Information obligations and disinformation of consumers

The standardisation of contracts resultingthereof and the introduction of new sales techniques gave rise to new market failuressuch as increasing information asymmetry both quantitative

Ius Comparatum – Global Studies in Comparative Law

Gert Straetmans Editor

Information

Obligations and Disinformation

of Consumers

Ius Comparatum – Global Studies

in Comparative Law

Volume 33

Founding Series Editors

Jürgen Basedow, Max Planck Institute for Comparative and International PrivateLaw, Hamburg, Germany

George A Bermann, Columbia University, New York, USA

Series Editors

Katharina Boele-Woelki, Bucerius Law School, Hamburg, Germany

Diego P Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po),Paris, France

Editorial Board

Joost Blom, University of British Columbia, Vancouver, Canada

Vivian Curran, University of Pittsburgh, USA

Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy

Makane Mọse Mbengue, Université de Genève, Switzerland

Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, BrazilUlrich Sieber, Max Planck Institute for Foreign and International Criminal Law,Freiburg, Germany

Dan Wei, University of Macau, China

As globalization proceeds, the significance of the comparative approach in legalscholarship increases The IACL / AIDC with almost 800 members is the majoruniversal organization promoting comparative research in law and organizing con-gresses with hundreds of participants in all parts of the world The results of thosecongresses should be disseminated and be available for legal scholars in a singlebook series which would make both the Academy and its contribution to compar-ative law more visible The series aims to publish the scholarship emerging from thecongresses of IACL / AIDC, including: 1 of the General Congresses of ComparativeLaw, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington

2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume ofGeneral Reports edited by the local organizers of the Congress; (b) up to 30 volumes

of selected thematic reports dealing with the topics of the single sections of thecongress and containing the General Report as well as the National Reports of thatsection; these volumes would be edited by the General Reporters of the respectivesections; 2 the volumes containing selected contributions to the smaller (2-3 days)thematic congresses which take place between the International Congresses (Mexico2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general themesuch as“Codification” or “The Enforcement of Law” and will be edited by the localorganizers of the respective Congress All publications may contain contributions inEnglish and French, the official languages of the Academy

More information about this series athttp://www.springer.com/series/11943

Académie Internationale de Droit Comparé

International Academy of Comparative Law

Gert Straetmans

Editor

Information Obligations and Disinformation of Consumers

ISSN 2214-6881 ISSN 2214-689X (electronic)

Ius Comparatum– Global Studies in Comparative Law

ISBN 978-3-030-18053-9 ISBN 978-3-030-18054-6 (eBook)

https://doi.org/10.1007/978-3-030-18054-6

© Springer Nature Switzerland AG 2019

This work is subject to copyright All rights are reserved by the Publisher, whether the whole or part of the material is concerned, speci fically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed.

The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a speci fic statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.

The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made The publisher remains neutral with regard to jurisdictional claims in published maps and institutional af filiations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To combat market inefficiencies resulting from the information asymmetry thatexists between businesses and consumers, an increasing number of mandated infor-mation disclosures are imposed on businesses to give consumers the means toprotect their own interests by making autonomous, informed choices Prohibitingmisleading information and informing consumers with correct information lies at thecore of the so-called information paradigm which resulted in consumer informationmodels across the world.

In those models, consumers are often perceived as benefit-maximising creatures.Information requirements allow consumers to make decisions themselves, decisionswhich are supposedly better than anyone else can make for them According to theeconomic theories underlying those models, informed consumer decisions are effi-cient It follows that if consumers are given full information, they will consistentlymake decisions that maximise their welfare As a consequence, the disclosure ofcorrect information and information in general cannot have a negative impact on thepurchase decision of consumers Being rational creatures consumers are supposed toignore information that is ineffective or irrelevant

Pre-contractual information duties and labelling requirements for foodstuffsrange among the earliest information obligations that have been adopted in view

of protecting consumers Together with the prohibition of misleading commercialpractices and transparency requirements for contract terms, these measures seekrespectively to prevent and to combat the deception of consumers

The last decade models based on mandatory disclosures increasingly became thesubject of criticism not in the least by behavioural economists More particularly, thecontinuous accumulation of information requirements begs the question whether the

‘inundation’ of information does not risk to disinform the consumer rather thaninform Furthermore, the benchmark of the rational consumer which serves as thebasis for the design of protective measures is increasingly criticised Also, newcommunication technologies pose new threats to consumers and might cause newforms of information asymmetries

v

This book focuses on these recent developments in consumer law and specificallyaddresses mandatory disclosures and the topical problem of information overload Itprovides an in-depth comparative analysis based on national reports from countrieswith common law and civil law traditions in Asia, America and Europe More inparticular, it bundles contributions originating in founding countries of the EuropeanUnion (France, Germany and Italy), in member states that at a later stage acceded tothe European Union (Finland, Greece, Ireland, Poland, Romania and the CzechRepublic), in the United Kingdom that initiated the process to leave the EuropeanUnion, in countries of the Asian continent (China, Japan, Singapore and Taiwan) andfurthermore in Brazil, Canada (Québec province) and Turkey which echo viewsfrom respectively the North- and South-American and the Euro-Asian region Thebook further benefits from the Belgian experience with consumer information rules.The national reports follow the structure of the questionnaire which is annexed inEnglish and in French to this book It allows readers in a user-friendly manner tocompare the subparts of the chapters of their preference Also, the general report inthis book applies the same order of treatment as the questionnaire It offers compar-ative insights based on the national reports in the most relevant developments ofconsumer information law.

The main themes dealt with in the book are the following At first the maincharacteristics of the current consumer protection models and the basic assumptionsunderlying those models such as the information paradigm and the average con-sumer benchmark are examined

The analysed legal systems start traditionally from the assumption thatcontracting parties are more or less in an equal bargaining position and enjoy thefreedom of contract As is well known, new market circumstances (mass products,standardised contracts) made increasingly clear that market failures occurred andconsumers could no longer be considered in an equal position with traders Hence,consumer protection rules responded in the first place to failures in the marketeconomy like increasing information asymmetries and provided for corrections torestore real equality between traders and consumers Besides increased informationrequirements in line with the economic pace of the market, the conviction graduallygrew that consumers must be considered weaker parties in some circumstances,deserving extended protection for instance in the context of distance selling,off-premises contracts and e-commerce The characterisation as a weaker partyjustified more intrusive consumer protection measures like withdrawal rights, rules

on delivery in conformity with the contract and consumer guarantees More recently,consumers are increasingly approached as the weaker party by definition, especiallywhen concluding standard or adhesion contracts As a consequence, the fairness ofcontract terms is enforced by a multitude of measures among which are the nullity ofunfair contract terms, the impact of pre-contractual information on the fairness of acontract term, the transparency of core contract terms and terms in general, the duty

to explain contract terms, etc

It follows that consumer models in markets that become more global can nolonger be reduced to pure corrections of the information asymmetry that occurs.Market fairness towards consumers is no longer necessarily linked to a demonstrated

inferior information or even bargaining position of the consumer, but increasinglyconnected with the assumption that the consumer is a weaker party as such given theeconomic environment in which he makes transactional decisions It is furtherexamined in this book how consumer models adapt to the new market circumstancesand whether consumer models tend anew towards consumerist approaches as expe-rienced in the 1970s or retain, albeit maybe with varying degrees of intensity, theiroverall economic orientation In the same vein, the analysis seeks to investigatewhether the consumer seen as a rational, benefit-maximising creature still holds asthe benchmark of consumer protection measures and whether the informationparadigm is there to last as foundation of consumer protection models.

In the second part of this book, the information obligations themselves are thesubject of analysis, starting with the general pre-contractual information rules andthe role of good faith in contracting A grand variety of rules exist as regardspre-contractual information with countries imposing a general pre-contractual infor-mation duty and countries where such a duty is absent The book highlights theexisting differences in this regard and focuses more particularly on countries with ageneral pre-contractual information duty Countries with such a duty almost alwaysalso impose transparency requirements It follows that pre-contractual informationmust be clear, intelligible and comprehensible These transparency requirementsincorporate in general two obligations Thefirst relates to the form and the presen-tation of the information which must be easy to read The second refers to the content

of the information and its comprehensibility Transparency measures often lackclarity due to the absence of further guidance by legislators The book studieswhether that is the case and if such a lack of clarity would occur, how courts copewith that shortcoming It is further analysed whether common rules on transparencycan be deduced from the existing national systems In this regard also the heavyregulatedfield of food labelling is briefly analysed in view of extracting overall rules

on the readability and intelligibility of information

With these analyses as background, the focus of the book in the third part shiftstowards the relationship of the transparency requirement in general informationobligations and the prohibition of misleading commercial practices on the onehand and the fairness of (standard) contract terms on the other hand

With regard to the misleading character and comprehensibility of the information,

a remarkable evolution takes place in the European Union Recent case law of theEuropean Court of Justice seems to suggest that an average consumer who isprovided with correct and comprehensive information in advertisements, neverthe-less, may have a mistaken perception of the offer due to the presentation of thatinformation taken as a whole The Court’s approach first took place in a case relating

to food labelling but was extended later to misleading commercial practices cases.Although the European Court of Justice does not as such renounce that the averageconsumer serves as a benchmark for the assessment of misleading practices inlabelling and in advertising, it clearly mitigates the consumer’s obligation to inter-nalise the information which is disclosed in the market for his benefit It follows thateven when the trader satisfies the information requirements imposed by the law, thatdoes not automatically rule out that the information may be presented in such a

manner that the average consumer remains misled, notwithstanding the correct andcomprehensive information he received Hence, the Court accepts that in somecircumstances correct and comprehensive information may no longer be capable

of correcting the consumer’s erroneous or misleading impressions based on otherinformational elements This will be especially so in the case of price informationprovided to consumers in TV advertising for rather complex products and in the case

of advertising for or information on the package of a daily product In thosecircumstances, the European Court of Justice seems to accept that the level ofattention of consumers may be lower and hence their capability to absorb thedisclosed information due to either the reduced time to internalise the information(e.g in the case of a TV ad) or the fact that the consumer (sometimes hastily) buys adaily product (e.g products from the range of basic consumables in supermarkets).With regard to contract terms, the European Court of Justice has given some verystrong guidance on what is required for terms to be plain and intelligible In doing so,the Court strengthened the bond between pre-contractual information on the onehand and the unfairness of contract terms on the other hand, which it considers asclosely intertwined In its recent case law, the European Court of Justice held that therequirement of transparency should not be restricted to mere formal and grammaticalintelligibility but should extend to the precise content of the terms According to theCourt, the consumer must be informed in such a manner that he is in a position toevaluate on the basis of clear, intelligible criteria the economic consequences for himwhich derive from a term More specifically, the consumer must be provided with allthe information likely to have a bearing on the extent of his commitment so that he isenabled to estimate in particular the total cost of his contract Furthermore, con-sumers must be expressly informed of their rights thatflow from mandatory nationallaw of which they are beneficiaries, even though they are deemed to know theirnational legislation Hereby the fundamental importance of pre-contractual informa-tion for consumers is emphasised since consumers decide on that basis to be bound

by a contract

The book specifically analyses these new developments in food labelling, mercial practices and unfair contract terms law and examines whether similar traits

com-of these developments can be found in non-European jurisdictions

The analysis in this book is further complemented with a fourth part whereinsector-specific information rules are analysed Two sectors were selected to that aim:thefinancial services sector and the e-commerce sector, the first because legislaturesincreasingly impose specific information obligations on businesses in the financialservices sector due to the often complex, sophisticated and highly technical nature ofthose services and the latter because new communication technologies pose newthreats to consumers in terms of information and consequently force legislatures toenact specific rules to protect the digital consumer Especially the fact that legislatorsare experimenting with different forms of summary disclosures in the financialservices sector retained attention Also, recent initiatives to make use of the newtechnological environment with the aim of presenting information in a more digest-ible way for consumers are highlighted in this part of the book It is more particularly

examined whether the tendency towards rationalisation of information in thisdomain also has led to simplification of the information.

The analysis in the preceding parts gives the reader the necessary background tounderstand that consumer protection models based on mandatory disclosures are notfree of criticism As was pointed out above, they increasingly became the subject ofcriticism the last decade, not least by behavioural economists Especially the exces-sively detailed rules on advertising and information are increasingly criticised ascounterproductive if they lead to constantly extended lists of information catalogues.This part of the book particularly focuses on the topical problem of informationoverload that results from the continuous accumulation of information requirements.Here, the question is raised whether this evolution risks to disinform rather thaninform the consumer? The book examines how countries with different legal back-grounds respond to this emerging problem More in particular, the focus of theanalysis is placed on the impact, if any, of those criticisms on the national consumerinformation policies in the reporting countries and whether legislatures react to thehighlighted critiques and drawbacks of the information models Also, the degree towhich countries address more particular problems relating to overload of informa-tion is discussed in this part of the book

The concluding andfinal part of the book provides a critical appraisal of therecent developments in consumer protection models based on information obliga-tions More in particular, the question is addressed whether the multiple criticisms onthe existing consumer information models necessitate the abandonment of thosemodels in favour of new forms of more adequate and thus better consumer protec-tion In this context also the multiple initiatives to educate consumers will be takeninto account

Finally, the book concludes with some suggestions on how consumer law could/should evolve in the future, based on the comparative analysis of the national reportsoriginating in different continents

6 February 2019

Part I General Report

Information Obligations and Disinformation of Consumers 3

Gert Straetmans

Part II National Reports: European Union

Information Obligations and Disinformation of Consumers: English

Gian Antonio Benacchio

Information Obligations and Disinformation of Consumers: Greek

Law Report 237

Antonios G Karampatzos and Charalampos A Kotios

L’information et la désinformation des consommateurs : Rapport

roumain 275

Raluca Bercea and Dan Adrian Cărămidariu

Information Obligations and Disinformation of Consumers: Polish

Law Report 301

Monika Namysłowska and Agnieszka Jabłonowska

xi

Information Obligations and Disinformation of Consumers: Czech

Law Report 339

Markéta Selucká, IvaŠťavíková Řezníčková, and Pavel Loutocký

Information Obligations and Disinformation of Consumers: Irish

Part III National Report: Euro-Asian Region

L’information et la désinformation des consommateurs : Rapport

turc 431

Başak Baysal

Part IV National Reports: Asia

L’information et la désinformation des consommateurs : Rapport

Part V National Reports: North and South America

Information Obligations and Disinformation of Consumers: Quebec

Law Report 485

Marie-Eve Arbour

Information Obligations and Disinformation of Consumers:

Brazilian Law Report 523

Milena Donato Oliva

IACL Questionnaire: Information/Disinformation Consumers

Including Negotiation 549Questionnaire AIDC: Information/désinformation des consommateurs,

y compris le pouvoir de négociation des consommateurs 555

Part I

General Report

and Disinformation of Consumers

Gert Straetmans

Abstract To combat market inefficiencies resulting from the information try that exists between businesses and consumers, an increasing number of mandatedinformation disclosures are imposed on businesses to give consumers the means toprotect their own interests by making autonomous, informed choices Prohibitingmisleading information and informing consumers with correct information lies at thecore of the so-called information paradigm which resulted in consumer informationmodels across the world

asymme-Pre-contractual information duties and labelling requirements for foodstuffs rangeamong the earliest information obligations that have been adopted in view of protectingconsumers Together with the prohibition of misleading commercial practices andtransparency requirements for contract terms these measures seek to respectivelyprevent and to combat the deception of consumers The different forms such measuresmay take are the subject of an in-depth comparative analysis in this general report.The last decade models based on mandatory disclosures increasingly became thesubject of criticism not in the least by behavioural economists More particularly thecontinuous accumulation of information requirements begs the question whether the

‘inundation’ of information does not risk to dis-inform the consumer rather thaninform Furthermore the benchmark of the rational consumer which serves as thebasis for the design of protective measures is increasingly criticised In this generalreport the impact, if any, of those criticisms on the national consumer informationpolicies in the reporting countries is examined

The text has been finalised in September 2018.

G Straetmans ( * )

Economic, Consumer and Commercial Practices Law, Research Group Business and Law, University of Antwerp, Antwerp, Belgium

Consumer Law Institute, University of Antwerp, Antwerp, Belgium

Consumer Law Institute, University of Ghent, Ghent, Belgium

Court of Appeal, Antwerp, Belgium

e-mail: gert.straetmans@uantwerpen.be

© Springer Nature Switzerland AG 2019

G Straetmans (ed.), Information Obligations and Disinformation of Consumers,

Ius Comparatum – Global Studies in Comparative Law 33,

https://doi.org/10.1007/978-3-030-18054-6_1

3

Finally new communication technologies pose new threats to consumers Thegeneral report examines whether those developments cause new forms of informa-tion asymmetries.

1 Introduction

Consumers deserve legal protection on account of their inferior position This is thewell-known rationale for adopting special rules for consumers To combat marketinefficiencies resulting from the information asymmetry that exists between businessesand consumers, an increasing number of mandated information disclosures areimposed on businesses to give consumers the means to protect their own interests

by making autonomous, informed choices Prohibiting misleading information andinforming consumers with correct information lies at the core of the so-called infor-mation paradigm which resulted in consumer information models across the world

In those models consumers are often perceived as benefit maximizing creatures.Information requirements allow consumers to make decisions themselves, decisionswhich are supposedly better than anyone else can make for them It follows that ifconsumers are given full information, they will consistently make decisions thatmaximise their welfare.1

Pre-contractual information duties and labelling requirements for foodstuffs arewell-known illustrations of such mandatory information obligations In a number oflegal systems they range among the earliest information obligations that have beenadopted in view of protecting consumers Together with the prohibition of mislead-ing commercial practices and transparency requirements for contract terms thesemeasures seek to respectively prevent and to combat the deception of consumers.The different forms such measures may take will be the subject of further analysis inthis general report

New communication technologies pose new threats to consumers andfinancialservices are traditionally seen as complex with their inherent technicalities Somespecific rules enacted to protect respectively the digital and the financial consumerwill therefore complement the analysis

The last decade models based on mandatory disclosures increasingly became thesubject of criticism not in the least by behavioural economists Without going intotoo much details behavioural economics scholars mark as major critiques on con-sumer information policies based on disclosures, the bounded rationality, planningfallacy, overconfidence and loss aversion of consumers,2the fact that consumers

1 According to economic theory informed consumer decisions are ef ficient If the information is ineffective or irrelevant, it will simply be ignored by consumers and businesses Economic theory thus presupposes that information in general cannot have a negative impact See also on this point Better Regulation Executive and National Consumer Council ( 2007 ), p 9.

2 See e.g “The total capacity that is available in the human mental architecture for the processing of input information is limited ” Mangold ( 2015 ), p 142 and see A Lang on LC4MP ‘Limited Capacity

often lack the time to read information,3the absence of rules on the presentation ofthe information, the length of the information and the comprehensibility of infor-mation for consumers in general and for vulnerable consumers in particular.4Moreparticularly the continuous accumulation of information requirements begs thequestion whether the ‘inundation’ of information does not risk to dis-inform theconsumer rather than inform In this general report the impact, if any, of thosecriticisms on the national consumer information policies in the reporting countrieswill be examined.

This general report builds on the valuable contributions and national experiences

of national reporters It bundles contributions originating in founding countries ofthe European Union (France, Germany and Italy), in member states that at a laterstage accessed to the European Union (Finland, Greece, Ireland, Poland, Romaniaand The Czech Republic), in the United Kingdom that initiated the process to leavethe European Union, in countries of the Asian continent (China, Japan, Singaporeand Taiwan), and in Brazil, Canada (Québec province) and Turkey which echoviews from respectively the North- and South-American and the Euro-Asian region.The general report further benefits from the Belgian experience with consumerinformation rules

Thanks to the expertise of the well-recognised national scholars contributing tothis book, the general report provides significant insights on different aspects ofconsumer law in different continents These insights will be highlighted hereafter inaccordance with the structure of the questionnaire which is annexed to this book

model of mediated motivated message processing ’ Lang ( 2000 ), pp 46 –70 and Lang ( 2009 ),

pp 193 –204 A central assumption in the LC4MP-model is that processing of information needs capacity and that the total amount of capacity is limited: if one process gets more capacity for operation, other processes being executed at the same time will get less See also Mangold ( 2017 ),

pp 75 –87: “the demands of different processes for a variable level of capacity are strongly related to the kind of processing (deep and rule-governed or super ficial or heuristic) Processes not receiving the capacity they would require for thorough operation will only attain super ficially computed results ” (p 79) Motivation (the information relates to the consumer’s interests, needs, goals or expected grati fications) turns out to be one of the dominant factors for the allocation of capacity (p 80) However, customers tend not to be consciously aware of their own needs Yet, to date, it has never been shown and according to Mangold could never be shown that unconscious priming

“allows the creation of new and previously non-existing needs or motivates subjects to make decisions that are contrary to their general intentions ” (p 87) Compare with Kahneman ( 2011 ),

p 477, who refers to the “planning fallacy” as one of the manifestations of our pervasive optimistic bias Planning fallacy is our tendency to overestimate bene fits and underestimate costs, and hence foolishly to take on risky projects.

3 See e.g Bakos et al ( 2014 ), p 1 See recently Wagner ( 2017 ), p 1027.

4 The lack of transparency is an important factor that impedes consumers to read disclosed information and contract terms, but also a considerable number of cognitive and social factors as well as rational and economic factors play a crucial role in here; see to that extent respectively Stark and Choplin ( 2009 ), p 659 and also Barnes ( 2007 ), pp 228 –272 and Becher and Unger-Aviram ( 2010 ), pp 199 –210.

2 General Characteristics of the Consumer Information

Model

2.1 Economic Orientation of Consumer Models

Consumer protection in all legal systems is a modern, twentieth century, enon In the analysed legal systems contract law starts from the assumption thatcontracting parties are more-or-less in an equal bargaining position and enjoy thefreedom of contract.5

phenom-Freedom of contract pairs well with a free market economy based on liberalparadigms and fair competition The thriving market economy based on fair com-petition also brought mass production The standardisation of contracts resultingthereof and the introduction of new sales techniques gave rise to new market failuressuch as increasing information asymmetry (both quantitative and qualitative)between a trader and a consumer and marketing techniques that impact the con-sumer’s decision making process.6These new market circumstances made increas-ingly clear that consumers could no longer be considered in an equal bargainingposition with traders, especially in the presence of pre-formulated contracts.These findings triggered the development of consumer protection rules, as aresponse to failures that occurred in the market economy.7 These rules mainlyconsist of information requirements as they are the least intrusive to the economyand capable of restoring the balance between traders and consumers.8But, subse-quently, also more intrusive rules like the prohibition of unfair contract terms,cooling off periods and withdrawal rights were introduced

It follows that in the European countries consumers nowadays are almost matically perceived as weaker parties in terms of legal and economic bargainingpowers Their need for protection is based on the perception that commercial actors

auto-5 Courts in common law systems are, more than in civil law systems, reluctant to intervene in the terms of the contract, nor even generally to de fine forms of “weakness” of one party, or “inequality” between the parties, that deserve their protection For instance, in the United Kingdom Lord Denning ’s plea in 1985 to devise a common law principle of ‘inequality of bargaining power’ was rejected See more on this issue in the contribution of Cartwright to this book.

6 The emergence of industrial giants and correlative depersonalisation of relations between traders and consumers also contributed to these market failures.

7 Markets becoming more open almost automatically result in increased attention for the (weaker) position of consumers; see extensively on this subject, Straetmans ( 1998 ), p 242 e.s.

8 See e.g Baldwin et al ( 2011 ), pp 118 –119 and Ramsay ( 2007 ), pp 61 –71 and 119 e.s By impairing the consumer ’s ability to make choices which are informed, unfair commercial practices generate a market failure.

possess a greater negotiating power due to their economic and informational upperhand.9However, the economic orientation of European consumer law makes it abalancing exercise between conflicting aims, namely providing the necessary pro-tection of the weaker contract party and ensuring the proper functioning of the(internal) market.10

A similar economic orientation, albeit with different degrees of intensity, pins consumer protection rules in the non-European countries analysed in this report.For example consumer law in Brazil aims at protecting the‘homo economicus’ and

under-in Sunder-ingapore, which has to date less elaborated consumer protection rules than under-in theEuropean Union, the consumer is also placed in the larger context of a free marketeconomy where regulation is light-touched, and a belief in the invisible hand isprevalent.11

The economic orientation is also present in Turkish consumer law where the rulesare gradually being adapted to bring them in line with European law as part of theaccession process Also Québec’s private law copied French contract law so that theconsumer protection rules equally rely on the rationality paradigm in the free marketwith its inherent economic orientation to which it provides a correction to ensure realequality between traders and consumers.12

9 See also the contribution of Hyvönen and Schinkels in this book Schinkels further submits that the informable consumer more easily fits as an explanation for market-complementing information than

as an explanation for market correction Also Rott expressly differentiates between informed and informable consumers, whereby the latter are seen as a benchmark for consumer contract law (see in that sense Rott 2015 , p 164).

10 In this regard, Piazzon distinguishes subjective consumer law (weaker party protection) and objective consumer law (proper functioning of the internal market); see his contribution to this book.

11 Based on the responses to the questionnaire from professor G Low, Singapore Management University, garylow@smu.edu.sg : “The emphasis in Singapore has been on encouraging compet- itive processes and raising consumer awareness as active competition policy is seen as a more

ef ficient way to deliver benefits to end-user consumers [and] business consumers” With regard to Japan, Nakata ( 2016 ), pp 481 –482, points out that consumer law reforms in 2004 aimed at converting the existing law from a consumer that needs protection towards a consumer who is self- reliant, namely “an independent subject, acting so as to ensure its interests” (p 482) The law reform entailed the creation of an environment tailored to a self-reliant consumer with ex post regulation based on market rules instead of ex ante controls and the promotion of information disclosure Also these elements re flect an economic orientation of consumer law with the emphasis on deregulation and self-responsibility as marketplace principles Also the Japanese Consumer Contract Act of 2001

re flects this idea: “The purpose of this Act is to ensure self-determination of consumers, and to provide an environment which will support it ”, o.c., 487.

12 See the contribution of Arbour to this book.

2.2 The Consumer Concept

2.2.1 A Codified General Definition of Consumer, But No Unified

Definition

In most of the reported countries the consumer is a creature of statute Thoughnormal in civil law systems, it is much more peculiar in case based, common lawsystems.13

In the European member states national legislative texts mainly literally transposethe definition of consumer stemming from European instruments In those instru-ments the consumer is generally defined as “any natural person who is acting forpurposes which are outside his trade, business, craft or profession”.14

This definitionrepresents the common core which is equal to all reported countries That way, it can

be seen as a factor of convergence, but differences in interpretation remain to exist.For instance in all the member states of the European Union a variety of functionalconsumer definitions15are used in function of the precise underlying aims of thelegislation,16 not in the least because the European legislature itself within itslegislative enactments did not advance a single definition of consumer.17 Thenational reports of the non-European countries in this book present a similarfinding

It may thus be concluded that despite the existence of a generally acceptedcommon core definition of consumer, there is no unified definition of consumerthat is to be used within the consumer protection legislation generally Hereafter wewill point to some differences in scope

Mainly Natural Persons Protected, Sometimes Also Legal Persons or Even

14 See e.g Article 2 (b) Unfair Commercial Practices Directive 2005/29/EC, O.J 2005, L 149/22.

15 In the UK for instance the parliament has de fined the circumstances in which consumers should receive protection Courts will read these statutes by reference to the normal, objective meaning of their words, and will not look behind the text to find the “intended” meaning from the travaux préparatoires to give an interpretation beyond the text itself or to provide a conceptual unity amongst discrete legislative provisions See the contribution of Cartwright to this book.

16 The personal scope of legislation is often adapted to its particular purposes.

17 The European Commission recognizes that Member States ’ approaches are different and fragmented, but also found that there is no consensus on the stakeholders on how to reduce legal uncertainty generated by the fragmentation (see Report of the Fitness Check of EU Consumer and Marketing Law 2017 , p 109).

though in most of the reported countries consumer law is limited to natural persons,member states within the European Union as well as states outside the EU haveexperimented with broader definitions.18

Some states straightforwardly apply a broader definition For instance Greekconsumer law extends the protective scope to legal persons and a union of persons

A consumer may be“any natural or legal person or union of persons without legalpersonality, for whom the goods or services offered in the market are intended andwho make use of those products or services, as long as they are thefinal receivers ofsuch goods or services”.19

In the same vein the Brazilian Consumer Protection Code defines the consumer asany individual or legal entity that acquires or uses a product or service as afinaluser.20 To be characterized as a consumer, the individual or legal entity does notneed to have a contractual bond with a supplier, since the provision expressly refers

in general to acquirer or user Furthermore, the Consumer Protection Code, despitethe reference tofinal users, also applies specific consumer rights to ‘consumers bycomparison’ in an attempt to ensure equal treatment to every person who is in asimilar vulnerable position, irrespective of whether he is afinal recipient.21Some countries provide for an extension of the definition in certain subdomains

of consumer law For instance Finland provides smaller businesses in certain areasconsumer-like protection.22Thus the domain of unfair contract terms benefits fromsuch extension if the business contracts involved are concluded by consumer-likesmall businesses and policy holders equal to consumers.23

Also French law has a longstanding tradition in protecting‘non-professionals’ Itfollows that professionals could benefit as non-professionals from the protective

18 The UK for instance evolved from a broader to a narrower conception of consumer in the field of unfair contract terms where ‘consumer’ protection was initially extended to corporations as long as the transaction in question was neither an integral part of their business, nor conducted with a suf ficient degree of regularity to make it part of the business Also, Poland briefly experienced with

an extension of the notion to ‘persons’ but it was quickly abandoned as it was believed that the inclusion of non-governmental organisations and micro-, small- and medium-sized undertakings would negatively affect the national traders in the internal market See respectively the contribution

of Cartwright and Namysloswka and Jablonowska to this book.

19 See the contribution of Karamptzos and Kotios to this book.

20 See Head of Article 2 of the Consumer Protection Code.

21 Read more on this scholarly debate in the contribution of Donato Oliva to this book, who submits that vis-à-vis a legal entity the liability of a supplier may be limited.

22 A concrete example is the protection provided by the Insurance Contracts Act which not only protects the consumer but also a legal person who in terms of the nature and scope of its business can be compared to a consumer vis-à-vis the insurer See more in the contribution of Hyvönen to this book.

23 However, it must be pointed out that the unfairness of a term is evaluated differently in the case of

a consumer or a small business “Consumer protection is much broader and includes the protection provided for in the national Consumer Protection Act (Sections 1 –2 of Chapter 4) or the EU directives on consumer protection In the case of a small business, unfairness is evaluated on the basis of general contract law (Section 36 of the Contracts Act) ”, see the contribution of Hyvönen to this book.

rules in the domain of unfair contract terms when theyfind themselves in a positionequal to consumers, for instance if they lack any competence in the subject matter ofthe contract.24It comes as no surprise that this gave rise to divergent interpretations

in case law.25 In 2016 the French legislator (tried to) cut the discussion shortintroducing a new definition whereby any legal person that acts for purposes that

do not enter within the framework of his commercial, industrial, artisanal, liberal oragricultural activity must be regarded as a‘non-professional’ Likewise with regard

to unfair contract terms the French case law excludes natural or legal persons(non-professionals) who conclude contracts that present a direct link (interpretedbroadly) with their professional activity from the protective scope

Acting for Private, Mixed or Business Purposes

The second part of the common core definition refers to non-professional purposes.Also this part has been the subject of debate in Europe and beyond where numerousvariations exist on how‘acting for non-business, non-professional purposes’ must beunderstood

In Japanese law the consumer is defined as a natural person who does not exercise

a function within a business, whereas the professional is defined as an individualwho contracts for business purposes.26 Also Chinese law makes the purpose ofpurchase, namely to meet consumption needs in daily life, the key factor to distin-guish between a consumer and a business operator, but the definition is criticisedbecause also legal persons may have consumption needs for their daily operations.Hence legal persons would qualify as consumers whereas it is believed that legalpersons are not as weak as natural persons in market transactions Chinese legaldoctrine therefore advised to exclude legal persons from consumer protection and toamend the definition so as to focus on the non-professional, non-profit and depen-dent on business operators characteristics of consumers In 2013 legal persons wereexcluded by law from consumer protection measures but so called professional fakecommodities buyers were not.27

24 For instance, trade unions may bene fit as non-professionals from protective rules provided that the subject matter of the contracts they conclude does not present a direct link with their professional activity See the contribution of Piazzon to this book.

25 Thus, commercial companies were generally excluded from the protection whereas case law was divergent with regard to the classi fication as consumers of civil companies.

26 See the contribution of Nozawa to this book Compare with Nakata ( 2016 ), p 489, who adds that

“there are situations in which consumers might appear as ‘business operators’ due to special characteristics of the transaction, or business operators are put in similar positions of those consumers ” (p 489).

27 Professional fake commodities buyers are persons who deliberately and repeatedly buy dard commodities with the intention to obtain punitive damages since those commodities do not correspond to the national safety and quality standards Chinese Courts tend to be receptive towards such claims initiated by fake commodities buyers Yet recent statements in 2017 from the Supreme People ’s Court will restrict the professional fake buyer’s exploitation so that more disqualifications

The Québec Consumer Protection Act defines a consumer as a natural person

“except a merchant who obtains goods or services for the purposes of his business”,without however defining the notion of merchant.28 Romanian law provides foranother variation on the same theme Here, the consumer is generally defined as anynatural person or group of natural persons in an association who acts for purposesthat exceed his commercial, industrial, producing, artisanal or liberal activity Yet,with regard to unfair contract terms the definition is slightly different since it refers to

a natural person or group of natural persons who act for purposes that do not enterwithin the framework of their professional activity The latter definition can also befound in France29and in slightly different wording in Italy.30

The broad wording does not exclude dual purpose (private and business) tracts from consumer protection How far a dual purpose contract might be mixed so

con-as not to forfeit the categorization of consumer contract, is debated in Europe In theConsumer Rights Directive, recital 17 states broadly that“in the case of dual purposecontracts, where the contract is concluded for purposes partly within and partlyoutside the person’s trade and the trade purpose is so limited as not to be predom-inant in the overall context of the contract, that person should also be considered as aconsumer”.31Yet, in the Gruber- case32the European Court of Justice gave a morerestrictive reading of the consumer concept holding that the notion of consumercontract must be confined to contracts wherein the element of business use isnegligible As a result, the UK legislator defined the consumer as an individualacting for purposes that are wholly or mainly outside that individual’s trade, busi-ness, craft or profession The UK legislator preferred‘wholly or mainly’ to extendthe definition beyond the interpretation of the Court of Justice of the European Union(hereafter: CJEU) in Gruber Also the Polish Civil Code allows courts a certainmargin of discretion It defines the consumer as a natural person who performs alegal act33with a trader for purposes not directly related to his or her business orprofessional activity It follows that courts can bring dual purpose contracts into theprotective scope in accordance with the broader interpretation in the Consumer

as consumers may be expected in case law See more extensive on this point, the contribution of Yang to this book.

28 Court practice shows that a natural person who sells his services or products obtained from professional activities in an organised fashion, is no longer a consumer See the contribution of Arbour to this book.

29 Consumer is a natural person who acts for purposes that do not enter the framework of his commercial, industrial, artisanal, liberal or agricultural activity See already supra.

30 In Italy the consumer is de fined as any person who buys products or services from a business to satisfy his proper needs, those of his family and partially also his professional needs, provided that

he acts for purposes that do not enter the framework of his commercial, industrial, artisanal, liberal

or professional activity See the contribution of Benacchio to this book.

31 Directive 2011/83/EU of 25 October 2011 on consumer rights, OJ 2011, L 304/64.

32 CJEU 20 January2005, Johann Gruber v Bay Wa, case C-464/01, ECLI:EU:C:2005:32.

33 The reference to legal act does not severely limit the scope of the de finition, see more in the contribution of Namyslowska and Jablonowska to this book.

Rights Directive Also the Belgian wording of the definition allows for suchstretched reading as applied by some courts with respect to consumer sales contracts.

Irrespective of the Consumer’s Level of Knowledge

In most of the reported countries the actual level of (technical) knowledge of theconsumer, his bargaining power, his concrete legal skills or observant orfinancialcapacities are irrelevant for the application of abovementioned definition of con-sumer A natural person who is acting for purposes outside his business or profession

is considered automatically to be the weaker person vis-à-vis a trader, seller ormerchant

This is however not the case in countries where a broad consumer definition isapplied referring to persons acting asfinal users Thus the Brazilian Superior Court

of Justice extends the protective scope on the basis of a so-called ‘deepenedfinalism’ This interpretative method allows the application of the Consumer Pro-tection Code in all cases were the vulnerability is established, even if from thefinalistperspective thefinal destination is not known and the person concerned is no finaluser According to the Brazilian Superior Court of Justice this vulnerability can havemultiple origins: it can be of a“technical (lack of specific knowledge regarding theproduct or service being consumed), legal (lack of legal, accounting or economicknowledge and its reflections in the consumer relation) or even factual (situations inwhich the economic, physical or even psychological insufficiency of the consumerputs him in a disadvantageous position vis-à-vis the supplier) nature”.34

Morerecently, the vulnerability with regard to information (insufficient data about theproduct or service that is able to influence the buying decision-making process) hasalso been included.35

It has already been mentioned above that also the Greek definition of consumerrefers to the broad notion offinal user The definition includes legal persons and doesnot limit the scope to persons acting for purposes outside their business, trade orprofessional activity It follows that natural or legal persons are worthy of the law’sprotection even when they obtain goods or services for professional use, as long asthey can demonstrate that they acted asfinal recipients The more narrow commoncore definition of consumer highlighted above, is in Greece only applied in caseswhere European law imposes to do so

A similar vulnerability-approach creeps in in Singapore’s consumer law, whenthe evaluation of relative bargaining positions regarding the reasonableness ofotherwise onerous terms is at stake or with regard to the statutory requirementobliging businesses to take care not to take undue advantage of the peculiarities of

34 See Brazilian Superior Court of Justice, REsp 1195642/RJ, 3aT., Rel Min Nancy Andrighi, julg 13.11.2012.

35 See the contribution of Donato Oliva to this book.

their customers,36and in Taiwan where the consumer is automatically approached asthe weaker party, disadvantaged in terms of experience and knowledge vis-à-vis atrader.

2.2.2 The‘Average Consumer’ Is the Benchmark for Information

Duties, Unfair Commercial Practices and Unfair Terms

The common core definition of consumer referred to above serves as the generalbenchmark to identify the beneficiaries of protective measures Within the EuropeanUnion the maximum harmonisation of the Directive on unfair commercial prac-tices37together with the case law of the Court of Justice of the EU had the effect ofadvancing the so-called‘average consumer’ as the more concrete general benchmarkfor the assessment of the adequacy of information disclosures and the unfairness ofcommercial practices This European standard of an‘average consumer’ is a personwho is reasonably well informed, reasonably observant and circumspect, taking intoaccount social, cultural and linguistic factors.38It is an somewhat idealized image ofhow consumers behave or should behave.39

The idea of an average or typical consumer has been used by most of theEuropean member states’ courts as a benchmark even in cases where it is notspecifically referred to in legislation It follows that the ‘average consumer’ is alsoused by national courts in the member states of the EU as the general benchmark toassess the unfair character of contract terms In Ireland for instance the averageconsumer is referred to as a benchmark in relation to the transparency requirementfor unfair terms or in cases of passing off Also in Greece contracts must be drafted insuch a manner that the average person reading the terms is able to fully understandtheir meaning.40The same applies in Poland were the average consumer gains fullweight, despite the fact that consumers prior to accession to the EU were perceived

36 Based on the responses to the questionnaire from professor G Low, Singapore Management University, garylow@smu.edu.sg , who submits: “Although these requirements are aimed at ameliorating the probability of pressure sales, they also and necessarily go towards what informa- tion is shared with the consumer and how it is shared The same may also be said regarding disclosure in financial products or services contracts, where although there is a mandatory minimum disclosure, the manner and extent of disclosure of information beyond that hinges on the assessment

of the savviness of the consumer As with much in the common law, everything turns on its facts ”.

37 Directive 2005/29/EC, cited above.

38 See the national reports of The Czech Republic, France, Germany, Greece, Ireland, Italy, Poland, Romania, The United Kingdom This is also the case in Belgium Also Finnish consumer law applies this average consumer benchmark, but concentrates on top of that also on individual measures after a con flict has arisen with a consumer; see the contribution of Hyvönen to this book.

39 It follows that the expected behaviour of the consumer is to be determined in abstracto See more extensively on this point, Duivenvoorde ( 2014 ), pp 63 –75, more specifically on pp 64 and 73.

40 In Greece courts tend to rely on a relatively well informed but inexperienced consumer who is not speci fically careful, suspicious or observant, but who at the same time is not a gullible, completely indifferent or careless person The average consumer is not expected to have legal expertise in

as forgetful and not careful at all The benchmark of an‘average consumer’ applies

in Poland in areas such as unfair competition, trademark law, unfair terms control,pre-contractual information and even general tort law.41There is no reason to believethat the CJEU would deviate from the general standard of the average consumerwhen it comes to the assessment of contract terms.42

Yet, this increasing adherence to the European standard of an average consumerdoes not rule out the national traditions in which the consumer concept is embed-ded.43These traditional consumer standards continue to play an important role in theassessment of law provisions

The most prominent example in that regard is Finland where psychologicallyinspired assessments by the Market Court remodel the average consumer, stating forinstance that the value of the giveaway should not be used to distract a consumerfrom the price of the main product and that reporting prices to consumers in aninconsistent way may be considered to be inappropriate or otherwise unfair conduct

in marketing consumer goods.44It brings Finnish scholars to the conclusion that thegeneral benchmark for the Finnish national consumer legislation remains theweaker, less rational consumer.45

contract drafting but is supposed to read the contract terms which should allow him to understand his rights and duties See the contribution of Karampatzos and Kotios to this book.

41 See the contribution of Namyslowska and Jablonowska to this book.

42 This is all the more so since the Directive on Unfair Contract Terms states that “the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent ”(own emphasis), see Article 4(1), Directive 93/13/EEC, O.J 1993, L 95/29 The overall assessment implies that also pre-contractual information and advertisements must be taken into account and their possible impact on the contract terms Also the misleading character of those commercial practices may play a role in this assessment It would then be odd if the average consumer used for the assessment of the misleading character of those practices would be different from the benchmark used for the unfair character of the term Also the fact that several European law instruments impose to inform the consumer prior to the conclusion of the contract about at least some of the general conditions and clauses of the contract, strengthens this analysis The most extensive obligation is imposed on service providers by Article 22 (1f) and 1g)) of Directive 2006/123/EC on services in the internal market, O.J 2006, L 376/36.

43 The European Commission concludes in its Fitness Check Report that Member States rather apply the average consumer implicitly than explicitly (see Report of the Fitness Check of EU Consumer and Marketing Law 2017 , p 109).

44 See the contribution of Hyvönen to this book In Finland contractual liability is at stake when the content of a contract does not correspond to what the consumer expected The consumer expectation test with regard to informational defects is based on the general level of expectations and not the consumer ’s personal level of expectations, but the price of the contract is taken into account when evaluating the defect (see Finnish Supreme Court Decision 1992:86).

45 In this regard Hyvönen notes that “the Finnish (and the Nordic) average consumer is not similar to the EU consumer image Nonetheless, when the UCPD is applicable, the EU benchmark is as well Duty to disclose information has not played a similar role in Nordic consumer law as it has in EU consumer law Consumer protection after the conclusion of a consumer contract, e.g by adjusting

an individual term, has been regarded as being equally as important as a company ’s duty to disclose

Also Irish courts struggle with the application of the average consumer, especially

in advertising cases.“In the Aldi decision, the Court of Appeal avoided an overlypaternalistic approach to the average consumer, stating that“[t]he notional consumerhas common sense” and that “shoppers have to be given some credit for intelligenceand appreciation of common marketing practice”.46In this case“Aldi objected to acomparative advertising campaign by the Dunnes chain of supermarkets, in whichshelf-edge labels compared the Dunnes prices and Aldi prices for 262 separateproducts Aldi claimed this was misleading, particularly in relation to certain prod-ucts since Dunnes compared the price of their own brand tomato ketchup with Aldi’seven though Aldi’s ketchup has more tomato content, and compared its own-brandproducts when the Aldi products carried quality assurance marks”.47

The Court ofAppeal pointed out that“misleading should not be lightly found and that in this casethe intention was comparison, not deceit”.48It further concluded that the averageconsumer was well capable of understanding price comparisons of that type andwould not be misled either by general slogans such as‘lower price guarantee’ and

‘always better value’.49 However, in the McCambridge case50the Supreme Courtseems to depart from the stricter European standard in favour of perhaps a morerealistic view of a consumer.51Although Kelly reports that there was some evidencethat if the consumer actually looked at the packaging and“get up” of the defendant’ssoda bread they would not confuse it with that of the plaintiff, the Court held that onebakery passed off its soda bread as that of the rivalry bakery for there was potentialfor confusion if consumers put it into their shopping trolley without properly looking

at it The Supreme Court further emphasised “the phenomenon of fast movingconsumer goods displayed on the supermarket shelf”,52

and stated that “even

information prior to the purchase Concentrating solely on duty to disclose has been seen as protecting the more well-off, educated consumer, and less other weaker consumer groups ”, see the contribution of Hyvönen to this book.

46 Aldi Stores (Ireland) Limited and Aldi GMBH & Co KG v Dunnes Stores [2017] IECA 116, at paras 104 and 105.

47 See the contribution of Kelly to this book.

48 At this point Kelly rightly points out that the UCPD prohibits misleading commercial practices irrespective of the trader ’s intentions to or not to mislead Misleading conduct is a strict liability offence.

49 Kelly highlights in her contribution the Court ’s reasoning: “It seems to me that no sensible person could be misled by the use of general slogans that are the commonplace stuff of most advertising I think that shoppers have to be given some credit for intelligence and appreciation of common marketing practices A lawyer ’s exegesis of the words used is wholly inappropriate and it would correctly be brushed aside as unworldly and unrealistic by any average shopper In my view, the proposition accepted and adopted by the trial judge in this regard is, with respect, unrealistic and inconsistent with the attitude to be ascribed to a reasonably well-informed and circumspect shopper ”.

50 McCambridge Ltd v Joseph Brennan Bakeries [2013] 1 ILRM 369.

51 See the contribution of Kelly to this book It must be submitted that the case concerned a common law action for passing off.

52 [2013] 1 ILRM 369, at para.43.

ordinary reasonable prudent consumers do not, in fact, frequently carry out a detailedexamination of the product at the time when they take the bread from the supermar-ket shelf and place it in the supermarket trolley”.53

Polish courts experienced similar difficulties in advertising cases and developed aformal two-step test First, the targeted audience is determined on the basis of thecharacteristics of the advertised product or service and, second, the medium which isused for the advertisement is taken into account Assessments by courts are made inthat particular order and may sometimes, in contrast with the Irish evolution, lead to

a lower level of protection In a 2014 judgment concerning the on-line sales of tickets

to UEFA EURO 2012 football games, the Polish Supreme Court held that a termincluded in the standard conditions of business, according to which, in case of adiscrepancy between English and Polish language versions of the conditions, theEnglish version should prevail, was not unlawful since they were addressed at agroup of consumers who were more technology-savvy, active, well-informed, cau-tious, attentive and familiar with standard terms drafted in English.54

In Romania information is assessed in the light of the European average sumer but at the same time the personnel circumstances of the concerned consumerare taken into account As a result, court practice in Romania demonstrates avigorous application of the transparency standards in view of an increased level ofconsumer protection.55In the same vein, information provided by the trader will not

con-be taken into account in the Czech Republic when that information is communicated

to consumers contrary to the requirements of comprehensibility or clarity.56The Greek legislator adopts in function of the protective scope pursued in specifictransactions a broader, ad hoc definition of consumer The targeted audience,especially the non-professional character of the final recipient involved in thetransaction triggers this ad hoc specification As a result consumer protection rulesmay also apply when the person is not familiar with the specific transaction,irrespective of whether he acquired the products or services for professional orpersonal use.57The lack of specific knowledge, experience and bargaining powervis-à-vis the supplier in transactions that persons do not frequently engage in,justifies the application of and the need for protective rules Conversely, when aspecialist group is targeted, for instance medical surgeons, the benchmark will be theaverage surgeon instead of the average medical doctor

The historical benchmark of the flüchtigen und unkritischenDurchschnittsverbraucher (the casually observing and uncritical average consumer)

in Germany which under impulse of the CJEU has been replaced by the averageconsumer in the Orient Teppichmuster-case58 caused the Bundesgerichtshof to

53 Ibid For more, see the contribution of Kelly to this book.

54 See the contribution of Namyslowska and Jablonowska to his book.

55 See more extensively on this point, the contribution of Bercea and Caramidariu to this book.

56 See the contribution of Selucka, Staviková Reznicková and Loutocký to this book.

57 See already supra.

58 BGH 20 October 1999, I ZR 167/97, WRP 2000, 517 – Orient-Teppichmuster.

conclude that the level of attention of the consumer primarily depends on therelevance or value of the products or services If the advertising concernslow-value every-day products the consumer’s level of attention will be lower thanhis level of attention if the advertising concerns a specific offer of a product orservice of considerable value.59Despite the fact that the average consumer in somecircumstances will be characterised as casually observing advertising, the BGHemphasised that,“although the consumer is not always assumed to be particularlyattentive the interest of the consumer who is less attentive than the average consumer

is not protected”.60

Within Europe, the UK takes a particular place The average consumer hasbecome the benchmark only for the law of unfair commercial practices, but tradi-tionally courts took “a robust approach demanding consumers take a realisticinterpretation to advertising even before the UCPD was adopted”.61The UK Con-sumer Rights Act 2015 uses the average consumer for one additional particular pointconcerning unfair terms control, namely to determine whether a term specifying themain subject matter of the contract, or assessment of the price,62 is sufficientlyprominent to be excluded from the Act’s assessment of fairness.63

Also Turkey has its characteristic features In view of its accession to theEuropean Union Turkish legislation has gradually evolved from protecting nạveconsumers to the protection of average consumers who are increasingly aware ofthings But, despite legislation with a stricter account of eligible persons for con-sumer protection Turkish courts continue to perceive the consumer as a nạve,irrational person who could be manipulated easily by marketing techniques.Although a certain legislative lip service towards the European standard of theaverage consumer can be detected, Turkish courts remain firmly rooted in thepre-existent image of the‘very weak’ consumer

As for the analysed countries outside the EU, Brazil, Taiwan and Singapore seem

to adhere to a more concrete analysis in function of the protective needs andexpectations of the consumer concerned For instance Brazilian law allows thatinformation defects may simultaneously amount to product defects ornon-conformity of the product in cases where legitimate consumer expectations

59 In this sense BGH 18 October 2001, I ZR 193/99, GRUR 2002, 550 —Elternbriefe, BGH

26 September 2002, I ZR 89/00, WRP 2003, 275 —Thermal Bad and BGH 2 October 2003, I ZR 252/01, GRUR 2004, 162 —Mindestverzinsung.

60 See also on this point, Duivenvoorde ( 2014 ), pp 88 –94 who adds that according to the BGH the same holds true if the consumer glances through advertising lea flets or advertising in newspapers (p 90).

61 See the contribution of Cartwright to this book Compare with the analysis of cases prior to the transposition of the UCPD in the UK in Duivenvoorde ( 2014 ), pp 103 –128.

62 See also infra.

63 See UK Consumer Rights Act 2015: “A term is prominent if it is brought to the consumer’s attention in such a way that an average consumer would be aware of it ”, S 64(2) and see infra.

are frustrated.64The trader’s errors (information made public by mistake etc.) cannotrelease him from the enforced compliance with the information provided to theconsumer, as it belongs to the normal commercial risks to which a trader isexposed.65 Yet, the binding effect of information provided to the consumer is notabsolute; it must be interpreted in line with the objective good faith It results thatwhen the information provided is blatantly wrong, the trader cannot be forced tocomply with it, as that type of information could not have created on behalf of theconsumer the legitimate expectation that it was adequate information.66In the samevein Japanese courts apply different typologies of consumers for the assessment ofwhether information duties are complied with, even despite the absence of a preciseconsumer definition in Japanese legislation.67

Despite initial conflicting approaches towards average consumers operated byChinese courts the Supreme People’s Court of China gave in 2007 the followingguidelines: judges must base their decisions on the general attention of the relevantpublic in daily life experiences taking into account the actual circumstances of eachcase and the facts causing the misunderstanding It brought scholars to suggest thatthe average consumer standard consists of two elements: the scope of the averageconsumer test (the relevant public purchasing that product with a minimum ofcommon sense) and the due attention that is paid by this average consumer (thehigher the product price and thus economic risk for the consumer, the higher theaverage consumer’s attention will be).68

In the landmark Richard v Time Inc case the Supreme Court of Canada in thecase of a sweepstake departed from the rational and reactive consumer and held that

“[ .] the expression “average consumer” does not refer to a reasonably prudent anddiligent person, let alone a well-informed person [Under the CPA], the courts viewthe average consumer as someone who is not particularly experienced at detectingthe falsehoods or subtleties found in commercial representations”69

(own emphasis)

It further concluded that the credulous and inexperienced consumer be the prevailing

64 The legislation imposes sanctions such as enforced compliance on demand of the consumer in accordance with the pre-contractual information, replacement by another product if the consumer accepts so or even the consumer ’s termination of the contract with the right to be refunded and to obtain compensation for damages See more on this topic in the contribution of Donato Oliva to this book.

65 As a result, the lower price indicated on the product prevails on the price inserted in the computer.

66 For instance when a new car would be advertised at 50 (currency) instead of 50,000 (currency), the seller is not forced to sell the car at this ridiculous price, as the consumer cannot legitimately expect that a new car would be sold at that price.

67 See the contribution of Nozawa to this book See also on this point, Nakata ( 2016 ), pp 479 –505, who submits: “The notion ‘consumer’, which forms the core of consumer law, was firstly used in the Consumer Protection Basic Act which was promulgated and put into force in 1968, but there is

no provision de fining this term” (p 481) Compare with Kano ( 2016 ), pp 467 –468 and 471–472 and see also Nakata ( 2009 ), pp 803 –815.

68 See the contribution of Yang to this book.

69 Supreme Court of Canada, Richard v Time Inc., 2012 SCC 8 [2012] 1 SCR 265 at par.

71 (emphasis added).

model:“The words “credulous and inexperienced” [ .] describe the average sumer for the purposes of the C.P.A This description of the average consumer isconsistent with the legislature’s intention to protect vulnerable persons from thedangers of certain advertising techniques The word“credulous” reflects the fact thatthe average consumer is prepared to trust merchants on the basis of the generalimpression conveyed to him or her by their advertisements However, it does notsuggest that the average consumer is incapable of understanding the literal meaning

con-of the words used in an advertisement if the general layout con-of the advertisement doesnot render those words unintelligible”70 (own emphasis).71 This credulous andvulnerable paradigm evidently strengthens the pre-contractual and contractual infor-mation duties towards consumers,72 but despite the Canadian Supreme Court’sadherence to this decisive test of a credulous and inexperienced consumer, theQuébec’s Court of Appeal would rather set aside the vulnerable paradigm in case

a contract was passed and turn to basic interpretative tools that provide for instancethat doubt is always resolved in favour of the consumer.73

2.2.3 The Changing Nature of the European Average Consumer: From

a Severe Obligation to Internalize Disclosed Information

to Acceptance of Different Levels of Attention

As was pointed out above, the average consumer benchmark is used to assess thetransparency of information Outside the European Union some countries seem toadhere to a consumer expectation test in that respect In the European scholarlydebate it has been sometimes objected that the current legislation lacks a realbenchmark of reasonable consumer expectations Especially with regard to digitalcontent it has been submitted that the absence of such benchmark may have adverseeffects on the level of protection of media users.74 According to those scholars

“consumer information can shape the reasonable expectations of consumers, andthereby also the level of protection consumers can reasonably expect In this respect,the level of protection consumers can expect (e.g according to the rules of fairness of

70 Supreme Court of Canada, Richard v Time Inc., 2012 SCC 8 [2012] 1 SCR 265 at par 72.

71 This new turn has been criticized by legal scholars as being too paternalistic and shirking consumer ’s responsibility See in that regard the contribution of Arbour to this book.

72 See the contribution of Arbourto this book, who further state that according to the Québec Consumer Protection Act any statement or information provided by the merchant has a binding effect among parties and is used to the advantage of the consumer Also the contractual fitness for purpose and conformity requirement opens doors to claims based on concealment, silence or otherwise misinformation connected with pre-contractual representations.

73 Contractual parties are expected to gain more than a general impression of the agreed contractual terms See more on this in the contribution of Arbour to this book.

74 Helberger et al ( 2013 ), pp 50 –51 These scholars argue that instead of leaving the matter entirely

at the discretion of suppliers and relying on consumer information, a certain minimum standard of usability, safety and consumer friendliness of digital content must be imposed (p 50).

commercial practices or contract terms), depends to a considerable extent on theextent to which consumers have been informed Hence, consumer information mayindirectly also serve as an unfair exclusion clause”.75

On a broader account, Piazzon submits that the general pre-contractual tion obligation in civil law countries distinguishes itself from the general duty toprovide consumers with sufficient pre-contractual information, the former beingsubjective whereas the latter is standardised and abstract The information dutyoriginating in the French Code Civil for instance has an inherent subjective element

informa-in that its informa-intensity may vary informa-in accordance with the subject matter of the contract andeven the capacities of the person concerned In contrast, he argues, the Europeanstandardised general information duty has an objective and abstract character, with adetailed list of information particulars irrespective of the precise subject matter of thecontract and regardless the level of knowledge of the consumer.76

Although there is a certain truth in this assessment, it seems that the divide ismuch less present in other EU countries since some national reporters point out thatthrough the intermediary of good faith courts can decide on a case-by-case basiswhether the information provided by the business corresponds to what an average,circumspect consumer may need to take an informed decision Aforementionedanalysis of the application of the average consumer benchmark in Sect.2.2.2alsoillustrates the existingflexibility In that respect some Greek scholars warn that goodfaith may not be used in such a manner that it overburdens businesses by obliging forinstance to teach or educate consumers The Greek Supreme Court came to help anddecided that the pre-contractual duty of suppliers to clarify the contractual content tothe other contractual party must not extend to subject matters about which theconsumer has information of its own or could have obtained information of itsown.77

Although the national courts’ practices demonstrate the malleability of theEuropean average consumer, the critique addressed to the CJEU and also voicedabove by Piazzon, that this consumer standard is unrealistically high and assumeseconomic behaviour of persons that is far too rational did not fall on deaf ears In thatrespect, some recent developments in the case law of the Court of Justice of theEuropean Union deserve attention

In the beginning, the CJEU consistently held that the assessment whether anappellation, brand name or advertising statement may be misleading must take intoaccount the presumed expectations of an average consumer who is reasonably wellinformed and reasonably observant and circumspect.78 This benchmark of the

75 Helberger et al ( 2013 ), p 51.

76 See more extensively on this point, the contribution of Piazzon to this book.

77 See Greek Supreme Court Decision nr 1435/2015, available on http://www.areiospagos.gr , and more in the contribution of Karampatzos and Kotios to this book.

78 See in particular, CJEU 28 January 1999, Case C-303/97, Sektkellerei Kessler, ECLI:EU: C:1999:35, para 36 Thereby, the CJEU was not particularly inspired by human information processing models taken from other disciplines See for example the Limited Capacity Model of Mediated Message Processing and the LC4MP developed by Lang already referred to above.

European average consumer has its origin in the prime consideration taken from thenon-binding preliminary programmes for a consumer protection and informationpolicy that consumers should be enabled to make a choice in the market in fullknowledge of the facts.79 The emergence of this European consumer image wasimplicitly present in misleading practices cases like GB-Inno-BM,80Yves Rocher81and Mars,82and was subsequently consolidated in the Gut Springenheide and Tuskycase.83 It has been confirmed since in case law, and also more recently inlegislation.84

With regard to labelling requirements, the CJEU emphasized that the rationalconsumer whose purchasing decisions depend also on the composition of theproducts willfirst read the list of ingredients.85

As a result the average consumerwho is“reasonably well informed and reasonably observant and circumspect” is notmisled by the use of a term on the label if the seemingly misleading impression theterm entails is contradicted by the list of ingredients that duly indicates the presence

of all the ingredients in the product.86Hence, a comprehensive and correct list ofingredients on the packaging of a product may prevent a consumer’s misleadingimpression derived from a term or depiction used on the packaging of the product.87

79 CJEU 7 March 1990, Case C-362/88, GB-Inno-BM, ECLI:EU:C:1990:102, para 17: “a bition against importing certain products into a Member State is contrary to (the provisions relating to free movement of goods) where the aim of such a prohibition may be attained by appropriate labelling of the products concerned which would provide the consumer with the information he needs and enable him to make his choice in full knowledge of the facts ”(own emphasis).

prohi-80 See CJEU 7 March 1990, Case C-362/88, GB-Inno-BM, ECLI:EU:C:1990:102 The ECJ agreed with the European Commission that any normally aware consumer knows that annual sales take place only twice a year so that the ‘European’ consumers would not be misled by information on temporary price reductions.

81 CJEU 18 May 1993, Case C-126/91, Yves Rocher, ECLI:EU:C:1993:191 The Court held that the prohibition on ‘eye-catching’ advertising was disproportionate: it also prohibits correct advertis- ing that is eye catching.

82 CJEU 6 July 1995, Case C-470/93, Mars, ECLI:EU:C:1995:224, para 24 The CJEU held that

“reasonably circumspect consumers 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 increase ”.

83 CJEU 16 July 1998, Case C-210/96, Gut Springenheide and Tusky, ECLI:EU:C:1998:369, para 31.

84 See Directive 2005/29/EC on unfair commercial practices (UCPD) and Directive 2011/83/EU on consumer rights (CRD).

85 This list contains all the ingredients of the foodstuff in descending order of weight, see Regulation 1169/2011/EU on the provision of food information to consumers, OJ 2011, L 304/18.

86 See to that effect, e.g CJEU 9 February 1999, Case C-383/97, Van der Laan, ECLI:EU: C:1999:64, para 37.

87 See e.g CJEU 10 September 2009, Case C-446/07, Severi, ECLI:EU:C:2009:530, para 61 on the question whether the designation of a foodstuff, ‘Salame tipo Felino’, which is evocative of a place and which is not registered as a PDO (protected denomination of origin) or PGI (protected geographical indication) may be legitimately used by producers who use it uninterruptedly for a

And yet, despite the preference for an average consumer tailored to the objectives

of the internal market, recent developments in the CJEU’s case law may reveal achanging approach towards the consumer’s duty to internalize disclosed informationand perhaps also towards national courts’ leeway to include national preferences inthe assessment

In the recent Teekanne case88the Court had to interpret the alleged misleadingcharacter of the mentions on the packaging of a fruit tea That packaging comprised anumber of elements of various sizes, colour and font, in particular (i) depictions ofraspberries and vanillaflowers, (ii) the indications ‘fruit tea with natural flavourings’and‘fruit tea with natural flavourings – raspberry-vanilla taste’ and (iii) a seal withthe indication ‘only natural ingredients’ inside a golden circle The questionsreferred to the Court were not so much about whether information requirementsstemming from the foodstuff labelling directive89were complied with,—the list ofingredients on the packaging correctly referred to‘natural flavourings with a taste ofvanilla’ and ‘natural flavourings with a taste of raspberry, blackberries, strawberry,blueberry, elderberry’—, but whether the depictions on the packaging of the fruit teawere of such a nature that they could mislead consumers with regard to the tea’scontent In other words, does the labelling of a foodstuff and methods used for thelabelling give the consumer the impression, by means of the appearance, description

or pictorial representation of a particular ingredient, that that ingredient is present,even though it is not in fact present and this is apparent solely from the list ofingredients on the foodstuff’s packaging?

Having regard to the settled case-law set out above, one would have expected theCJEU to rule that the list of ingredients expresses, in a manner free from doubt, thefact that theflavourings used are not obtained from vanilla and raspberries but onlytaste like them, and that correct and complete information provided by the list ofingredients on packaging constitutes sufficient grounds on which to rule out theexistence of any misleading of consumers As was indicated above, consumers havethe duty to internalize information which is disclosed to them in the market and onthe products

Atfirst, the Court in Teekanne confirmed that “it is apparent from the case-lawthat the Court has acknowledged that consumers whose purchasing decisions depend

considerable period and in good faith, is misleading “It is clear from the Court’s case law that, in order to assess the capacity to mislead of a description to be found on a label, the national court must

in essence take account of the presumed expectations, in light of that description, of an average consumer who is reasonably well informed, and reasonably observant and circumspect, as to the origin, provenance, and quality associated with the foodstuff, the critical point being that the consumer must not be misled and must not be induced to believe, incorrectly, that the product has an origin, provenance or quality which are other than genuine ”

88 CJEU 4 June 2015, Case C-195/14, Bundesverband der Verbraucherzentralen e a vs Teekanne GmbH,ECLI:EU:C:2015:361.

89 See Directive 2000/13/EC on the labelling, presentation and advertising of foodstuffs, OJ 2000, L 109/29 This directive is repealed by Regulation 1169/2011/EU on the provision of food informa- tion to consumers, OJ 2011, L 304/18.

on the composition of the products in question willfirst read the list of ingredients,the display of which is required”.90But then the CJEU surprisingly continued that

“the list of ingredients, even though correct and comprehensive, may in somesituations not be capable of correcting sufficiently the (average reasonably wellinformed, and reasonably observant and circumspect) consumer’s erroneous ormisleading impression concerning the characteristics of a foodstuff that stemsfrom the other items comprising its labelling”(own emphasis).91 In doing so, theCJEU for thefirst time recognised in the Teekanne case that correct and completeinformation provided by the list of ingredients on packaging in accordance with thelabelling of foodstuffs directive may constitute misleading advertising It followsthat the display of the correct and comprehensive list of ingredients no longer rulesout the possibility that the labelling has the capacity to mislead consumers.These developments with respect to labelling requirements demonstrate that theCJEU is increasingly aware of national critiques on how the benchmark of theaverage consumer is applied in cases of deception It reduces the consumer’sresponsibility to process information as well as his duty to internalize mandated orvoluntary disclosures when taking purchase decisions.92

This case law exerts an influence on how the prohibition of misleading cial practices under the Unfair Commercial Practices Directive (hereafter: UCPD)93

commer-is to be applied and allows national judges to mitigate to a certain extent theoutcomes of the assessment in the light of the European average consumer bench-mark The recent Canal Digital94 case seems to confirm the approach taken inTeekanne

That case concerned Canal Digital’s price advertising campaign for TV scriptions on television and on the internet The CJEU held that when the price of aproduct is divided into several components, one of which is particularly emphasised

sub-in the marketsub-ing, while the other is completely omitted or is presented less

90 CJEU 4 June 2015, Case C-195/14, Bundesverband der Verbraucherzentralen e a vs Teekanne GmbH,ECLI:EU:C:2015:361, para 37.

91 Ibid., para 40.

92 Also in the domain of unfair contract terms the CJEU showed itself prepared to reduce the impact

on the (un)fair character of contract clauses of even extensive pre-contractual information, see CJEU 3 April 2014, Case C-342/13, Katalin Sebestyén v Zsolt Csaba K ővári, OTP Bank Nyrt., OTP Faktoring Követeléskezel ő Zrt, Raiffeisen Bank Zrt, ECLI:EU:C:2014:1857 The CJEU first con- firmed the fundamental importance of pre-contractual information for the consumer’s decision to be bound by the conditions drafted in advance by the seller or supplier But instead of connecting immediate consequences for consumers to this voluntary disclosure by the trader, the CJEU was prepared to mitigate its impact on consumers, pointing out that “even assuming that the general information the consumer receives before concluding a contract satis fies the requirement under Article 5 that it be plain and intelligible, that fact alone cannot rule out the unfairness of a clause such as that at issue (red.: arbitration clause) in the main proceedings ”(own emphasis) The high level of consumer protection set forth by the Unfair Contract terms Directive must also have played

a role in the ECJ ’s decision See more extensively infra in Sect 5.2

93 Directive 2005/29/EC concerning unfair commercial practices, O.J 2005, L 149/22.

94 CJEU 26 October 2016, Case C-611/14, Canal Digital Danmark, ECLI:EU:C:2016:800.

conspicuously,“an assessment should be made, in particular, whether that tation is likely to lead to a mistaken perception of the overall offer”.95This will bethe case“if the average consumer is likely to have the mistaken impression that he isoffered a particularly advantageous price, due to the fact that he could believe,wrongly, that he only had to pay the emphasised component of the price”.96 Anadvertisement will be all the more misleading if the omitted or less visible compo-nent of the price represents a significant part of the total price that the consumer isrequired to pay The fact that the total price was mentioned in the initial advertising

presen-or could be retrieved on the website of the advertiser does not shield the trader fromthe application of the prohibition of misleading actions The CJEU stressed thatoffers for TV programme packages are likely to confuse consumers due to thesignificant asymmetry of information which results from the wide variety of pro-posals and combinations that are highly structured, both in terms of cost and content,and, furthermore, that the time available for the consumer to assess informationprovided to him in a television advertisement is limited

The objective of a high level of consumer protection set forth in the UnfairCommercial Practices Directive (UCPD) serves then as a correcting factor for literalinterpretations of the Directive’s provisions with adverse effects on consumerprotection.97This objective played also a significant role in the Carrefour-judgment

of the CJEU.98In that case the Court had to assess whether the price comparison ofthe general price level of competitors was misleading when that extrapolation ofprices is based on the prices of a range of basic consumables in the hypermarket ofthe advertiser (Carrefour) on the one hand with the prices of the basic consumables

in the supermarket of the competitor (Intermarché) on the other hand.99The Courtseemed prepared to apply the stricter information standard and confirmed itsapproach in Canal Digital It held that“with regard to advertising such as that atissue in the main proceedings, it follows from the foregoing considerations that theinformation on the basis of which the comparison was made between the pricescharged in shops having larger sizes or formats in the advertiser’s retail chain andthose displayed in shops having smaller sizes or formats in competitors’ retail chains

is information in the absence of which it is highly likely that the advertising wouldfail to fulfil the objective comparison requirement and would be misleading There-fore, that information must not only be provided clearly but, ( .), be contained inthe advertisement itself”(own emphasis).100

95 CJEU 26 October 2016, Case C-611/14, Canal Digital Danmark, ECLI:EU:C:2016:800, para 43.

96 Ibid.; para 44.

97 See more on misleading practices, infra Sect 3

98 CJEU, 8 February 2017, Carrefour Hypermarchés, Case C-562/15, ECLI:EU:C:2017:95.

99 It must be noted that Intermarché also exploited hypermarkets and that the advertising only provided additional information about the basis of the price comparison on the website of the advertiser or through the less visible reference to ‘super’ in much smaller font, at the bottom of the advertising.

100 CJEU, 8 February2017, Carrefour Hypermarchés, Case C-562/15, ECLI:EU:C:2017:95, para 38.

Thus, in a striking parallel with Teekanne the CJEU emphasizes in Canal Digitaland Carrefour that an average consumer who is provided with correct and compre-hensive information in advertisements, nevertheless may have a mistaken perception

of the offer due to the presentation of that information taken as a whole The Courtdoes so without renouncing that the average consumer must serve as a benchmarkfor the assessment of misleading practices (in labelling, in advertising, etc.) Thatway, the Court seems to confirm its stance developed with regard to misleadingpackaging of products Despite the absence of any reference to Teekanne it may inour view be deduced from the approach taken in Canal Digital Danmark andCarrefour that a similar correction101to the general rule applies in both subdomains

of misleading practices Doing so, the CJEU has managed to bridge the case law inboth domains of unfair marketing law

It follows that even when the trader satisfies the information requirementsimposed by the law, it does not automatically rule out that the information may bepresented in such a manner that the average consumer remains misled, notwith-standing the correct and comprehensive information he received This characteriza-tion must be based by the national judge on an overall assessment of the case As theCJEU pointed out in Teekanne, Canal Digital Danmark and Carrefour, in somecircumstances correct and comprehensive information may no longer be capable ofcorrecting the consumer’s erroneous or misleading impressions based on otherinformational elements This will be especially so in the case of price informationprovided to consumers in TV-advertising for rather complex products and in the case

of advertising for or information on the package of a daily product In thosecircumstances the CJEU accepts that the level of attention of consumers may belower and hence their capability to absorb the disclosed information due to either thereduced time to internalize the information (e.g in the case of a TV ad) or the factthat the consumer (sometimes hastily) buys a daily product (e.g fruit tea or otherproducts from the range of basic consumables in supermarkets).102

Interestingly Chinese law tends to a certain extent in the direction of Europeanlaw where it explicitly recognizes that businesses could manipulate consumersthrough the use of font sizes and colour differences If for instance the variety ofvaluable ingredients or the presence of one ingredient is emphasized on the productpackaging the exact volume of that/those ingredients must be indicated in a clear andprominent manner.103It is also considered to be manipulative when the packaging offoodstuffs prominently displays pictures of ingredients which are not present in theproduct or refers to qualities that the product does not possess

101 Namely that even in the presence of complete and correct information deception of an average consumer can take place See already on this point prior to the Canal Digital Danmark case, Straetmans ( 2018 ), pp 102 –103.

102 It must be observed that those recent developments in the case law of the CJEU offer interesting parallels with the Irish Supreme Court ’s analysis in the McCambridge-case and the Bundesgerichtshof ’s case law highlighted above See more extensively on this point Straetmans ( 2018 ).

103 See the contribution of Yang to this book.

2.2.4 Toward a Definition of Vulnerable Consumers: The Sick,

the Elder and the Young?

The foregoing analysis has demonstrated that courts in and outside the EU deviseways to protect more vulnerable consumers than the one that would normally equatewith the average consumer On a broader account the question arises whetherspecific categories of vulnerable consumers deserve specific attention whenassessing the unfair character of commercial practices from their perspective?Despite the overwhelming attention to the so-called ‘average consumer’ theEuropean legislator does not rule out the protection of specific categories of vulner-able consumers Quite on the contrary, the Unfair Commercial Practices Directive(UCPD) dictates that in case commercial practices are likely to materially distort theeconomic behaviour only of a clearly identifiable group of consumers who areparticularly vulnerable to the practice or the underlying product because of theirmental or physical infirmity, age or credulity in a way which the trader couldreasonably be expected to foresee, the unfairness of the commercial transactionshall be assessed from the perspective of the average member of that group.104The total harmonisation character of this directive brought EU member states to aliteral transposition of this requirement in their national legal order When advertis-ing is specifically targeted to those groups or the characteristics of a product implythat such group must be the target group, a more protective interpretation is in place.This could for instance be the case if video games or products promising cure, oreliminating the symptoms of a disease are advertised for.105A similar requirementmay be deduced from introductory recital 34 of the Consumer Rights Directive.106However, the impact of the reference to the specific needs of particularly vulnerable

104 See Article 5 (3) UCPD, O.J 2005, L 149/22 Article 5(2) UCPD already prescribes that if a commercial practice is speci fically targeted to a particular group of consumers, the assessment of its unfair nature must be made in the light of the average member of that group In this regard the European Commission recognizes that legal scholars increasingly criticise the appropriateness of the benchmark of the average consumer and voice concerns that the benchmark provides insuf fi- cient protection to consumers that are less capable and more careless than average However, even though the Fitness Check Report provides arguments to basically doing away with the speci fic rule

in Article 5(3) and integrating its content in Article 5(2)(b), the European Commission refrains from amending the UCPD in the absence of evidence of major problems in the application of the current rules (see Report of the Fitness Check of EU Consumer and Marketing Law 2017 , p 111).

105 The annex to the UCPD contains speci fic prohibitions in this regard: “Including in an ment a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them ” is an aggressive practice prohibited under all circum- stances “Falsely claiming that a product is able to cure illnesses, dysfunction or malformations” and

advertise-“Claiming that products are able to facilitate winning in games of chance” are misleading mercial practices prohibited under all circumstances.

com-106 See introductory recital 34 of Directive 2011/83/EU: “In providing that information, the trader should take into account the speci fic needs of consumers who are particularly vulnerable because of their mental, physical or psychological in firmity, age or credulity in a way which the trader could reasonably be expected to foresee However, taking into account such speci fic needs should not lead

to different levels of consumer protection ”, O.J 2011, L 304/64.

consumers is immediately cut short as the introductory recital to that directivecontinues that this more targeted approach “may not lead to different levels ofconsumer protection”.

To what precise extent the assessment of the pre-contractual information or themisleading character of commercial practices becomes more restrictive whenassessed from the perspective of particular groups of vulnerable consumers remainsunclear.107 Since the specific assessment is only required in case a commercialpractice foreseeably targets a clearly identifiable group of particularly vulnerableconsumers and is likely to materially distort their economic behaviour, jurispruden-tial applications are rare

Yet, legal scholars detected for instance an increasing tendency in Polish istrative proceedings to pay special attention to persons belonging to a specific agegroup, such as elderly people, or to the sick when commercial practices are targeted

admin-to them.108 Also the Finnish case law with its stronger roots in protecting lessrational consumers considers underage consumers or persons suffering from anillness to be more vulnerable calling for more protective interpretations In thesame vein persons suffering from an illness were specifically taken account off inthe case law of the Supreme Administrative Court in the Czech Republic In itsjudgment of 17 January 2014, the Court concluded:“The average consumer who isadequately informed, attentive and reasonable, which is generally a benchmarkwhen assessing advertising, is not so critical that he/she would be completelyimmune to advertising If the target group is the sick, consideration should begiven to their lower critical thinking and greater tendency to believe the advertisingthat promises cure for their illness An average consumer suffering from a certaindisease is undoubtedly more prone to believe a certain claim about curing his/herdisease than an average healthy consumer.”109

Also the Greek legislator provided for a follow-up on the discretion left by theUCPD In line with the UCPD elderly people, children and teenagers are considered

to be vulnerable groups of consumers Pursuant to Article 7A par 1(a) of Law 2251/

1994, suppliers in Greece are also required to place on the market“products110that,

by their purpose, use or conditions of supply do not pose risks to the mental,

107 For an analysis from a behavioural perspective, see Duivenvoorde ( 2014 ), pp 183 –192, who concludes that “it is difficult in practice to identify vulnerable groups Qualifying groups as inherently vulnerable is problematic, as vulnerability is highly dependent on the individual con- sumer and the speci fic situation” (p 192).

108 See the contribution of Namyslowska and Jablonowska to his book.

109 See the contribution of Selucká, Staviková Reznicková and Loutocký to this book.

110 The products referred to here are i.a products that may cause fear or anxiety to minors, promote (directly or indirectly) violent behavior and use of force, insult human decency, promote behavioral models that are not in accordance with the moral or legal rules of modern society or endanger the environment, lead to distinctions based on sex, race, religion etc or lead to hazardous addictions In practice, the rule speci fically targets suppliers of electronic entertainment products such as video games which must have af fixed age labels.

psychological or moral growth of minors.”111 In a similar attempt the FrenchConsumer Code and the Penal Code sanction the abuse of the vulnerability orignorance of persons who are not capable to understand the effects of the contractsthey conclude and are not capable to discern artifices and ruses used to convincethem to contract Also the practice by which such person is given the impression ofbeing under a constraint to contract, is sanctioned The categories of personsenvisaged by these rules are particularly vulnerable persons due to their age (such

as minors) or due to sickness, pregnancy, a particular weakness, or a physical orpsychological incapacity Also persons that undergo severe physical and psycho-logical pressure or that are the subject of, manipulative techniques’ to alter theirtransactional decisions are protected.112

Equally in non-European countries there is an increasing tendency to applystricter standards for groups of particularly vulnerable consumers For instanceJapanese case law tends to protect elderly people more than others.113Also Brazilianlegislation counts among the consumers who have an aggravated vulnerability, thechildren,114elderly people,115persons with fragile health116or disabled persons.117These categories of so-called‘hyper-vulnerable’ consumers are protected in accor-dance with their personal situation, allowing thus for a protection that is adequateand proportional to the real needs of the vulnerable person.118

In an even broader perspective119 the Consumer Protection Act in Québecrecognizes subjective lesion On this basis a contract was deemed null because the

111 See the contribution of Karampatzos and Kotios to this book.

112 See the contribution of Piazzon to this book See also for a more extensive analysis of the case law concerning particularly vulnerable groups such as children, teenagers and elderly in Germany and in Italy, Duivenvoorde ( 2014 ), pp 97 –100 and 144–152.

113 See the contribution of Nozawa to this book Compare with Nakata ( 2016 ), pp 490 –491, who refers to speci fic solicitation acts of elderly people that are prohibited by the Consumer Contract Act

as practices that run against the principle of good faith.

114 Article 2 of Law n 8.069/1990 (The Child and Adolescent Statute): “For the purposes of this Law, the child is considered as the person who has not yet completed twelve years of age and the adolescent as the person between twelve and eighteen years of age ”.

115 Article 1 of the Law n 10.741/2003 (Elderly ’s Statute): “The Elderly’s Statute is instituted with aiming at regulating the rights ensured to someone who is 60 (sixty) years old or older ”.

116 “The probability of the irreparable or hard to repair damage is evident, since the appealed, hyper vulnerable as he is due to his health condition, needs urgent medical care, as per the medical report filed in the records; it is certain that Article 35-C, I of Law n 9.656/98 establishes as mandatory the coverage of treatment in those cases ” (Tribunal of Justice of Rio de Janeiro, AI 0025048- 97.2016.8.19.0000, 27 ª CC Consu., Rel Des Marcos Alcino de Azevedo Torres, julg 14.9.2016).

117 Article 2 of Law n 13.146/2015 (Statute of Disabled Persons): “A person is considered disabled when he/she has a long-term impediment of physical, mental, intellectual or sensory nature which, when faced with one or more obstacles, can hinder his/her full and effective participation in society

in equal conditions with other people ” See also Pierri ( 2014 ), p 27.

118 For more examples see the contribution of Donato Oliva to this book.

119 In the context of whether a consumer consented to a contract Subjective lesion allows the consumer to demand the nullity of a contract or a reduction in his obligations thereunder where the disproportion between the respective obligations of the parties is so great as to amount to

consumer did not have the means to acquire a leisure yacht Subjective lesion stemsout of the disproportion between the actual value and thefinancial capacity of theconsumers It seems to imply that sellers of luxurious goods must acquire informa-tion from their clients to assess theirfinancial capacity and to find out whether thefinancial burden sustained by the consumer is not excessive.

It may then be concluded from the foregoing that underage people like childrenand teenagers, elderly people and people suffering from a particular disease are inmost of the reported countries expressly recognised as particularly vulnerable groups

of consumers

3 Pre-contractual Information Requirements

3.1 General Duty of Information Disclosure

EU law imposes a general duty of information disclosure for most on premises,distance and off premises contracts.120The trader must provide information on anumber of issues (details about the trader, main characteristics, total price, duration,cancellation rights if any, delivery, )121 before the consumer is bound by the

exploitation of the consumer or where the obligation of the consumer is excessive, harsh or unconscionable Where the court must determine whether a consumer consented to a contract, it shall consider the condition of the parties, the circumstances in which the contract was entered into and the bene fits arising from the contract for the consumer See in more detail, the contribution of Arbour to this book.

120 The general information duty in EU law stems from Directive 2011/83/EU on consumer rights, O.J 2011, L 304/64; the directive harmonised the information duties for contracts other than distance and off premises contracts but allows the member states to adopt or maintain additional pre-contractual information requirements (see Art.5 (4); some member states made use of this option but only to a very limited extent: see e.g Poland, Belgium and to a larger extent France) Speci fic pre-contractual information requirements for distance and off-premises contracts are imposed by Article 6 of the Directive The Directive also excludes a number of contracts from its scope, e.g an on premises contract which involves a day-to-day transaction and which is performed immediately at the time when the contract is entered into (on-the-spot on-premises contracts).

121 The option in the Directive to include language requirements regarding the contractual tion is taken up by some member states; see e.g Poland, Italy, France (e.g on consumer demand businesses must provide a copy of the model contract they normally conclude in French) Romania and Greece further impose speci fic language requirements in accordance with the European food labelling regulation These language requirements must be reconciled with the case law of the Court

informa-of Justice that allows member states to impose speci fic language requirements unless full tion of consumers may be achieved by other means such as pictograms, symbols, labels, figures etc The language used by the trader often has an impact on the national judges ’ assessments of transparency of contract terms, especially when the contract terms are provided to the consumer

informa-in another language than the of ficial language of the territory where the contract is offered However, the Unfair Contract Terms Directive (O.J 1993, L 95/29) does not contain any clari fi- cation in this respect Hence legal scholars argue that transparency in a cross-border context implies