The Unfair Commercial Practices Directive (2005/29/EC) fully harmonises unfair commercial practices law in the European Union. The Directive, which was adopted in 2005, formally aims to achieve a high level of consumer protection and to increase the smooth functioning of the internal market, but also aims to improve competition in the market.

The Directive relies to a large extent on general clauses prohibiting unfair commercial practices. Consumer benchmarks are used in this context to determine the expected behaviour of consumers. The benchmark applied has important consequences for the level of protection that is offered to consumers and for the degree to which intervention in the market is possible. This is relevant in terms of the objective of achieving a high level of consumer protection, but also in terms of the other goals of the Directive. For example, the degree to which consumers are protected may affect consumer confidence in cross-border shopping, and what is regarded as unfair also affects competition, in the sense that traders acting unfairly can remove market share from other traders.

Much uncertainty existed as to how the benchmarks related to one another and how they were to be applied in practice. Moreover, the average consumer benchmark has been criticised for not affording sufficient protection to consumers, also because its application by the CJEU was claimed not to be in accordance with real consumer behaviour. This raises questions in relation to the regime of consumer benchmarks in the Directive and its suitability to meet the Directive’s goals .

Accordingly, this book investigates the question to what extent the regime of consumer benchmarks in the Unfair Commercial Practices Directive meets each of the goals of the Directive. This question is addressed firstly by investigating the consumer benchmarks in the Unfair Commercial Practices Directive and their application in the case law of the CJEU. Subsequently the benchmarks as applied in national law are investigated. This is primarily relevant for the degree of harmonisation that is achieved by the Directive’s benchmarks, which is relevant in terms of the goal to improve the smooth functioning of the internal market. The investigation of the benchmarks at the national level is followed by an analysis of the consumer benchmarks (and the behaviour expected under those benchmarks) from the point of view of consumer behaviour. This is intended to provide insight into the question to what extent consumers are actually protected under the benchmarks of the Directive, which is relevant for the level of consumer protection, but also for the other goals of the Directive, as explained above. Finally, the regime of consumer benchmarks in the Directive is assessed in terms of each of the Directive’s goals. The epilogue of this book provides recommendations that build upon the assessment, but at the same time go beyond providing an answer to the main research question of this book.

The two formal goals of the Unfair Commercial Practices Directive are (1) to achieve a high level of consumer protection and (2) to increase the smooth functioning of the internal market. In terms of increasing the smooth functioning of the internal market , the Directive aims to achieve two goals , both of which should lead to an increase in cross-border trade. Firstly, the Directive should remove barriers to trade through harmonisation. Secondly, both harmonisation and a high level of consumer protection should increase consumer confidence to shop across the border. Apart from achieving a high level of consumer protection and increasing the smooth functioning of the internal market, the Directive also aims to improve competition in the market. In this context it is important to note that the Directive should prevent distortions of competition through deception of consumers on the one hand, whilst leaving sufficient room for traders to compete on the other.

The main consumer benchmark in the Directive is the average consumer benchmark, as introduced by the CJEU in Gut Springenheide (1998). For its interpretation, the Directive refers to the guidelines given in the case law of the CJEU. Apart from the average consumer benchmark, the Directive also introduced the target group benchmark . This benchmark grants the possibility to take into account the behaviour of a particular group (such as children or teenagers) rather than that of the average consumer, as long as this group is specifically targeted by the commercial practice. Despite the introduction of the target group benchmark, concerns were expressed in the adoption process of the Directive as to the level of protection offered by the Directive. As a compromise, a third benchmark was included, namely the vulnerable group benchmark. This benchmark applies if a particularly vulnerable group is affected by a practice, without this group having to be specifically targeted. In order for the benchmark to be applicable, however, the vulnerable group must be clearly identifiable and the vulnerability of the group must be reasonably foreseeable for the trader. Exactly under what circumstances the target group and vulnerable group benchmarks can be applied remains unclear, but the requirements for their application do emphasise that these benchmarks remain exceptions to the main benchmark in the Directive, i.e., the average consumer benchmark.

The average consumer benchmark as introduced in Gut Springenheide can be traced back to earlier CJEU judgments in the context of the free movement of goods. In these cases, the average consumer benchmark was used by the CJEU to tackle what it regarded as over-protective national laws related to commercial practices. In cases such as Cassis de Dijon (1979), GB-INNO-BM (1990), Nissan (1992), Clinique (1994) and Mars (1995), the CJEU made clear that the consumer is not easily misled, and that national laws offering extensive protection often disproportionally infringe the free movement of goods . In Graffione (1996), the CJEU did clarify that social, cultural and linguistic factors can lead to different assessments of potentially misleading commercial communication in different Member States. Moreover, the Buet case (1989) indicated that also before the adoption of the Unfair Commercial Practices Directive additional protection could be given to particularly vulnerable groups.

When the CJEU handed down the Gut Springenheide judgment in 1998 and thus introduced the average consumer benchmark , the Court explicitly based this benchmark on its earlier case law in the field of the free movement of goods . The judgment also made clear that the average consumer benchmark should not be seen as a statistical test, but that courts of the Member States retain the possibility to take empirical research into account when determining the expected behaviour of the consumer. In the Lifting case (1999), the CJEU linked the relevance of social, cultural and linguistic factors to the average consumer benchmark, clarifying that the average consumer benchmark does not necessarily reflect the European average consumer. In general, the case law subsequent to Gut Springenheide, in a similar vein to the earlier free movement case law, elucidates that the average consumer is not expected to be misled easily. This is most explicit in the Opinions of Advocate Generals Geelhoed and Trstenjak in Douwe Egberts v Westrom Pharma (2004) and Mediaprint (2010) respectively. In the latter, Trstenjak emphasises that the consumer is considered ‘to be capable of recognising the potential risk of certain commercial practices and to take rational action accordingly’. The Kásler case is an exception in this context, pointing more towards a consumer-friendly application of the average consumer benchmark.

In comparison to the case law on misleading commercial communication, the CJEU is clearly less strict towards consumers in the field of trademarks. Also in this context the average consumer is applied to determine the expected behaviour of the consumer. However, in this context the CJEU expects that the average consumer ‘only rarely has the chance to make a direct comparison between the different marks’ and ‘must place his trust in the imperfect picture of them that he has kept in his mind’. Moreover, it is emphasised that ‘the average consumer’s level of attention is likely to vary according to the category of goods or services in question.’

Questions can be raised as to the main themes in relation to the consumer benchmarks in the Unfair Commercial Practices Directive.

Firstly, it appears initially that the nature of the average consumer benchmark is unclear. Although the benchmark with its reference to the ‘average’ seems to reflect behaviour of the actual average of consumers or an abstraction thereof, the CJEUs case law indicates that the expected behaviour of the average consumer, at least in part, also reflects desired behaviour. In some cases, such as those establishing the labelling doctrine, the expected behaviour of the average consumer is determined on how the consumer ought to behave under certain circumstances, rather than how the consumer actually behaves. The application of the average consumer benchmark in trademark law appears to be more realistic in this respect, but bearing in mind its isolated development, its application in this context should be regarded as separate from the case law related to misleading commercial communication.