This chapter compares the consumer benchmarks applied in the unfair commercial practices laws of the selected Member States, including a horizontal comparison between the Member States as well as a vertical comparison with European law. Special attention is paid to the themes identified in Chap. 4 of this book. The consequences in terms of the goals of the Directive (e.g., in relation to conform or non-conform application) are discussed in the assessment of the Directive’s benchmarks in Chap. 11 of this book.

Paragraph 8.2 will first compare the legal context in which the consumer benchmarks developed in the three Member States, followed by a discussion of the ‘old’ consumer benchmarks in paragraph 8.3. Subsequently, the application of the average consumer benchmark (paragraph 8.4) and the target group and vulnerable group benchmarks (paragraph 8.5) will be discussed. Paragraph 8.6 deals with the possibility for courts to use empirical evidence in determining the expected behaviour of consumers.

Germany, England and Italy have distinctly different legal backgrounds with regard to the regulation of unfair commercial practices. Germany with its Gesetz gegen den unlauteren Wettbewerb (UWG), a law that dates back to 1896, has a particularly strong history in this regard. The UWG is a general law on unfair competition, which aims at the protection of competitors and consumers. However, its scope was subsequently enlarged to include consumers. Although the UWG was amended in order to implement the Unfair Commercial Practices Directive, the idea of general regulations on unfair commercial practices was certainly not new for German law . Enforcement of the UWG is private, with an important role for competitors as well as competitors’ interest groups and consumer interest groups.

English law is quite different in this respect. Unlike Germany, England never had a general law regulating unfair competition or unfair commercial practices. The situation in English law was somewhat obscure, with several common law actions, as well as statutory instruments addressing unfair commercial practices, with varying scopes of protection. While some only address the interests of competitors (e.g., the economic tort of passing-off), others only address (or addressed) the interests of consumers (e.g., the Trade Descriptions Act 1968 and the Control of Misleading Advertisements Regulations 1988). In this sense the Unfair Commercial Practices Directive brought about a significant change in the English legal landscape.

In Italy, there was little protection against unfair commercial practices until the Misleading Advertising Directive was implemented in 1992. From 1942, there has been a general clause on unfair competition in tort law, but it has been used little in the context of unfair commercial practices. Moreover, this general clause did not aim to protect consumers, but competitors. It was, therefore, European law, in the form of the Misleading Advertising Directive and later the Unfair Commercial Practices Directive, that introduced unfair commercial practices regulation aimed at the protection of consumers. The Autorità Garante della Concorrenza e del Mercato (Italian Competition and Market Authority, AGCM) has a strong role in the enforcement of these instruments.

German law had a reputation for having a very strict approach to commercial practices, protecting even the most naïve and unknowing consumers. German unfair competition law was indeed generally strict, and there was a low threshold for potentially unfair commercial practices to be forbidden under the Gesetz gegen den unlauteren Wettbewerb (UWG) . The benchmark applied was that of the flüchtigen und unkritischen Durchschnittsverbraucher, i.e., the casually observing and uncritical average consumer. In practice, this meant that as soon as a product name, for example, could possibly lead to confusion, this could be successfully challenged under the UWG.¹ Moreover, under the doctrine of Blickfangwerbung, eye-catching advertising statements were as a rule assessed on their own, i.e., regardless of further information or disclaimers in the advertisement. Sometimes even objectively true advertising slogans, such as ‘Der meistgekaufte der Welt’ (the most purchased in the world, for electric shavers) were found to be misleading, because they were thought to invoke false impressions, in this case that the producer would also be market leader in Germany.² The Bundesgerichtshof expected the consumer to be especially vulnerable as to environment-related and health-related advertising, because consumers were expected to react particularly emotionally towards these types of advertising and to have difficulty assessing the truthfulness of claims as to these topics.³ Finally, additional protection was also granted to particularly vulnerable groups, such as children.

English law, at least in comparative studies, had a reputation for having a laissez-faire approach to commercial practices.⁴ Looking at the consumer benchmarks applied in, for example, the common law tort of passing off and in the Trade Descriptions Act 1968, this reputation requires nuancing. These instruments applied the benchmarks of ‘the ordinary shopper’, ‘the ordinary person’, or similar benchmarks. What was expected of the consumer in this regard differs somewhat from case to case, but in most cases the expectations of this ‘ordinary shopper’ or ‘ordinary person’ were not particularly high.⁵ In some cases, a minority of consumers was protected, although this seems to be the exception rather than the rule.⁶

In Italy, there was little general protection against unfair commercial practices for consumers until the implementation of the Misleading Advertising Directive in the early 1990s. Moreover, in the application of the clause on unfair competition in the Codice Civile, courts had rather high expectations of consumers, expecting them to be critical and suspicious towards advertising.⁷ This earned Italy the reputation of being particularly lenient towards traders and having high expectations of consumers.⁸