§2.5 Average consumer

Recital 18 It is appropriate to protect all consumers from unfair commercial practices; however the Court of Justice has found it necessary in adjudicating on advertising cases since the enactment of Directive 84/450/EEC to examine the effect on a notional, typical consumer. In line with the principle of proportionality , and to permit the effective application of the protections contained in it, this Directive takes as a benchmark the average consumer, who is reasonably well informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice , but also contains provisions aimed at preventing the exploitation of consumers whose characteristics make them particularly vulnerable to unfair commercial practices. Where a commercial practice is specifically aimed at a particular group of consumers, such as children, it is desirable that the impact of the commercial practice be assessed from the perspective of the average member of that group… The average consumer test is not a statistical test. National courts and authorities will have to exercise their own faculty of judgment, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case . As indicated in Recital 18 and further specified in Articles 5 to 9, the UCPD’s benchmark for assessing the impact of a commercial practice is the notion of the ‘average consumer’, as previously developed by the Court: ‘…in order to determine whether a particular description, trade mark or promotional description or statement is misleading, it is necessary to take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect .’ (135) This concept was indeed developed by the Court of Justice prior to the UCPD. It was codified then by the UCPD to give national authorities and courts common criteria to enhance legal certainty and reduce the possibility of divergent assessments. In the case-law of the Court, the average consumer is a reasonably critical person, conscious and circumspect in his or her market behaviour. For example: The ‘reasonably circumspect consumer’ will not believe that the size of a promotional marking on a package corresponds to the promotional increase in the size of that product (136). Usually, the average consumer will not attribute to goods bearing the marking ‘dermatologically tested’ any healing effects which such goods do not possess (137). The average consumer under the UCPD is in any event not somebody who needs only a low level of protection because they are always in a position to acquire available information and act wisely on it. On the contrary, as underlined in Recital 18, the test is based on the principle of proportionality. The UCPD adopted this notion to strike the right balance between the need to protect consumers and the promotion of free trade in an openly competitive market. Therefore, the average consumer concept under the UCPD should always be interpreted having in mind Article 114 of the Treaty, which provides for a high level of consumer protection. At the same time, the UCPD is based on the idea that, for instance, a national measure prohibiting claims that might deceive only a very credulous, naive or cursory consumer (e.g. ‘puffery’ (138)) would be disproportionate and create an unjustified barrier to trade. As explicitly mentioned by Recital 18, the average consumer test is not a statistical test. This means that national authorities and courts should be able to determine whether a practice is liable to mislead the average consumer exercising their own judgment by taking into account the general presumed consumers' expectations, without having to commission an expert's report or a consumer research poll (139). For example: — A national court found that people with impaired eyesight can also be considered average consumers and printing information in a very small font can be considered a misleading commercial practice (140). A similar decision was taken by another enforcement authority (141). — A national court found that a reasonably acting consumer is not suspicious and tends to trust that the received information is valid and accurate. A reasonably acting consumer is not obliged to further search for the entire accurate content of the message delivered to them, unless the sender of the message emphatically draws their attention to, or there is strong reference to such an obligation in the text of the message (142). Article 5(2)(b) of the UCPD further refines the average consumer test when the interests of specific groups of consumers are at stake. When the practice is directed at a particular group of consumers, its impact should be assessed from the perspective of the average member of the relevant group. For instance, this could be the case when a commercial practice concerns a unique product, which is promoted through marketing channels to direct the marketing towards a specific and limited group of recipients, such as a particular profession. In this case, the average member of that particular group could have more specific knowledge or characteristics that an average consumer would not necessarily have, which has a direct impact on the assessment of the effects of the commercial practice. Given the distinction from the general category of the average consumer, the ‘particular group of consumers’ should be sufficiently identifiable, of limited scope and homogeneous. If a particular group cannot be identified, then the assessment should focus on the general average consumer benchmark. For example: In a case concerning misleading advertising of children’s diapers, notably implying a correlation between allergies and the trader's diaper's, a national court identified the average consumer as parents with small children, not having any special knowledge about allergies (143). It is also possible for different consumer groups to be concerned by the same commercial practice. For example, there can be an average consumer whom the practice reaches or to whom it is addressed (Article 5(1)(b)) and, at the same time, the practice can be targeted at a group of vulnerable consumers. In general, the assessment should take into account the consumers that were actually reached by the practice, irrespective of whether they were the consumers that the trader intended to reach. When designing their commercial messages, traders may, at times and in light of the specific nature of the products at stake, need to take certain social, linguistic and cultural features into account which are typical of the average consumers to which the products are targeted. In certain cases, such social, linguistic and cultural features, which can also be peculiar to a given Member State, may therefore also justify a different interpretation of the message communicated in the commercial practice by the competent enforcement authority or court. In a case relating to misleading cosmetics advertising, the Court 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 [average] 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”.’ (144) Moreover, the Court stated that: ‘a prohibition of marketing on account of the misleading nature of the trade mark is not, in principle, precluded by the fact that the same trade mark is not considered to be misleading in other Member States. […] it is possible that because of linguistic, cultural and social differences between the Member States a trade mark which is not liable to mislead a consumer in one Member State may be liable to do so in another.’ (145) Therefore, on the basis of the average consumer test and despite the UCPD’s full harmonisation character, it could be theoretically justified to require a foreign trader to provide additional information on social, cultural or linguistic grounds. In other words, the omission of such information could mislead consumers in the country of destination, unlike those in the country of origin.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07