An average consumer concept of bits and pieces - Empirical evidence on the Court of Justice of the European Union’s concept of the average consumer in the UCPD

This article investigates the links of the average consumer concept in secondary legislation and the Court’s case law, using doctrinal and empirical methods. It addresses five research questions: How is the average consumer test conceptualised? How does the CJEU test the average consumer? How is the average consumer characterized? Who decides who the average consumer is (institutional dimension?) Is the ‘average consumer’ in the UCPD case law the same ‘average consumer’ as elsewhere? To answer these questions, we first illustrate the relationship of the average consumer benchmark in secondary legislation to the Court’s case law. We show that out of all secondary legislation which explicitly uses the “average consumer” in its wording, jurisprudence has only dealt with the UCPD. We acknowledge that a large bulk of jurisprudence concerns the average consumer test in primary law or has been applied to interpret secondary legislation which does not make explicit reference to the consumer benchmark. However, we limit our analysis to cases where this clear link between the wording of secondary law and the Court’s jurisprudence exists, leaving aside the cases where the CJEU interpreted secondary legislation in light of primary law or primary law directly. Consequently, we investigate only the cases where the Court has operationalised the “average consumer” benchmark of the UCPD. Lastly, we summarize and analyse our findings.