The ageless question regarding the interpretation of the average consumer benchmark at EU level recently gained momentum. The Court of Justice of the European Union (CJEU) has deviated in a judgment from a strict application of the formula of the “reasonably well informed and reasonably observant and circumspect” consumer established in Gut Springenheide.Footnote ¹ In classical internal market law this “average consumer” has a right to correct information. The cognitive processing of such information, however, largely rests with the consumer.Footnote ² In Commission v Germany, for instance, the European Court of Justice stipulated that a correct list of ingredients is sufficient to inform consumers when making a purchase decision.Footnote ³ Admittedly, this interpretation did not account for all market participants in the same way: right from the beginning of EU consumer law, EU law knew a higher level of protection depending on the status of the market participants; children, for example, always enjoyed a higher level of protection.Footnote ⁴ However, EU secondary law that uses the “average consumer” benchmark does not take into account a context-specific higher level of protection than the one determined by that benchmark.Footnote ⁵ Recently, by way of interpretation of the “average consumer” benchmark, the EU judiciary peu à peu determined also such a context-specific situational approach to justify a higher protection: in Koipe the Court of First Instance had, in 2007, held in trade mark law that:

Recently, the CJEU argued in a comparable manner in Teekanne,Footnote ⁷ thereby “providing a necessary ‘update’ to the concept in older jurisprudence.”Footnote ⁸ The CJEU stipulated that “the list of ingredients, even though correct and comprehensive, may in some situations not be capable of correcting sufficiently the consumer’s erroneous or misleading impression concerning the characteristics of a foodstuff that stems from the other items comprising its labelling.”Footnote ⁹

Admittedly, these are (yet) single judgments concerning special areas of internal market law (trademark law and food law). For this reason generalising conclusions should be drawn only with great care, if at all. One has to admit, however, that in both judgments, contrary to established case law, the European judiciary has interpreted the “average consumer” in a much more realistic way. This approach sits uneasily with the ratio of classical internal market law. It remains to be seen if the European judiciary will continue this trend, which then might eventually replace the classical interpretation of the “average consumer” with a much more realistic one. If it did, this may have an impact on Member State sovereignty in a core area of internal market law, i.e. consumer law and trademark law. For businesses, this new interpretation first and foremost means uncertainty. Which situations are to be acknowledged when designing the list of ingredients? A correct list, as is clear from the judgment, is no longer sufficient to escape EU law.

If one connects this shift with the CJEU’s postulate in Scotch Whisky Association, Footnote ¹⁰ where the Court requires national courts to ex officio apply newest scientific evidence in the suitability review,Footnote ¹¹ one is confronted with interesting interdisciplinary questions.Footnote ¹² According to these judgments, these questions may now emerge from the shadows of science and become of practical relevance in legal practice. When the European judiciary increasingly resorts to situational consumer behaviour when interpreting the “average consumer” benchmark, and at the same time asks for the incorporation of more scientific evidence into the review of the proportionality principle, this might have an impact on the incorporation of behavioural sciences into Unfair Commercial Practices law. If the proportionality principle gets “topped up” with scientific elements, this has implications on the interpretation of the “average consumer” benchmark, which is by itself a product of the proportionality test.Footnote ¹³ Situational consumer behaviour can be explained in a scientifically robust way by behavioural sciences. When the Court includes situational perspectives into the “average consumer” benchmark and combines this with the need to base proportionality decisions on science, the door is open to interpret norms of Unfair Commercial Practices law directly in light of behavioural science.

Notwithstanding all openness for the implementation of behavioural sciences into law, a word of caution should be added. Most lawyers in Europe have serious misgivings about the implementation of interdisciplinary or even transdisciplinary works. In this respect, very little has been done from the legal side beyond the mere application of behavioural science into law. Legal science needs to close this gap by facing the many questions that the implementation of behavioural sciences into law imposes: one could fall for the belief that behavioural sciences constitutes the most authoritative method for the implication of law simply because it is “scientific”.Footnote ¹⁴ This would result in the risk of over-theorising problems that may have a simple solution, might have severe consequences for the law/politics divide and indeed better hide a normative invasion into law behind a science facade.Footnote ¹⁵ Critics argue that the incorporation of behavioural insights at an abstract level is not a favourable solutionFootnote ¹⁶ as the real world differs from an experimental oneFootnote ¹⁷ and behavioural insights are context-specific and do not allow for generalisations.Footnote ¹⁸ Extrapolating experimental decisions to purchase decisions can be difficult due to potentially low opportunity costs in experimental settings.Footnote ¹⁹ Regulation based on behavioural sciences may also introduce unwanted collateral costs.Footnote ²⁰ In some settings, biases have been proven to be accurate responses to a complex world;Footnote ²¹ if one bases regulation on behavioural insights one could cut off such responses. In addition, EU Unfair Commercial Practices law has an integrationist purpose, whereby it also has to react to different economic prerequisites in the EU. When a practice is defined as misleading at EU level, this has an impact on the cost structure of businesses.Footnote ²² Member States with many small- and medium-sized businesses might be more affected by stricter rules at EU level than those with larger businesses, which may affect European integration.

From a legal point of view this criticism can be addressed with the normative value of law which, unlike science, needs to make a normative claim to decide in conflict situations. If it has to decide, why should it not do so in a scientifically informed way? This, however, immediately calls for legal criteria as to which kind of science can be implemented into law. Implementing any kind of data (some data is better than none) into legal decision-making risks the introduction of bad data, which also risks the creation of bad laws. “Patchy data might be misleading if the patterns of omission are unknown, and often data collected for other purposes might carry categories that are not suited to the regulatory purpose at hand.”Footnote ²³ But even if such criteria existed, which judicial bodies would have the means to control the quality of studies?Footnote ²⁴ How should studies be controlled and implemented in the judicial multi-level system of the EU?Footnote ²⁵ These questions need to be addressed by legal science. One should, however, acknowledge that these questions are not only intellectual games of individual scientists, but may become hard juridical reality according to current developments at EU level. Legal science should, in good tradition of an anticipation of legal problems in practice, devote more time to answering these questions. It will not be enough to adopt findings from other sciences in law; legal sciences and legal scientists should also not shy away from critical discourse with other disciplines. Only by doing so can legal sciences assure us that legal thinking and legal values will find their way into research questions of other disciplines. The development of the “average consumer” benchmark at EU level provides a good opportunity to start doing this. The question of the correct interpretation of the “average consumer” benchmark hence remains not only ageless, but is steadily enriched with new facets.