Case Law of the CJEU

Abstract

The average consumer benchmark has its origins in the free movement of goods case law of the CJEU. In this context, the average consumer benchmark was used by the CJEU to tackle what it regarded as over-protective national laws related to unfair commercial practices. Introducing the average consumer benchmark in the Gut Springenheide case in 1998, the CJEU explicitly based the benchmark on its earlier case law. It also made clear that the average consumer benchmark should not be seen as a statistical test, but that empirical evidence can be used by notional courts if deemed necessary. In later cases, the CJEU emphasised that social, cultural and linguistic factors can be taken into account in the application of the average consumer benchmark. Overall, the case law of the CJEU applying the average consumer benchmark elucidates that the average consumer is not expected to be misled easily. In fact, some cases clearly point towards the average consumer as a careful and rational decision maker. This is different in the CJEUs cases applying the average consumer benchmark in trademark law.