The ‘Average Consumer’ of EU Law in Domestic Litigation: Examples from Consumer Credit and Investment Cases

Abstract

Divergence in European consumer law is increased by the different approaches to ‘average consumers’ found in national laws and in EU law. The ‘average consumer’ concept of EU law relies on the ability of consumers to make rational decisions. In accordance with this prototype of a ‘reasonably well-informed and reasonably observant and circumspect consumer’, protection through law is limited. By contrast, there are many situations in which national private laws adopt stricter information, advise and warning duties. That is the case, for example, in consumer credit cases where consumers are normally vulnerable and have less expertise in comparison to credit providers. Although such differentiation may be justified on grounds of consumer protection, there is a risk that fragmentation of laws – different norms from different sources – leads to legal uncertainty. To counter that problem, this paper aims to give a new perspective on the involvement of EU law in B2C private law relationships. Using the ‘average consumer’ of EU law as a benchmark for comparison, the paper charts the rules of EU Directives in consumer credit and investment law and their application in domestic litigation, highlighting the divergence of rules across the EU/national law divide, and the public/private law divide. Considering its position as a central normative standard in this area of law, the argument is put forward that the ‘average consumer’ of EU law can be a reference point for law-making in, and in between, State-based and post-national law-making.