Thematic Analysis

© Springer International Publishing Switzerland 2015
Bram B. DuivenvoordeThe Consumer Benchmarks in the Unfair Commercial Practices DirectiveStudies in European Economic Law and Regulation510.1007/978-3-319-13924-1_4

4. Thematic Analysis

Bram B. Duivenvoorde 

Hoogenraad & Haak advertising + IP advocaten / University of Amsterdam, Amsterdam, The Netherlands



Bram B. Duivenvoorde


Questions can be raised as to the main themes in relation to the consumer benchmarks in the Unfair Commercial Practices Directive. Firstly, it initially appears 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. Secondly, a question that should be addressed is what is expected of the average consumer in terms of being ‘reasonably informed, observant and circumspect’. Thirdly, as has been mentioned above, it is unclear under what circumstances the target group and vulnerable group benchmarks can be applied, and how these benchmarks relate to one another. Fourthly, also the relevance of social , cultural and linguistic factors raises questions. Fifthly and finally, questions can be raised in relation to the possibility for courts and enforcement authorities to use empirical evidence in determining the expected behaviour of the consumer.

Nature of the average consumer benchmarkCharacteristics of the average consumerTarget groupsVulnerable groupsSocialCultural and linguistic factorsUse of empirical evidence

4.1 Introduction

The two previous chapters have discussed the benchmarks of the Unfair Commercial Practices Directive and have attempted to ascertain guidelines for their application, both in the Directive itself as in the CJEUs case law.

This chapter identifies and analyses five central themes on the topic of the Directive’s consumer benchmarks , on the basis of the issues that arose in the previous two chapters. Firstly, this chapter deals with the nature of the average consumer benchmark , i.e., the question whether the benchmark reflects actual or desired behaviour (paragraph 4.2). Secondly, it discusses the characteristics of the average consumer (i.e., the characteristics of being informed, observant and circumspect) and aims to specify what is expected of the average consumer in relation to these characteristics (paragraph 4.3). Thirdly, it focuses on target groups and vulnerable groups (paragraph 4.4). This is followed by a discussion on social, cultural and linguistic factors (paragraph 4.5). Finally, this chapter deals with the question as to what extent empirical evidence such as consumer research polls and expert opinions can play a role in the determination of expected consumer behaviour (paragraph 4.6).

4.2 The Nature of the Average Consumer Benchmark

In the previous chapters, the question has repeatedly been raised what the nature of the average consumer benchmark is, i.e., whether it refers to actual behaviour or to desired behaviour.1 This fundamental question is not easy to answer. The Unfair Commercial Practices Directive itself does not address this question and the case law of the CJEU also leaves room for different interpretations.

It must again be noted that the average consumer benchmark, like any benchmark setting a standard for behaviour, is in and of itself abstract and normative, setting a standard for protection.2 As it sets a standard, it refers by its very nature to desired behaviour. In this sense, the determination of whether a commercial practice is misleading is always normative and cannot be seen as a purely objective, factual assessment.3

The analysis in terms of the nature of the average consumer benchmark requires an additional step, i.e., going beyond the fact that setting a standard is by definition a normative exercise. The question here is: does the average consumer benchmark refer to actual behaviour of the average consumer, or to what behaviour is desired of the average consumer? In other words, should it be determined how the average consumer behaves, or how the average consumer could or should behave?4

This additional step is needed because some of the case law of the CJEU applying the average consumer benchmark, as has been illustrated in the previous chapter, indeed seems to refer to desired, rather than actual behaviour of the average consumer. The clearest example of this is the labelling doctrine, i.e., the presumption that the average consumer carefully reads product labels before purchasing a product. The idea underlying the labelling doctrine is that the consumer is expected to read product labels or else he or she does not deserve protection, rather than that the average consumer is actually being expected to always read product labels. These sometimes unrealistic expectations5 seem to be the result of the balancing of interests of consumer protection and the free movement of goods, the result of which emphasises that the consumer is generally expected to take care of him or herself, and that extensive state intervention is not easy to justify. This also seems to be the background of the statements by Advocate General Geelhoed in Douwe Egberts v Westrom Pharma and Advocate General Trstenjak in Mediaprint, who both explicitly link high expectations of the average consumer’s behaviour with the consumer’s own responsibility to make an informed decision and to beware of potentially unfair trade practices.6

In this context, Howells sees the expectations of the average consumer as being ‘reasonably informed, observant and circumspect’ as probably being an ‘idealised image’ of how consumers behave.7 Trzaskowski notes in relation to the average consumer benchmark in the Unfair Commercial Practices Directive that ‘if the actual average consumer is not well informed and reasonably observant and circumspect, one will in his assessment have to lift the benchmark to represent one who is, and thereby raise the standard above the ‘real’ average consumer.’8 Trzaskowski thus argues that because of the CJEUs case law, the idealised image of the consumer prevails over actual consumer behaviour. Trzaskowski also notes, similarly to what has been argued earlier by Incardona and Poncibò, that the average consumer is a ‘normative abstraction derived from economic fiction’, which ‘has little in common with the behaviour of the real average consumer’.9

However, there are also indications that the average consumer benchmark may not (or may not always) be as strict for consumers as has just been suggested. First of all, the benchmark itself through reference to the average seems to indicate actual consumer behaviour.10 When setting the benchmark at an idealised image of the consumer, it would make more sense to speak of what is expected of ‘the consumer’ rather than what is expected of ‘the average consumer’, because the benchmark applies to everyone and not only to the average consumer .

Secondly, the CJEUs case law in the field of trademarks seems more realistic in its assumptions regarding consumer behaviour, and does not at all emphasise the consumer’s own responsibility not to be misled or confused. In this context, it is emphasised that the consumer ‘only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind’.11 The EC Guidance to the Unfair Commercial Practices Directive mentions the assumptions made in trademark cases as being applicable also in the context of the Directive.12 Taking into consideration the case law of the CJEU, this remark, however, is seriously doubtful. The lower expectations as to the behaviour of the average consumer can be found only in cases in the field of trademarks and this indicates that it is also limited to this field. This is most likely a consequence of the different nature of trademark law, on the one hand, and consumer protection law, on the other.13 Although consumer protection by definition aims at the protection of consumers, it also more directly deals with the responsibilities of consumers themselves. This responsibility of consumers is not emphasised in trade mark law, which primarily deals with the position of competitors vis-à-vis one another.

Still, there are also other indications in the EC Guidance to the Directive that indicate that the expectations of the average consumer’s behaviour are not necessarily high. In particular, the EC Guidance stresses that the average consumer benchmark should be interpreted in the light of Article 114 TFEU, ensuring a high level of consumer protection.14 The EC Guidance also states that the most recent scientific findings, including those in behavioural economics, should be taken into account in the application of the Directive.15 It is in particular this behavioural movement that presses for a more realistic view of consumer behaviour.16 The big question is how this fits with an average consumer benchmark that would generally appear to presuppose rational decision-making.

Although the issues mentioned indicate that the average consumer does not necessarily have to be seen as a rational consumer and that it leaves some room for national enforcement authorities and courts (and perhaps in the future also for the CJEU) to take into account actual problems in consumer decision-making, the general line of the CJEUs case law so far is still that of expecting the average consumer to be rather attentive and critical, and not to be in need of extensive protection. At least as far as unfair commercial practices are concerned, there is much more emphasis on the consumer’s own responsibility than on the trader’s responsibility to act fairly. The EC Guidance may point towards a more consumer friendly interpretation in this respect, but it is important to bear in mind that this is merely a Commission working staff document without formal legal status. In the end, it is the CJEU that will decide the direction to be followed, and up to now there are no signs of what could be called a ‘behavioural turn’ .17 Hence, there is sufficient reason to be confused, but the case law has not changed so far and still shows more signs of reflecting desired behaviour than actual behaviour of the average consumer.

4.3 The Characteristics of the Average Consumer

The CJEU assumes certain typical behaviour of the ‘reasonably informed and reasonably observant and circumspect’ average consumer . What is meant by these characteristics and what is expected of the average consumer in terms of these characteristics?

First of all, the characteristic of being informed relates to the level of knowledge the consumer is assumed to have.18 It refers to the knowledge the consumer has or is expected to have, independent of the information provided by a trader in a particular case. This knowledge may concern the product or service at hand, such as in the Adolf Darbo case. In that case, the average consumer was assumed to know that garden fruit inevitably contains pollution residue, as the fruit was grown outside and was, therefore, exposed to air pollution.19 In this context little guidance can be found in the CJEUs case law, and it is difficult to say whether the CJEU has high or low expectations of the consumer in this respect. Apart from information about the product or service itself, the knowledge can also concern the marketing techniques used to sell a product or service. For example, in GB-INNO-BM the average consumer is assumed to be informed about the local sales conditions, in particular the difference between temporary sales and bi-annual sales.20 Note that in this context, the characteristic of being informed has considerable overlap with the characteristic of being circumspect, because the assumed knowledge of marketing techniques is closely related to the critical attitude of the consumer.

While being informed is about the level of knowledge of the consumer, being observant is about the intensity of the observations made by the consumer and the absorption of that information.21 It relates to the question what the level of attention of the consumer is regarding the information provided by the trader.22 A good example of this characteristic is offered by the labelling doctrine, under which the consumer is assumed to study the label of a product—including the list of ingredients—before making a purchase decision.23 Generally, it can be said that the CJEU mostly expects the consumer to process available information and to make informed choices.24 At the same time, the discussion above has shown that in trademark law the reaction of the consumer is assumed to be dependent on the type of product or service. While the level of attention of the consumer is assumed to be low when it concerns every day, low value products, the level of attention is generally expected to be higher when it concerns luxury goods or highly technical goods.25 As pointed out, this line of reasoning can, however, not be retraced in the misleading commercial communication cases of the CJEU.

The third and final characteristic, ‘being circumspect’, refers to the degree of critical attitude of the consumer towards the communication of traders. Hence, while being observant refers to the degree and intensity in which the consumer absorbs the information available, being circumspect refers to the processing of this information, i.e., how the consumer deals with the information, and the decision what to do with this information.26 A certain degree of criticism is expected of the consumer, as is shown by the cases of Mars, Clinique and Lifting.27 On the basis of these judgments the conclusion can be drawn that exaggerated advertising and product names generally are not expected to mislead the average consumer. Even more articulate on the critical attitude of the average consumer is Advocate General Trstenjak in Mediaprint, with the remark that the consumer is expected ‘to be capable of recognising the potential risk of certain commercial practices and to take rational action accordingly’. 28 The characteristic of being circumspect also covers the question whether the consumer gathers more information before making a purchasing decision. The Opinion of Advocate General Tesauro in Nissan suggests that, at least for high value products like cars, the consumer is expected not only to carefully compare, but also to extensively gather information in order to make the right purchasing decision, and thus not to merely rely on the information that is handed to him.29

4.4 Target Groups and Vulnerable Groups

Chapter 2 has shown that the Unfair Commercial Practices Directive in several ways provides the opportunity to take into account the specific behaviour of target groups and particularly vulnerable groups. In this sense the Unfair Commercial Practices Directive, with its emphasis to prevent the exploitation of vulnerable groups, gives a different impression than the majority of the CJEUs case law.

Firstly, the relevance of target groups and vulnerable groups is expressed by the wording in the Directive that the commercial practice should distort the economic behaviour of the average consumer ‘whom [the commercial practice] reaches or to whom it is addressed’. This seems to indicate that the average consumer benchmark can be adjusted on the basis of the targeted public.30 In some judgments the CJEU also mentions that the benchmark of the average consumer may depend on the public in issue.31

Secondly and more prominently, the Unfair Commercial Practices Directive recognises the relevance of target groups through the target group benchmark; if a commercial practice is directed at a particular target group, the average member of that group is taken as a standard rather than the average consumer . This benchmark enables protection of targeted vulnerable groups, but could also raise the threshold of protection if the practice is targeted at, for example, particularly knowledgeable consumers.32

An important question as to the interpretation of the target group benchmark—a question that remains unanswered in the CJEUs case law—relates to what can be seen as ‘targeting’. Should the target group be seen as the public that is reached by the commercial practice, e.g., the viewers of a TV ad or the readers of a magazine ad? Or should the public that the trader has in mind as its potential clientele, for example, be the benchmark? The EC Guidance mentions the advertising of ring tones for teenagers as an example of application of the target group benchmark .33 The benchmark applied in that case would be the average teenager. Yet, what if ringtone advertising is broadcasted on, for example, a sports channel watched by a general audience? Does it suffice that teenagers are the main purchasing group of the ringtones, or must teenagers be the main (or even the only) addressees of the advertising?

Thirdly and finally, the Unfair Commercial Practices Directive introduced the vulnerable group benchmark, which can protect vulnerable groups even if they are not targeted by the commercial practice. As has also been noted in Chap. 2, it is uncertain how and to what extent this benchmark can provide additional protection to vulnerable consumers. Although the benchmark was introduced to prevent the exploitation of vulnerable groups, the requirements for application of the benchmark seem to severely limit its potential to actually achieve this aim.34

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