided by the CJEU is thus applicable not only to the Regulation on the labelling and marketing of eggs, but to European rules related to potentially misleading information in general.⁷⁶ As Schulte-Nölke and Jones point out, the CJEU was ‘clearly concerned with establishing a uniform concept of the consumer for these provisions.’⁷⁷

In addition, the CJEU explained how, in the past, it had decided itself on the issue of potentially misleading commercial communications, and stated that national courts should decide in the same way:⁷⁸

There have been several cases in which the Court of Justice has had to consider whether a description, trade mark or promotional text is misleading under the provisions of the Treaty or of secondary legislation. Whenever the evidence and information before it seemed sufficient and the solution clear, it has settled the issue itself rather than leaving the final decision for the national court […].

In those cases, in order to determine whether the description, trade mark or promotional description or statement in question was liable to mislead the purchaser, the Court took into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect, without ordering an expert’s report or commissioning a consumer research poll.

So, national courts ought, in general, to be able to assess, on the same conditions, any misleading effect of a description or statement designed to promote sales.

Hence, national courts should be able to decide themselves whether a trader’s communication is misleading, without having recourse to expert opinions or consumer research polls. In a similar manner as the CJEU had done itself in the past, national courts can assess the misleading nature of commercial communications on the basis of its own judgment of how the average consumer, being reasonably well-informed and reasonably observant and circumspect, would react. In principle, national courts should thus determine on the basis of the abstract benchmark of the average consumer whether commercial communication is misleading.

However, the CJEU also emphasised that this does not mean that national courts cannot take into account expert opinions or consumer research polls:⁷⁹

The Court has not […] ruled out the possibility that, in certain circumstances at least, a national court might decide, in accordance with its own national law, to order an expert’s opinion or commission a consumer research poll for the purpose of clarifying whether a promotional description or statement is misleading or not.

In the absence of any Community provision on this point, it is for the national court, which may find it necessary to order such a survey, to determine, in accordance with its own national law, the percentage of consumers misled by a promotional description or statement that, in its view, would be sufficiently significant in order to justify, where appropriate, banning its use.

Remarkably, no further guidelines are provided about the circumstances under which national courts can use these types of evidence and how the use of this evidence relates to the abstract benchmark of the average consumer.⁸⁰

Particularly important for the further development of the average consumer benchmark after the Gut Springenheide decision is the Lifting case (1999), dealing with the issue of social, cultural and linguistic factors and the role of consumer opinion research.⁸¹

As to the facts, Lifting was largely similar to the Clinique case (see paragraph 3.2.5 above). One of the parties in the case was cosmetics company Lancaster, which sold firming cream for the skin under the name ‘Monteil Firming Action Lifting’. Lancaster was brought before the Landgericht Köln by competitor Estée Lauder (note: the defendant in the Clinique case), who argued that the name ‘Lifting’ misled consumers ‘because it gives purchasers the impression that use of the product will obtain results which, above all in terms of their lasting effects, are identical or comparable to surgical lifting, whereas this is not the case so far as the cream in point is concerned’.⁸² In this light, Estée Lauder argued that the name was misleading in the sense of the German Gesetz gegen den unlauteren Wettbewerb (Unfair Competition Act, UWG) and Article 27 of the Lebensmittel- und Bedarfgegenständegesetz (German Foods Act, LMBG).⁸³

The Landgericht Köln made clear that according to German law a not inconsiderable proportion of consumers (approximately 10–15 %) would need to be misled in order to justify a prohibition.⁸⁴ However, it had doubts whether this test was in accordance with European law, taking into consideration the case law of the CJEU on the average consumer.⁸⁵ The question referred to the CJEU was whether prohibiting the name would breach the free movement of goods principle, taking into account the fact that the name was used in other Member States without being contested.

In his Opinion in the case, Advocate General Fennelly emphasised that it is the task of the CJEU to provide guidelines for the national court on how to balance the interests of the free movement of goods , on the one hand, and the protection of the consumer, on the other.⁸⁶ Similarly to Advocate General Gulman in Clinique, Fennelly also argued that it is not up to the European Court to decide upon the facts at hand, but only to give general guidelines.⁸⁷ Fennelly emphasised that the average consumer benchmark plays an important role in the context of balancing the interests of the free movement of goods and consumer protection, and that the interpretation of this concept—especially in the context of a Directive such as the one in question (which exhaustively harmonises its field of application⁸⁸