Island or Ocean: Empirical Evidence on the Average Consumer Concept in the UCPD

This article investigates the codification of the average consumer concept in secondary legislation and its interpretation in the Court of Justice of the European Union(CJEU)’s case law, using doctrinal and empirical methods. We first identify all secondary legislation explicitly using the ‘average consumer’ in its wording and respective case law. We show that only the Unfair Commercial Practices Directive (UCPD) developed significant case law and conducted a software supported systematic qualitative analysis of all UCPD average consumer case law to address five research questions: How is the average consumer test applied? 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? The results show that the ‘average consumer’ concept performs a distinct function in UCPD adjudication and has matured to a selfreferential ‘average consumer’ interpretation isolated from case law rendered in other areas. We argue that when the ‘average consumer’ serves as a constitutive feature in order to define what constitutes a misleading practice, a stronger mandate for the CJEU to interpret the concept can be warranted