Empirical Evidence in Consumer Law Cases: What are 'Up To' Claims Up To?

22 Pages Posted: 9 Jun 2015 Last revised: 10 Jun 2015

See all articles by Joasia Luzak

Joasia Luzak

University of Exeter - School of Law; University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: June 9, 2015

Abstract

In this contribution I argue that in certain consumer law cases providing empirical evidence is necessary and that specific standards of proof should then apply. Only through analysing evidence of actual consumer behaviour as well as of trader’s commercial practices courts and enforcement authorities may guarantee strong consumer protection. However, due to the lack of standardisation and a rather blithe judicial and regulatory approach in testing the submitted empirical evidence, currently, there is a significant uncertainty as to what courts would and should recognize as sufficient and reliable empirical evidence. I illustrate this thesis through the analysis of a specific type of unfair commercial practices, namely, so-called “up to” claims, and their perusal in the Dutch legal practice. The examined case law clearly demonstrates the need for the introduction of a specific standard of proof for substantiating advertising claims, specifically “up to” claims. Moreover, it indicates that more attention should be paid to consumers’ actual beliefs not only in legal scholarship but also in legal practice. This could, of course, occur on the national level, but in order to further harmonize and strengthen consumer protection in Europe, the European institutions would be best positioned to change this enforcement policy.

Keywords: unfair commercial practices, misleading advertising, consumer protection, standard of proof, consumer behaviour, empirical legal research, comparative law

JEL Classification: K12

Suggested Citation

Luzak, Joanna Aleksandra, Empirical Evidence in Consumer Law Cases: What are 'Up To' Claims Up To? (June 9, 2015). Amsterdam Law School Research Paper No. 2015-20; Centre for the Study of European Contract Law Working Paper Series No. 2015-07. Available at SSRN: https://ssrn.com/abstract=2616188 or http://dx.doi.org/10.2139/ssrn.2616188

Joanna Aleksandra Luzak (Contact Author)

University of Exeter - School of Law ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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