Sonia Moine
THE RELATION BETWEEN THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE EU LEGISLATURE REGARDING THE DEVELOPMENT OF THE
NORMATIVE CONCEPT OF CONSUMER
Master track: International and European Union Law: European Union Law LLM
Thesis supervisor: dhr. dr. T.A.J.A (Thomas) Vandamme
Date of Submission: 14th of July, 2017
TABLE OF CONTENT I. Introduction
II. The development of the normative concept of consumer with the case law of the Court of Justice of the European Union.
1. The first introduction of the concept of average consumer, in cases related to free movement of goods and trade mark and advertising law.
2. The acceptance by the Court of Justice of the vulnerable consumer as a benchmark in certain situations.
3. A brief analysis of the use of those two concepts by the Court.
III. The evolution of the normative concept of the consumer by the European Union primary law and secondary legislation.
1. The important changes brought by the EU primary law with the Lisbon Treaty for consumer protection.
2. The use of the different concepts of consumer within the EU secondary legislation.
2.1. A general overview of various consumer directives and their use of the different concepts of consumer.
2.2. The clear introduction of the different normative concepts of consumer within the Unfair Commercial Practices Directive.
3. The problem of the vulnerability definition stemming from those directives.
IV. The mutual influence between the CJEU and the legislature when developing the normative concept of consumer.
2. The general relation between the CJEU and the EU Legislature.
3. The relation between the CJEU and the EU legislation within the context of the development of the normative concept of consumer
2.1. The influence of the EU legislation on the case law of the CJEU
2.2. The mutual influence and joint development of the different concepts of consumers by the EU legislation and the jurisprudence of the CJEU.
Abstract:
The general relation between the Court of Justice of the European Union and the EU Legislature is often faced with clashes and disputes, with the EU legislature trying to override certain judgments of the Court or to influence them, whereas the Court will try to annul those legislations or interpret them in a manner that fits its original view. What this thesis will try to assess, is the relation between the CJEU and the EU Legislature concerning the development of the normative concept of consumer, by first analysing the developments made by the CJEU in this regard, before studying the developments made by the EU Legislature, and finally providing a general analysis on how those two developments interrelate.
It is first the Court of Justice who developed the normative concept of consumer, by establishing the benchmark at the average consumer, in cases related to free movement of goods and trade mark and advertising. It only allowed to set the benchmark at the vulnerable consumer in very specific and exceptional circumstances.
The EU Legislature followed the CJEU’s jurisprudence, and started to slowly introduce the different normative concepts of consumer in various directives. However, the EU legislation remains unclear, and does not often mention which ‘consumer’ the law should protect, to the notable exception of the Unfair Commercial Practices Directive, which sets the benchmark at both the average as well as the vulnerable consumer.
The adoption of those various consumer directives by the EU legislature had a limited influence on the Court to take a weaker consumer than the average one as a benchmark, in cases interpreting those consumer protection directives. Nonetheless, it is only a limited influence as the average consumer remained the benchmark in cases related to free movement of goods and trade mark and advertising. The Court, in its turn, also influenced the Legislation who adopted the same definition of the average consumer, in order to provide more legal certainty for the Member States.
Therefore, the CJEU and the EU Legislature have influenced each other and have jointly developed a common approach, especially for the concept of average consumer, even if the position of the Court appeared to be slightly dominant over the Legislature. But it proved possible for the EU Legislature and the Court to adopt a common position without any clash nor dispute, in order to have more legal certainty.
I. Introduction
Consumer protection law is today an important field of European Union (EU) law. However, this has not always been the case. In the beginning, the main focus of the (then) European Community was the creation of a common market. The question of consumer protection only arose as it became more clear that the success of the internal market would not happen without consumers, as they are the ones purchasing the goods and services in all the different Member States of the EU.1 The improvement of the functioning of the internal market and the
protection of consumers are therefore interlinked. All these thoughts led to the adoption by the Council of the first European Consumer Programme in 19752, focusing on consumer
protection and information policy. This programme has been considered as the basis for the adoption of all later directives and regulations on consumer law.3 Since this programme, the
development of EU consumer law, which took two different ways, was extremely rapid.
The first way the EU developed consumer law was, obviously, through the legislative way, mainly with the adoption of several directives and regulations. There are today approximately 90 directives on various consumer law subject.4 Consumer protection became so relevant for
the EU, that the adoption of the Lisbon Treaty in 2007 also brought some major changes in the field, mainly with Article 169 TFEU stating the five fundamental rights of the consumer, as well as with articles 114 TFEU and 38 of the Charter of Fundamental Rights of the EU (CFREU) providing for a high level of consumer protection as the protection standard.
Next to the legislative development, the case law of the Court of Justice of the European Union (CJEU) also helped with the development of consumer protection law. A main issue first developed by the case law of the Court of Justice was the question of which concept of consumer should be protected. This question appeared in several judgments of the Court,
1S De Vries “Consumer protection and the EU single market rules – The search for the paradigm consumer”, 2012, Journal of European Consumer and Market Law, Zeitschrift für Europäisches Unternehmens- und Verbraucherrecht, Vol.1(4), pp.228-242, p.228.
2Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy, OJ C 92, 25.4.1975, p. 1–1.
3 Consumer Protection in the EU, policy overview, ERPS, European Parliamentary Research Service; Author: Jana Valent, September 2015 – PE 565.904, p.4.
with the famous Gut Springenheide5 finally defining the concept of average consumer,
creating a clear distinction between the average consumer and the vulnerable or weak consumer.
It is essential, in any legal system, to know which concept of consumer the law should protect, in order to bring more legal certainty. It does so by defining “all the rights and obligations between parties in B2C contracts.”6 Therefore, this issue of which concept of
consumer the law should protect became more central and relevant, and has been developed by both the CJEU and the EU legislation.
The general relation between the CJEU and EU Legislature is not always so pleasant. Some clashes may occur between them, with the Legislature trying to override the judgments of the Court, or the Court annulling certain EU legislation or interpreting them in a manner fitting its original view.7 When developing and using the different normative concepts of consumer,
it will be interesting to study the relationship between the Court and the EU Legislature. More specifically, to see whether the EU legislature has tried to override the developments made by the Court and to influence its judgments, or if they actually are in tune with one another.
The main research question this thesis seeks to answer is: how does the concept of consumer as developed by the Court of Justice relate to the developments made by the EU legislation regarding the concept of consumer? In other words, what is the relation between the Court and the EU Legislature concerning the development of the different concepts of consumer?
Thus, which concept of consumer has been used by the case law of the Court and by the EU legislation as the benchmark, and why? Are the Court and the EU legislation in tune with one another when developing those different concepts of consumers or has one tried to influence and override the other?
5Case C-210/96 – Gut Springenheide and Tusky / Oberkreidirektor des Kreises Steinfurt, 16 July 1998, ECLI:EU:C:1998:369.
6K. J. Cseres “The Regulatory Consumer in EU and National Law? Case Study of the Normative Concept of the Consumer in Hungary and Poland”, June 2016, Yearbook of Antitrust and Regulatory Studies, Vol.2016, 9(13), p.14.
7 G. Davies “, “Legislative control of the European Court of Justice”, 2014, Common Market Law Review, Vol.51 pp.1579-1608, p.1582.
To answer the main research question, first the development made by the case law of the Court of Justice will be studied, to see whether there has been a shift since Gut Springenheide to protect a more vulnerable consumer (Part II).
Part III will focus on the concept of consumer as protected by EU primary and secondary law in general, with special attention to the Unfair Commercial Practices Directive as it is one of the few directives clearly answering the question of which concept of consumer should be protected.
Part IV will try to analyse the relation between the CJEU and EU legislation when developing and using the different normative concepts of consumer, mainly by assessing whether those two parallel developments are in tune with one another or whether they have led to clashes and tensions, with one trying to influence or override the other .
II. The development of the normative concept of consumer with the case law of the Court of Justice of the European Union.
First, the introduction of the concept of average consumer in internal market and trade mark and advertising cases will be discussed (1). However, in certain exceptional cases, the Court has been using the concept of the vulnerable consumer as the standard (2). Last, a brief analysis will be provided on when and why the Court has been using each concept in its jurisprudence (3).
1. The introduction of the normative concept of the “average consumer” in the case law of the Court related to the free movement of goods and trade mark and advertising.
When consumer protection started to be legislated within the EU, it was only because consumer protection was considered to be a “market promoting objective of the EU” and the consumer was thus reduced to a position of an “active market participant”.8 It is no wonder
that if the idea of consumer protection was only to improve the internal market, that the first cases of the CJEU dealing with consumer protection were always linked with the internal market. In those cases, the Court had to assess whether national consumer protection measures would be considered as barriers to the free movement of goods. The emergence of the normative concept of consumer was therefore also developed by the CJEU in those cases;
in order to say which consumer benchmark to use when judging whether those national consumer laws are a barrier to trade within the internal market.9
Articles 34 and 35 TFEU prohibit barriers to the free movement of goods, by not allowing measures having equivalent effect to quantitative restriction in import and export. Nevertheless, there may be exceptions to this prohibition, which have been assessed by the CJEU in several cases.
The Cassis de Dijon case10, is the first essential case regarding consumer protection and the
concept of consumer itself. This case was concerned with the import into Germany of a French liquor (Cassis de Dijon) containing 15 to 20% by volume of alcohol. However, the German law provided that “only potable spirits having a wine-spirit content of at least 32% may be marketed in that country”.11 Rewe, the company who wanted to import the French
liquor into Germany, brought an action against the decision of the German authority forbidding the sale of the Cassis de Dijon. The German court decided to send a preliminary question to the CJEU, asking whether this national measure could be considered as a measure having an effect equivalent to restrictions on imports. The German government’s defence was that this measure was aiming at protecting consumers.12 The Court of Justice answered that
the German measure was a measure having equivalent effect to quantitative restriction. The interesting outcome of this case for this thesis is that the Court also accepted that this type of restriction can actually be justified in the interest of consumer protection. The CJEU will indeed consider that consumer protection measures, which are obstacles to the free movement of goods, can be justified under the rule of reason, if they are necessary to ensure consumer protection, and that they are not directly discriminatory, meaning that they apply to domestic and imported products the same way. 13
This case has therefore recognized the public interest of consumer protection. Cassis is also the starting point for the development of the normative concept of the average consumer, as
9V. Mak “Standards of Protection: In search of the 'average consumer' of EU law in the Proposal for a Consumer Rights Directives”, 2011, European Review of Private Law, Vol.19(1) pp.25-42, p.28.
10 Case C-120/78 – Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, 20 February 1979, ECLI:EU:C:1979:42.
11 Ibid, Cassis case p.651.
12 See Cassis case, p. 656.
the consumer was only considered as an active market participant. In this case, the Court had not in mind any weak nor vulnerable consumer, but more an average consumer that does not need any extra protection.
The Clinique case14 is one of the first cases introducing, in an implied manner, the normative
concept of average well-informed consumer.
This case, based on the free movement of goods, was about a German measure which prohibited the use of the name “Clinique” for marketing cosmetic products, whereas in other Member States the same products were called “Clinique”. The Court was not convinced by Germany’s arguments and considered that this national measure could not be justified on grounds of consumer protection. Cassis de Dijon set out the rule that consumer protection measures could be allowed only if they were necessary for consumer protection. The CJEU thought that the prohibition of using the name “Clinique” was not necessary to satisfy the requirements of consumer protection and the health of humans, as stated in article 36 TFEU. “The clinical or medical connotations of the word ‘Clinique’ are not sufficient to make the word so misleading as to justify the prohibition on its use on products market in aforesaid circumstances”.15 Therefore, the German law was considered as a measure having equivalent
effect to quantitative restrictions and could not be justified on grounds of consumer protection.
The case illustrates the clear choice of the Court to consider a sort of average consumer, even if at that time there was no explicit mention of the term. The fact that the CJEU did not accept that German consumers may be confused by the name “Clinique” could be sufficient to justify a prohibition, clearly shows that the court had in mind a sort of average consumer. According to the Court, reasonably circumspect consumers would still be able to make informed choices and not be confused. This obviously is a proof that some consumers, who are not reasonably circumspect, could be misled by the name “Clinique”, but the Court chose to use as a benchmark the reasonably circumspect consumer.16
14 Case C-315/92 - Verband Sozialer Wettbewerb eV v Clinique Laboratoires SNC and Estée Lauder Cosmetics
GmbH, 2nd February 1994, ECLI:EU:C:1994:34.
15 Ibid, Clinique case, para 23.
16 L. Waddington “Vulnerable and confused: The Protection of “vulnerable” consumer under EU law”, 2013,
The Court firmly believes in his “active and critical information seeker” consumer which is to the detriment of the less active and less informed consumer, who can be misled. 17
The Mars case18 is a further example where the CJEU takes into account a “circumspect
consumer”. This case, which was based on the free movement of goods but related to misleading advertising, concerned the product packaging made in a way to catch the consumer’s attention. According to a German consumer organization, it was misleading consumers. The Court of Justice argued that if there would be a prohibition on this product packaging it would hinder the free movement of goods, and such a prohibition could not be justified on grounds of consumer protection. The court stated that “reasonably circumspect consumer 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 product”.19 Therefore, a consumer who is less intelligent than average could not be accepted
by the Court in this case.20
This Mars judgment is one of the clearest examples of the CJEU to use the reasonably circumspect consumer as the benchmark.
At this stage one remark should be made, that in the absence of harmonisation in free movement cases, the competence to set the standard of consumer protection normally remains with the Member States. Yet, the CJEU has been interfering with this national competence, as the Court has been striking down many national consumer protection measures, by using a general principle of EU law, the concept of proportionality.
What is also very interesting to see, is that in cases which are not related to free movement of goods but to trade mark and advertising, it is also this concept of well-informed and circumspect consumer that prevails.
17 De Vries 2012 (supra note 1) p.231.
18Case C-470/93 - Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v Mars GmbH, 6 July 1995,
ECLI:EU:C:1995:224.
19 Ibid, Mars case, para 24.
The Nissan case21 is a good example of this. This judgment was concerned with the directive
84/450/EEC of 1984 on misleading advertising, which prohibits advertising which deceive or are likely to deceive consumer, without referring to which concept of consumer should be protected. In its ruling, the Court also added an extra criterion, considering that “a significant number of consumers” must be misled.22 It is the first time that the court assesses a
quantitative criterion, e.g. the number of consumers being misled. But it also implies, as Duivenvoorde explains, that consumers are not thought to be misled easily, if they have information available.23
Again, less informed, or more vulnerable consumers are not protected. The fact that this case is based on the interpretation of EU secondary legislation does not change the situation of taking more vulnerable consumers into account.
After all the case law mentioned above, in 1998 the famous Gut Springenheide judgment finally summarized and gave a clear definition of the concept of average consumer to use as the benchmark.24 This case, which interestingly enough, was not based on the internal market,
but on the regulation of 1990 on certain marketing standards for eggs; was concerned with the sale, packaging and labelling of eggs, and whether it could mislead certain consumers. The German court asked the Court of Justice what type of consumer should be protected in case of misleading practice. The CJEU ruled that the benchmark to use in order to know whether a consumer was misled is the average consumer who “is reasonably well-informed and reasonably observant and circumspect”.25 The Court has further explained that national
courts should also be able to judge without having to order an expert's report or a consumer research poll, even if it is still allowed to use them as reference.
The CJEU has finally explicitly made clear which concept of consumer to take as benchmark.26
21 Case C-373/90 - Criminal proceedings against X, 16 January 1992, ECLI:EU:C:1992:17.
22 Ibid, Nissan case, para 15-16.
23Duivenvoorde, B.B. 2014 “The Consumer benchmark in the Unfair Commercial Practices Directive”, accessible through the following link: https://pure.uva.nl/ws/files/2068830/142773_thesis.pdf p.37.
24 Waddington 2013 (supra note 16), p.763
25 Case C-210/96 Gut Springenheide case, Para 37.
The concept of average consumer is therefore defined by two different aspects. The first one, is the Gut Springenheide definition, meaning that only well-informed and observant and circumspect consumers should be protected. The second aspect, which has been explained in the Lidl Belgium judgment27 and mentioned in Nissan is the quantitative criterion. The Lidl
Belgium judgment was based, just like Nissan, on the misleading advertising directive. The case concerned a competitor of Lidl, Colruyt, active in the same economic sector as Lidl (i.e. . chain stores and supermarkets), who sent a leaflet to its customers stating how much money consumers would save by shopping in Colruyt instead of Lidl. The Court stated that “it is for national courts to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which the advertising is addressed, whether the latter may be misleading. Those courts must take into account the perception of an average consumer of the products or services being advertised who is reasonably observant and circumspect (…). The court has thus held that an omission may render advertising misleading, in particular where, bearing in mind the consumers to which it is addressed, the advertising seeks to conceal a fact which, had it been known, would have deterred a significant number of consumers from making a purchase”.28
It is thus, necessary to consider how many consumers would be misled. This quantitative criterion, though, only appeared in few cases related to misleading or comparative advertising, whereas in cases based on free movement of goods, there is no mention of this quantitative aspect. There seems to be no real explanation, why the Court has used this criterion in the Lidl Belgium and Nissan cases and not in other judgments, and it seems to be on a case by case basis. Therefore this aspect is not applied so strictly by the Court and the first criterion remains the most important part of the definition of the average consumer.29
The definition in Gut Springenheide emphasises on the amount of information that the consumer is supposed to receive in order for him/her to be protected. The consumer is sufficiently protected if he can be provided with the necessary information.30 Legislation
obliging information disclosure are considered enough protection for consumers. The idea behind it is that consumers should be able “to use information and participate actively in the 27 Case c-356/04 – Lidl Belgium GmbH & Co. KG v Etablissementen Franz Colruyt NV, 19 September 2006, ECLI:EU:C:2006:585.
28 Ibid, Lidl Belgium case para.77-80.
29 Mak 2011 (supra note 9), p.28.
30 B. Duivenvoorde “The Protection of Vulnerable Consumer under the Unfair Commercial practices Directive”, 2013, Journal of European Consumer and Market Law, Vol.2(2) pp.69-79, p.70.
market by making informed choices, rather than their choices being defined by governmental regulations”.31 The Court considers that “most consumers are sufficiently robust and
well-informed to take care of themselves in the market place”.32
It is now very clear, that according to the jurisprudence of the Court, national courts, when determining the level of protection for consumer should consider the average consumer, who is well informed, reasonable and circumspect. Other cases have also confirmed that position of the CJEU, such as Procureur de la République v X, where again the Court has rejected national consumer protection measures as hindering the free movement of goods and have “relied on the reasonably circumspect consumer who is able to process information and make informed choices”.33 The Court of Justice does not seem to accept justification based on a
consumer who would be less informed or more vulnerable.There is, therefore, a very high threshold for consumer protection to become necessary, and for strict rules of national law to be justified.34
One reason that might explain the emphasis put by the Court on the average consumer who is well-informed, is the fact that the information requirement was considered necessary in order to ensure competition, and in those days, the Court only had the internal market as an objective to achieve,35 the protection of consumer was not an objective in itself. Therefore,
the CJEU annulled over protective national consumer measures, and introduced a definition of the average consumer that should be used in all Member States. Nonetheless, it always remained for national jurisdictions to decide of the average consumer based on the definition given by the Court.
However, in other judgments, the Court has sometimes made a distinction between different categories of consumers. The Court has in some situations accepted to set the benchmark on a different concept, meaning a more vulnerable consumer.
2. The acceptance of the vulnerable consumer in certain cases 31 Cseres 2016 (supra note 6), p.19 quoting Weatherill 2001 p.174.
32 De Vries 2012 (supra note 1), p.231, quoting Weatherill/Beaumont 1999. 33 Cseres 2016 (supra note 6), p.18.
34 Mak 2011 (supra note 9), p.29.
35G. Howells, H-W. Micklitz, T. Wilhelmsson, “Towards a better understanding of unfair commercial practices”, 2009, International Journal of Law and Management, Vol. 51 Issue :2, pp.69-90, p.73.
The cases analysed in the previous part illustrate the tendency of the CJEU to use the concept of average consumer when assessing the level of consumer protection, rejecting all national measures which might be more protective. The only exceptional case is the following one. The very notion of "vulnerability" or "vulnerable consumer" has first appeared in the 1989 Buet judgment36, which was based on the free movement of goods. This case concerned the
sale of educational encyclopaedias to people who are behind with their education. The court said that this fact "makes them particularly vulnerable when faced with salesmen of educational material who attempt to persuade them that if they use the material they will have better employment prospects"37. It is one of the rare times that the CJEU found a
national measure restricting the free movement of goods acceptable on the grounds of consumer protection by using the vulnerable concept of consumer. The Court has ruled differently here than in other judgments based on free movement of goods this way because it did not “reflect a normal situation”, as there was a greater risk of purchase by people who are behind with their education, which makes them particularly vulnerable.38 According to
Stuyck,39 Buet also illustrates the autonomy of the Member States to determine which
measures to take in order to protect the consumers and the respect of the Court of some national sensitivities, which is supposed to be the normal way in internal market cases without harmonisation.
However, in many other cases, the Court has been striking down national measures that were over-protective for consumers, therefore the CJEU has been interfering with this national competence of setting the standard of protection. When the Advocate General Gulmann on his opinion of Clinique, thought that there are linguistic, social or cultural differences between consumers in different Member States,40 meaning that certain products could mislead
consumers in one State but not in another one, he did not have the idea of the average
36 Case C-382/87 - R. Buet and Educational Business Services (EBS) v Ministère public, 16 May 1989, ECLI:EU:C:1989:198.
37 Ibid, Buet case, para 13.
38 De Vries 2012 (supra note 1), p.232.
39 J. Stuyck, "The Notion of the Empowered and Informed Consumer in Consumer Policy and How to Protect the Vulnerable Under Such a Regime" in G. Howells et al (eds.) The Yearbook of Consumer Law (2007), Aldershot: Ashgate, pp. 167-186, p.167 to p.174.
40 Opinion of the Advocate General Gulmann, 29 September 1993, on Verband Sozialer Wettbewerb eV v
consumer in mind.41 The Court, however did not follow his opinion, striking down the
national consumer measure as being over protective and not taking into account national sensitivities.
The Court has quite a consistent jurisprudence, always using the standard of the average consumer in every case based on free movement of goods, and trade mark and advertising. Only in cases faced with exceptional circumstances the Court will rule otherwise.
Yet, this use of the concept of average well-informed consumer by the CJEU did not prevent certain Member States' national courts to find other ways to protect weaker or vulnerable consumers, as the CJEU has stated that it was for the national courts to assess who is the average consumer. Examples of Member States’ national courts trying to provide more protection for consumers can be found in the English case Office of Fair Trading v Purely Creative Ltd and other; or in several judgments made by the Italian Autorita Garante della Concorrenza e del Mercato on issues related to health advertising. Those national cases have usually considered that the "average" consumer is affected, as soon as it is considered that his vulnerabilities are being exploited.42 This approach of national jurisdictions illustrates the will
of the Member States to protect a more vulnerable consumer. Therefore, even if the Court is trying to put the emphasis on the average consumer, giving a precise definition, it will be left to the Member States to decide who is the average consumer, allowing the Member States to sometimes provide further protection. The average consumer seems to be a quite flexible concept in itself, but the Court has been striking down national measures, especially German ones, protecting superficially weak or vulnerable consumers.
3. A brief analysis of the two concepts used by the Court
In the 1980s and 1990s most of the consumer law cases were based on the internal market, and evaluating whether the national measure protecting consumer was a barrier to the free movement of goods. In all those cases the Court has emphasised the so-called average consumer. The only case with a different ruling is Buet, where the Court accepted protection
41 De Vries 2012 (supra note 1), p.239.
42 Duivenvoorde 2013 (supra note 30) p.79, referring for example to AGCM 08.09.2010, n21539 (PS1898), Boll. 37/2010 (Pool Pharma – Kilocal).
towards a more vulnerable consumer, because of the exceptional situation of the case. Therefore, it is only according to the context and situation of each case that the court will assess which concept of consumer to use. However, the Court has never ruled in a similar way since 1989, and has never mentioned again the notion of “vulnerability”, and one might question if the Court will ever find another case with an exceptional situation requiring to set the benchmark at the vulnerable consumer.
Thus, it is mainly the Gut Springenheide’s average consumer that prevails in cases related to free movement of goods and trade mark and advertising. The explanation behind this consistent use of the average consumer by the Court is that in the 1980s and 1990s national consumer laws were considered as over protective and an obstacle to the free movement of goods and internal market, which was the main objective of the European Communities back then. Germany, especially, was considered to have over protective consumer laws, as its benchmark was the “superficially observing and generally uncritical consumer”.43 The
standard of the average consumer was introduced by the CJEU to challenge those national laws. 44 The Mars and Clinique cases are also very good examples of the clash between the
benchmark applied in Germany and the free movement of goods.45.
Nonetheless, as will be discussed in the following part, consumer protection became more and more relevant, with the adoption of several new directives and regulations on consumer law. The consumer was not only seen as the well-informed and circumspect and observant consumer, but also as the weaker party to a contract. When the court will interpret some of these more recent consumer directives, its view will slowly change for a more consumer oriented approach, as will be discussed in the last part of the thesis.
III. The normative concept of the consumer used in the EU primary law and secondary legislation.
43 Duivenvoorde 2013 (supra note 30), p.70. 44 Duivenvoorde 2013 (supra note 30), p.70.
In the 1980s and 1990s the Union legislator was more relying on the effects of the internal market and competition law to provide consumer protection46. However, the EU Legislature
realised that improving the functioning of the internal market also goes through the development of consumer legislations.47 In other words the EU adopted several directives
within the context of internal market, which also address consumer issues48 In the 1990s, the
EU also started to develop legal instruments directly concerned with consumer protection. But most of the time, the EU Legislature has actually chosen those two legal bases (the functioning of the internal market and the protection of consumer) for consumer legislations.49
This part of the thesis will now focus on the development of the normative concept of consumer developed within ‘written’ EU law. First the evolution of consumer protection within EU primary law will be analysed (1), before focusing on secondary legislation which developed the normative concept of consumer (2), and last the issues deriving from the lack of proper definition of vulnerability within the EU secondary legislation will be explained (3).
1. The changes brought by the Lisbon Treaty on EU consumer protection issues.
As explained earlier, the Union's first focus was the development of a functioning internal market, which was focused on the abolition of trade barriers between Member States by forbidding measures having equivalent effect to quantitative restriction, with the CJEU assessing very strictly cases where there could be exceptions to these restrictions. Therefore, most of the earlier treaties were not very concerned with social issues. But later, a broader concept of the internal market was introduced, which included more social considerations, such as consumer safety or environmental requirements. The Lisbon Treaty illustrates this
46 N. Reich and H-W. Micklitz “Economic Law, Consumer Interests, and EU Integration”, Chapter 1 in “European Consumer Law”, 2014, by N. Reich, H-W. Micklitz, P. Rott and K. Tonner in Ius Communitatis V, 2nd Edition, Intersentia, pp.1-65, p.46.
47T. Wilhelmsson “The abuse of the “confident consumer” as a Justification for EC Consumer Law”, 2014,
Journal of Consumer Policy, Vol.27(3), pp.317-337, p.319. 48S de Vries 2012 (supra note 1), p.241.
broader vision, by finally taking into account social protection and fundamental rights.50 This
idea of including social aspects within the internal market is emphasized in article 2 TEU which statesthat the market integration must be balanced with social aspects.
The Lisbon Treaty strengthens consumer protection, which became a shared competence between the Union and the Member States (article 4(2)(f) TFEU), in many different ways. For example, the so-called integration clause of article 12 TFEU states that “consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.” Consumer protection now has to be balanced with other issues, such as the Internal Market. Moreover, Title XV of the TFEU, which only contains article 169, is specifically aimed at consumer protection, as article 169(1) provides: “ In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.”
Another way Lisbon has strengthened the rights of the consumer is with the now binding CFREU. The Charter is also concerned with consumer protection issues, with article 38 stating that “Union policies shall ensure a high level of consumer protection.”
Articles 4(2)(f), 12, 114(3) and 169 TFEU and article 38 of the CFREU constitute the primary law for consumer policy.
Yet, the Treaty only states that consumer protection has to be taken into account in other policies, or that the law should achieve a ‘high level’ of consumer protection, but it does not explicitly answer the question which concept of consumer the law should take as a benchmark. Different interpretations can arise from this lack of clarity. The fact that the Treaty emphasizes on the notion of “high level of consumer protection” may entail to set the benchmark at a more vulnerable or weak consumer. Additionally, by not answering the question of which concept to use, the Treaty did not recognize that the law should only protect the average well-informed consumer, developed by the CJEU.51 This could leave
some room for interpretation to protect the vulnerable consumer. It seems more likely, though, that the average consumer should be the benchmark, as the Treaty did not explicitly 50De Vries 2012 (supra note 1), p.236.
mention the vulnerable consumer but did mention the right to information in article 169(1) TFEU, as one way to ensure consumer protection, which is related to the notion of the average consumer.
If the Treaty does not give a clear cut answer to this question, EU secondary consumer protection law has introduced the different concepts of consumer in several directives.
2. EU secondary law on consumer protection.
There is a very high number of EU legislation providing consumer protection. There are, indeed, today about 90 directives related to consumer issues. They include internal market directives or regulations which address consumer protection, or directives regulating other fields, such as transport,52 but also directives who have been designed to provide consumer
protection.The primary task of consumer law is usually connected with the idea to protect the decision-making of consumers, by improving the amount and the relevance of information they should receive. 53
Some of these consumer protection measures have helped in the development of the normative concept of consumer as first developed by the Court. It is essential to know what concept of consumer each type of legislation uses as the benchmark, in order to know who the law protects.
First a general overview of various consumer-related directives and their use of the different concepts of consumer will be introduced (2.1.), before analysing the Unfair Commercial Practices Directive, as it is the only directive providing some clarity on which concept of consumer to use as a benchmark (2.2).
2.1. A general overview of various consumer legislation and their use of the different concepts of consumer.
52 See for instance Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ L 46, 17.2.2004, p. 1–8.
It is common knowledge that most of the directives trying to harmonise consumer law are generally very consumer protective, imposing a higher level of consumer protection than a free movement legislation would provide. 54
Nevertheless, in most of the oldest directives related to consumer protection there is actually no mention of the average or vulnerable or weak consumer. Indeed, when looking at several directives such as directive 93/13/EEC on Unfair Contract Terms, or directive 1999/44/EC on Consumer Sales Good, it is not written which concept of consumer should be protected. But the fact that these directives were providing a high level of consumer protection could, however, imply that the benchmark should be set at a more weak consumer.
Finally, in the 2002 Universal Service Directive55, a reference to disfavoured groups of
consumer was introduced.56 In article 7/23 of the amended Universal Service Directive
2009/136/EC disabled persons are granted some special rights: “Member States shall take specific measures to ensure that access to, and affordability of, the services identified in Article 4(3) and Article 5 for disabled end-users is equivalent to the level enjoyed by other end-users.”
Since then, in several EU directives the notion of vulnerable consumer has been mentioned in an implicit manner. Indeed, in various EU consumer protection directives certain provisions can be interpreted as providing for “additional de facto protection for consumers who are disadvantaged or vulnerable for one reason or another”.57 This is the case in the Consumer
Credit Directive58, which is concerned with the full harmonization of certain aspects related
to consumer credit agreement. The goal of the directive is to provide for consumer protection, by ensuring that all consumers receive certain specified credit agreement information. There 54Mak 2011 (supra note 9), p.27.
55 Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, OJ L 337, 18.12.2009, p. 11–36.
56 N. Reich and H-W. Micklitz 2014 (supra note 45), p.47
57 Waddington 2013 (supra note 16) p.761.
58 Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property, OJ L 60, 28.2.2014, p. 34–85.
is no explicit reference made to the vulnerable consumer in the directive, however, all consumers should benefit from the provision of clear written information, with Recital 27 of the directive stating that the information “should be explained to the consumer in a personalized manner”. It could imply that professionals should make some additional efforts when providing information to certain groups of consumers such as older people.59
Some directives also contain explicit reference to the notion of “vulnerable consumer”. This is the case with the General Product Safety Directive60. The directive aims at providing a high
level of product safety for consumer products. In the Recital 8 “particularly vulnerable” consumers are mentioned, and one of the factors to take into account in assessing product safety is the risk they pose to such consumers, in particular children and the elderly. Also article 1(b)(iv) of the directive explicitly mentions to take into account “categories of consumers at risk when using the product, in particular children and the elderly” when assessing the safety of a product.
The Consumer Rights Directive (CRD)61 is the latest directive on consumer protection. The
main goal of this directive is to improve the functioning of the internal market, through a high level of consumer protection.62
Regarding which concept of consumer the CRD should use as the benchmark, it would be natural to assume that because the directive is a consumer rights directive, and aiming at a high level of consumer protection, it would make use of the vulnerable consumer.. Recital 34, indeed, provides that the directive “should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.”
59Waddington 2013 (supra note 16), p.761-762.
60 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, OJ L 11, 15.1.2002, p. 4–17.
61 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64–88.
The last sentence of the Recital, seems to set the benchmark at the average consumer instead of any weak or vulnerable consumer. This makes sense when the main goal of the directive is the functioning of the internal market, with the idea of rebalancing the interests of the consumers and of the traders.
But for a Consumer Rights Directive there is not much emphasis on the concept of vulnerable or weak consumer, which might be one of the reasons why this directive is considered as a failure by some scholars. 63
In most of the legal instruments related to consumer protection there is no mention, implicit or explicit, of which concept of consumer to use as benchmark. It remains unclear which concept of consumer most of this legislation wishes to protect. This might benefit the concept of average consumer, as it has been developed and used by the Court and has not been overridden by the EU legislation. Moreover, even if secondary legislation has not mentioned explicitly the term of average consumer, in most of the legislation the reference is made to the information requirement, which is directly linked to the concept of average consumer. But the fact that most of the consumer directives are trying to provide a high level of consumer protection, could also imply that the Legislature would want to set the benchmark at a weaker consumer.
However, it would appear that the starting point in the EU Legislature is the concept of average consumer, with sometimes some exceptional reference to a vulnerable consumer.
2.2. The clear introduction of the different concepts of consumer within the Unfair Commercial Practices Directive.
The Unfair Commercial Practices Directive64 (UCPD) is the only legislative instrument that
has been using different normative concepts of consumers in a clearer manner.
63K. Tonner “The Consumer Rights Directive and its Impact on Internet and other Distance Consumer Contracts”, Chapter 9 in “European Consumer Law”, 2014, by N. Reich, H-W. Micklitz, P. Rott and K. Tonner in Ius Communitatis V, 2nd Edition, Intersentia, pp.393-414, p.393.
64 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, OJ L 149, 11.6.2005, p. 22–39.
The directive was adopted in 2005 and had two main goals in mind: achieving a high level of consumer protection and improve the functioning of the internal market.65 These goals will be
achieved through the main purpose of the UCPD which is to prohibit unfair commercial practices towards consumers, which may harm their economic interests.
The original proposal of the UCPD only intended to protect the average consumer. This led to the adoption of recital 18, which codified the definition of the average consumer in Gut Springenheide: “the average consumer, who is reasonably well-informed and reasonably observant and circumspect”. The UCPD finally gave the average consumer from the case law statutory authority, standing and permanence.66
However, during the proposal some criticism arose amongst the Economic and Social Committee, as well as within certain Member States and the European Parliament. They were afraid that the average consumer benchmark would make the UCPD lose its protective nature. This led to the introduction of the vulnerable group in article 5(3).67 This article
provides a special protection from commercial practices which are likely to distort the economic behaviour for particularly vulnerable consumers, 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.”.
Next to the protection of the vulnerable consumer, in article 5(2)(b), the directive is referring to “targeted groups” of consumer. This target group benchmark will only be applied if a commercial practice is directed towards a particular group of consumers, such as elderly or teenagers.In that case, the standard will be the average member of that group. The targeted group of consumer, which is a concept that was introduced within this directive can also be considered as a way to protect vulnerable consumers. 68
This means that the directive protects particularly vulnerable consumer as well as targeted groups of consumers from unfair commercial practices. This is done by assessing the commercial practice from the perspective of the average member of that targeted group or
65Ibid, Article 1 UCPD.
66 R. Incardona and C. Poncibò, “The average consumer, the unfair commercial practices directive, and the cognitive resolution”, 2007, Journal of Consumer Policy, Vol.30(1), pp.21-38, p.26.
67Duivenvoorde 2013 (supra note 30), p.71.
from the perspective of the average member of the vulnerable group.69 Nonetheless, it
remains unclear when the benchmark of the vulnerable group and of the targeted group should apply. Article 5(3) should only apply if the vulnerable group is not targeted.70
Furthermore vulnerable consumers are not that well protected for several reasons. First the vulnerable group must be clearly identifiable which is not well defined. Moreover, the commercial practice must materially distort the economic behaviour of the vulnerable group only. Last but not least, the benchmark only applies if the traders know or should have known that the vulnerable group was going to be affected.71 Therefore, many criteria must be
fulfilled before protection for the vulnerable consumers can be granted.
The main idea behind the UCPD is, obviously, to protect all types of consumers from unfair commercial practices, but with a particular focus on the average consumer. However, consumers who are mentioned in one of the groups of article 5(3) should still be provided with a higher level of protection than the average consumer.72 Additionally, the concept of
average consumer should always be read with article 114 TFEU in mind.73
Yet, it is admirably one of the only directives making explicit reference to the concept of average consumer, as well as introducing some more clear provision for the vulnerable one. Therefore, in the EU Legislature the average consumer would be the starting point, with some extra protection for vulnerable consumer
A problem arising from the UCPD and those other directives is the definition of vulnerability. Vulnerability is only understood in terms of “groups of consumers”. This would imply that certain consumers who are exposed to certain commercial practices would not be protected if they are not part of a vulnerable group.
69Duivenvoorde 2013 (supra note 30) p.70-71
70Duivenvoorde 2013 (supra note 30) p.71.
71Duivenvoorde 2013 (supra note 30), p.71.
72Guidance on the implementation/application of directive 2005/29/EC on unfair commercial practices, accompanying the document “communication from the commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions”, A comprehensive approach to stimulating cross-border e-commerce for Europe’s Citizens and Businesses, {COM(2016) 320}, Brussels, 25.5.2016, SWD(2016) 163 final, p.46.
3. The issue of the definition of vulnerability arising from the directives
There is no proper definition of vulnerability, neither in the case law nor in the EU legislation. Buet tried to give some sort of answer, as well as the UCPD, but the definition of vulnerability seems to remain unclear in the legislation and the case law, only taking into account certain groups of people.
In the UCPD vulnerability is defined in different groups. This entails certain restrictions, as it would appear that any consumer can be a victim of unfair commercial practices, and that every consumer can one day be considered as a vulnerable one.74 It might be true that certain
groups, such as children or elderly might be more vulnerable in general, but vulnerability is depending on specific circumstances. Vulnerability is connected to the context where the consumer finds himself.
Different definitions of vulnerability therefore exist within the literature, with two main categories: the first category comprises consumers with personal characteristics that makes them particularly vulnerable, such as their age; the second category encompasses a broader concept, where it is considered that each consumer can be vulnerable according to the situation and context where he/she is.75 This last idea of vulnerability means that “Consumers
may move in and out of states of vulnerability”.76 Many scholars share this view, that “most
consumers are vulnerable at least in some situations”.77 Therefore, vulnerability cannot be
understood as a static state, just referring to personal characteristics such as age, but is more
74Duivenvoorde 2013 (supra note 30), p.73-74.
75 Executive summary of the EU Commission (2016), Consumer vulnerability across key markets in the European Union (EACH/2013/CP/08), accessible through this link
http://ec.europa.eu/consumers/consumer_evidence/market_studies/docs/vulnerable_consumers_exec_sum_27_0 1_2016_en.pdf p.2.
76 Ibid, executive summary of the study, p.2.
77 Wilhelmsson, "The Informed Consumer v the Vulnerable Consumer in European Unfair Commercial Practices Law" in , in G. Howells et al (eds), The Yearbook of Consumer Law (2007), Aldershot: Ashgate, pp.221-227, p.211 to p.213.
a dynamic state.78 Vulnerability is multi-dimensional,79 and can have different forms and
different causes.80
In order to face the challenge of defining properly the concept of vulnerability, the European Parliament, in a resolution has suggested to follow those two ideas of vulnerability. Vulnerable consumers should also include consumers who are “placed in a state of temporary powerlessness resulting from a gap between their individual state and characteristics on the one hand, and their external environment on the other hand, taking into account criteria such as education, social and financial situation etc.”, meaning that all consumers, at some point in their life can become vulnerable due to some external factors and their interactions with the market.81
Furthermore, it may seem that even the average consumer, who has been properly defined by the CJEU, might actually be more vulnerable than the Legislator and the Court have assumed.82 Indeed, a heavy emphasis is put on his ability, in all circumstances, and for all
products, to use in a clear manner the information provided to him, based on the assumption that with such information he will make wise decisions.83 The CRD improved this standard,
by including that the information had to be provided to consumers “in a clear and comprehensible manner.” Yet, this might not be sufficient. Consumers, even the average one, do not always read all the information provided, especially when the essential information is surrounded by less important information, which makes it very difficult for consumers.84 The
fact that the average consumer is less of a rational, circumspect and well-informed person has also been confirmed in some studies and researches. In a study on consumer vulnerability of 2016, the Commission also examined the concept of average consumer. One conclusion of 78 Waddington 2013 (supra note 16), p.767.
79 Guidance on the implementation of the UCPD (supra note 73), p.47.
80Duivenvoorde 2013 (supra note 30), p.79.
81European parliament resolution of 22 May 2012 on a strategy for strengthening the rights of vulnerable consumers (2011/2272(INI)), C 264 E/I, Recital D p.13.
82Waddington 2013 (supra note 16), p.770.
83Waddington 2013 (supra note 16) p.765.
84S. Weatherill , “The Consumer Rights Directive: How and why a quest for “coherence” has (largely) failed”, 2012, Common Market Law Review, Vol.49(4), pp.1279-1318, p.1294.
that study is that the average consumer himself was not willing to take any risk in decision-making, even if he was provided with all the information. 85 Therefore it can be assumed that
the average consumer does not feel confident enough.
It would appear that that the average consumer is far less knowledgeable and informed than the case law and the legislation assume. As explained, vulnerability is not static, therefore, even the average consumer may be in a phase of vulnerability, depending on the situation and context. This average consumer, may then seem to be quite “mythical” to use Waddington’s words. 86
In the other hand, certain opposite scholars have considered that the average consumer does not need to be well-informed in a very detailed-manner, but that being averagely informed is enough. They also have been against the introduction of the vulnerable consumer in general, stating that it was introduced in order to soften the rigidity of the average consumer, but that vulnerability lacks practical and logical foundations.87
Therefore, the notion of vulnerability remains unclear today and subject to discussion.
After having exposed the different developments made by the Court regarding the average and the vulnerable consumer, and the developments made by the Legislature regarding the same concepts, it will be interesting to see how those two developments interrelate and whether one has influenced the other.
IV. The mutual influence of the CJEU and the EU legislation regarding the development of the normative concept of consumer
1. The general relationship between the Court of Justice and the EU legislature.
85Cseres 2016 (supra note 6), p.23, referring to the study “Consumer vulnerability across key markets in the European Union” (EACH/2013/CP/08), accessible through the following link: http://ec.europa.eu/consumers/consumer_evidence/market_studies/vulnerability/index_en.htm
86Waddington 2013 (supra note 16) p.772.
In order to answer the research question, how the normative concept of consumer as developed by the CJEU relates to the concept developed by the EU legislature, it is important to first explain their usual relationship in a more general context.
The legislative power within the EU is held by the Commission, the Council and the European Parliament, acting together in the different legislative procedures in article 289 TFEU to adopt any EU secondary law. The Court of Justice has the right, as established in article 263 TFEU to review judicially any legal acts of the EU Institutions.
The Court also has to interpret EU secondary legislation according to the Treaties. However, it may happen that the interpretation chosen by the Court does not suit the Legislature. Sometimes, the Court may go way too far when interpreting the law, and sometimes it might give a completely erroneous interpretation of the law. This can happen for two different reasons, either the Court itself just does not interpret properly, or it is caused by a law which is not perfectly written, leaving some room for interpretation. 88
The CJEU is famous for having a very purposive interpretation, sometimes even “over-purposive” in its judgments, usually extending the EU’s powers, which does not always please the Member States. Therefore, when the Court is interpreting, it can have some real impacts for the national and European policies.89
A solution, when the Member States or the EU Legislature itself are not happy with certain judgments of the CJEU, is to adopt legal acts which may override the rulings of the Court. Nonetheless, it is true that when the Court is interpreting secondary legislation, it can be amended by the Legislature, but those amendments themselves will have the possibility to be interpreted by the Court, who can annul those new amendments. Thus, any new EU legislation trying to override the judgments of the Court may simply be annulled by the same court. 90
Nevertheless, there have been attempts by the legislature to sometimes influence the jurisprudence of the Court, by adopting “corrective legislation” as Davies calls it. However, it
88G. Davies “Legislative control of the European Court of Justice”, 2014, Common Market Law Review, Vol.51 pp.1579-1608, p.1579.
89 Ibid, p.1580.
may not always work, the Court will still have the possibility to annul the law, to interpret it in a purposively manner, or just to avoid it.91
One clear example of this failure by the legislature to influence the Court is the Vatsouras case.92 In this case, a Greek citizen was looking for work in Germany and applied for
benefits. Previous case law of the court found that free movement of workers could be entitled to benefits in a host Member Sates if they have been genuinely seeking work there for a certain period, and if the benefits are intended to facilitate access to the labour market. Most of the Member States were unhappy with the court’s interpretation, which led to the adoption of the Citizens’ Rights Directive, with its article 24 providing that work-seekers shall have no right to social assistance. This article 24 was an attempt to override the case law of the Court. But in Vatsouras, the Court found that where a benefit facilitates access to the labour market it cannot be considered as social assistance. The conclusion of this case is that even when the EU legislature has tried to override the case law of the court, the CJEU managed to interpret the new law in a way which fits its view, and not taking into account the idea behind the new directive.93
Sometimes, on the other hand, it can happen that the legislature will consider the judgments of the Court very good, and will codify them in the legislation or even primary law (see for example the ERTA doctrine of implied powers which has been codified in the TFEU). It may also happen that the Court makes concessions to national measures because of their local importance, taking into account their legitimate interests.
The court may be considered to have the last word on interpretation, but it should accept that it does not have exclusive ownership expertise over all these matters, so that the views of the legislature are not just to be absorbed within its vision, but are also to contribute to that vision: interpretation should be a shared activity.94
91Davies 2014 (supra note 88), p.1581.
92Case C-22/08 Anthanasios Vatsouras (C-22/08) and Josif Koupatantze (C-23/08) v Arbeitsgemeinschaft
(ARGE) Nürnberg 900, 4th June 2009, ECLI:EU:C:2009:344.
93Davies 2014 (supra note 88), p.1589-1600.
2. The relation between the CJEU and the EU legislation within the specific context of the normative concept of consumer.
2.1. The limited influence of the EU legislation on the case law of the CJEU.
After having exposed above the general relation between the CJEU and the EU legislation, now this relation will be studied within the context of the normative concept of consumer.
The Court has first dealt, in the 1980s and 1990s with the normative concept of consumer in cases either related to free movement of goods or to trade mark and advertising.95 The
purposive interpretation made by the Court in these cases led to the adoption of the normative concept of average consumer, and only in exceptional circumstances would the Court use the vulnerable consumer benchmark.
At the very same time, in the 1990s that the Court established this new concept of average consumer, the EU Legislature adopted several legal instruments related to consumer protection. Most of this legislation did not refer to which concept of consumer to use as the benchmark. But it became clear that the EU was concerned with consumer protection as a field in itself. Even if the EU legislation did not explicitly mention the normative concept of consumer to use, a clear message was send to the Court: provide a higher and better consumer protection.
Therefore, when the CJEU had to interpret the Consumer Sales Directive96 and the Unfair
Contract Terms directive97, the case law took a different turn. Indeed, in most of those cases
the Court did not put the emphasis on the average consumer of Gut Springenheide anymore.98
The EU legislation has managed to influence, to some extent, the jurisprudence of the court. Below are a few illustrations of this influence.
95Waddington 2013 (supra note 16), p.782 referring to footnote 36. Why refer to Waddington, why not to your own text earlier in this thesis?
96Directive 1999/44/EC of the EP and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L171, 07/07/1999, p.0012-0016.
97Council Directive 93/13/EEC of 5th April 1993 on unfair terms in contracts, OJ L95, 21.4.1993, p29-34.
In Oceano Grupo,99 or the Pénzugyi Lizing case, where the Court had to interpret the Unfair
Contract Terms directive, it clearly stated that the system introduced by the Directive refers to the idea that “the consumer is in a weak position vis-à-vis the seller as regard both its bargaining power and his level of knowledge”. 100 Oceano Grupo is the perfect example of the
Court changing its interpretation to not always take into account the average consumer, but also a consumer who is in a weak position, and needs legal protection. 101 The Court has been
influenced by the legislation when rendering this judgment, as the Court might have ruled otherwise if the emphasis of the directive was not on the weak position of the consumer. Another example than the Oceano Grupo case is the Mostaza Claro judgment, where the Court also had to interpret the Unfair Contract Terms directive, and still mentioned the weak position of the consumer vis-à-vis the seller.102
When interpreting the Consumer Sales Directive, which does not mention either which concept of consumer should be protected by the law, the Court of Justice took a consumer protective approach when establishing the benchmark for protection. In Froukje Faber, the Court mentioned again “that the system of protection introduced by those directives is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge and that there is a real risk that the consumer, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect him.”103, therefore setting the standard at a weaker consumer. In
Heininger,104 a case dealing with the right of withdrawal within the Consumer Sales Directive,
the Court took a very consumer protective approach, by extending indefinitely this right if the seller had not mentioned it at the moment of the sale. However in this latter judgment, even if
99Case C-240/98, of 27 June 2000, Océano Grupo Editorial SA v Roció Murciano Quintero, ECLI:EU:C:2000:346.
100Ibid, para 25.
101H-W Micklitz, Bamberg, “The Necessity of a New Concept for the development of the consumer law in the EU”, 2003, German Law Journal, Vol.04(10), pp.1043-1064, p.1050.
102 Case C-168/05, 26 October 2006, Elisa María Mostaza Claro v Centro Móvil Milenium SL, ECLI:EU:C:2006:675, para 25.
103 Case C-497/13, 4 June 2015, Froukje Faber v Autobedrijf Hazet Ochten BV, ECLI:EU:C:2015:357, para42.
104Case C-481/99, of 13 December 2001, Georg Heininger and Helga Heininger v Bayerische Hypo – und
