Standards of protection: In search of the 'average consumer' of EU law in the Proposal for a Consumer Rights Directive

In EU free movements regulation, the average consumer is regarded as someone who is ‘reasonably circumspect’ and able to look after his own interests. National legislation aiming at offering a higher degree of protection is often struck down, in this light, as creating unjustified barriers to trade. In contrast, Directives aimed at harmonisation of consumer contract law generally take a very consumer-friendly stance, imposing a higher level of consumer protection than the free movements regulation would allow. The result is a discrepancy in the underlying framework for regulation in the Internal Market and, consequently, uncertainty for businesses and consumers operating in that market. This paper considers whether the review of the consumer acquis, in particular the proposal for a Consumer Rights Directive, should open the way for aligning the ‘average consumer’ notion from the Directives with the benchmark set in EU law in order to ensure greater legal certainty. To that end, it first seeks to identify the position of the standards set by the existing four Directives and the text of the proposal in relation to the ‘reasonably circumspect’ consumer of EU law. Secondly, in order to align the different notions of the ‘average consumer’ in EU law and in the Directives, the paper argues that lessons can be learnt from the example set by the Unfair Commercial Practices Directive. This approach may be characterised as ‘targeted differentiation’