Towards the “real” consumer. An experimental analysis comparing the average consumer benchmark with behavioral findings stemming from ECJ Case Law

Abstract

Consumer protection laws against unfair commercial practices are based on a judicial assessment of the likelihood that a commercial strategy impacts individual’s conduct. In particular, the misleading nature of a business practice is determined by considering its capacity to influence the behavior of the “average consumer,” defined as a “reasonably circumspect and well-informed individual”. Behavioral studies, however, demonstrate that this kind of consumer is rarely found in the real world: consumers are subject to cognitive limitations and heuristics that lead to choices with sub-optimal results. Nonetheless it is currently not clear if - and how - European authorities apply these findings when analyzing the unfairness of a commercial practice. In the absence of solid empiric research on the relation between the interpretation of the “average consumer” notion with behavioral findings, the purpose of this study is to verify – through factual analysis - whether the concept of the “average consumer” fails to capture how real consumers actually behave by systematically comparing the consumer behavior depicted in the case law of the European Court of Justice (ECJ) with actual consumer behavior in analogous situations. The results of the experiment show that the European Union’s approach to consumer protection against unfair commercial practices appears less misguided than what the literature suggests, and that the main decisions are consistent with the behavior of actual consumers. Nevertheless, in developing its opinions, the ECJ rarely mentions the role of behavioral findings in predicting consumers’ characteristics, nor does it engage in substantial analysis of the data coming from empirical studies. Instead, it provides rationalistic justifications for its holdings and infers disputable connections that are not empirically confirmed. The problem with this approach - even when the holding of the case is consistent with empirical data – is that the “rules of thumb” that the ECJ embraces are not sophisticated enough to address the modern strategies of behavioral advertising, and therefore leave room for the opportunistic exploitation of consumers on the basis of those elements that the courts might sometimes unconsciously perceive, but not yet understand and transpose into a new, more accurate, concept of the average consumer.