Thematic Analysis

Abstract

Questions can be raised as to the main themes in relation to the consumer benchmarks in the Unfair Commercial Practices Directive. Firstly, it initially appears that the nature of the average consumer benchmark is unclear. Although the benchmark with its reference to the ‘average’ seems to reflect behaviour of the actual average of consumers or an abstraction thereof, the CJEUs case law indicates that the expected behaviour of the average consumer, at least in part, also reflects desired behaviour. Secondly, a question that should be addressed is what is expected of the average consumer in terms of being ‘reasonably informed, observant and circumspect’. Thirdly, as has been mentioned above, it is unclear under what circumstances the target group and vulnerable group benchmarks can be applied, and how these benchmarks relate to one another. Fourthly, also the relevance of social, cultural and linguistic factors raises questions. Fifthly and finally, questions can be raised in relation to the possibility for courts and enforcement authorities to use empirical evidence in determining the expected behaviour of the consumer.