In the last few decades, the field of European consumer protection law has undergone a rapid and colourful transformation. In this article, I attempt to give a short summary on one of the most controversial themes of consumer protection law, the benchmark of the average consumer. In my opinion, this theme is very actual, as in many cases it is very difficult for judges to decide whether a consumer was being misled by a professional business or not.
In trials, judges also face the following question: how should they determine if the statement of the business was indeed misleading? Moreover, could this misleading character have been known by the consumer? But what is the benchmark of a consumer? Should the consumer be described using the word ‘average’ or rather with ‘reasonably circumspect’?
Firstly, it must be underlined that the current European consumer acquis has no uniform definition of consumers. The actual wording varies in different directives, but they all share a common core: that a consumer is a natural person, who is acting outside his/her business, trade and profession. However, it must be added that the notion of consumer must be distinguished from the benchmark of the consumer. The former is based on the statutory definition, the latter being recorded as an expected kind of consumer behaviour.
After earlier judgments of the Court of Justice of the European Union (CJEU), such as in Mars (C-470/93 Verein gegen Unwesen in Handel und GewerbeKöln e.V. v Mars GmbH ), the consumer concept has reached its current definition in the Gut Springenheide case (C-210/96 Gut Springenheide and Tusky ), where the focus was to determine if the terms used to indicate the type of farming of laying hens ‘six-grain - ten fresh eggs' misleads the consumers or not. In this landmark case, the CJEU held that, in order to make a final decision, the national court must take into account the presumed expectations of a consumer which means an average consumer ’who is reasonably well-informed and reasonably observant and circumspect’.
In one of the more recent cases, Douwe Egberts (C-239/02, Douwe Egberts NV v. Westrom Pharma NV and Christophe Souranis, Carrying on Business Under the Commercial Name of ’Etablissements FICS' and Douwe Egberts NV v. FICS- World BVBA), the CJEU followed the previous line of its case law and confirmed that ’it is for the national courts, in all doubtful situations, to form a view, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect’. Therefore, it must be seen that EU law does not seek to protect the ’casual consumers’; it regards consumers as responsible individuals. In this manner, a consumer can no longer be considered a passive market participant.
In joined cases of El Corte Inglés (T-183/02 and T184/02 El Corte Inglés v Office for Harmonisation in the Internal Market (Trade Marks and Designs) ), the General Court stated that ‘the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. In addition, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks, but rather has to place his trust in the imperfect image of them that he or she has retained in his or her mind. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods and services in question’.
The CJEU adheres to its general case law on the interaction of the European and the national courts. In many instances, the interpretation of the EU legislation requires a court to refer to the national law context because the provisions of the EU directives and regulations are interwoven with provisions of national law. For example, the unfairness of a term can hardly be assessed without taking into account the position on ‘good faith’ in the general private law of a Member State. Similarly, when it comes to the ‘average consumer’ it may be necessary to leave the determination of the dispute to the national court, because further information is necessary or because the solution is not clear from the information before the CJEU (Mak 2012, p.8.).
In the Estée Lauder case (C-220/98 Estée Lauder Cosmetics GmbH & Co OHG v Lancaster Group GmbH ), the emphasis was on the role of social, cultural and linguistic factors in advertising. Could the usage of the term ’lifting’ mislead an average consumer when this term was used to promote cosmetics? In this case, the CJEU held that in order to apply that test to the present case, several considerations must be borne in mind. In particular, it must be determined whether social, cultural or linguistic factors may justify the term 'lifting', used in connection with a firming cream, meaning something different to the German consumer as opposed to consumers in other Member States, or whether the instructions for the use of the product are in themselves sufficient to make it quite clear that its effects are short-lived, thus neutralising any conclusion to the contrary that might be derived from the word 'lifting'. Plainly speaking, consumers in one country may expect a product to have certain characteristics on the basis of its trademark, while no such expectation exists in another country. Thus, in France consumers cannot expect that the product called Cottonelle handkerchief contains cotton, while in Italy, the same trademark is misleading (C-313/94 Fratelli Graffione SNC v. Ditta Fransa ).
To conclude, for all the above reasons, the average consumer in the case law of the CJEU is a reasonably circumspect critical person when making his or her market decision, and who informs himself or herself about the products well in advance. It can also be noted that social, cultural and linguistic factors must be considered. As the Court stated in the Mars case, a reasonably circumspect consumer is someone who does not believe that the size of a promotional marking on a package corresponds to the promotional increase in the size of the product.