The Consumer Benchmark, Vulnerability, and the Contract Terms Transparency: A Plea for Reconsideration

Abstract

Transparency counts amid the most typical and inherent elements of the current consumer protection toolbox in EU law. For a long time, the exact premises of this requirement have been understood in a standardized way, taking the concept of an average consumer as the benchmark. The case of 93/13/EEC Directive (UCTD) is particularly striking in this regard. The necessary connection between the average consumer and transparency comes almost without saying in both the CJEU case law, and in the scholarship provisions on the UCTD. However, Articles 4(2) and 5 of the UCTD merely refer to a consumer. The focus on the average consumer therefore reduces the scope of application suggested by the plain meaning of these provisions. The article takes a critical stance towards the communis opinio that there is a necessary connection between the average consumer and transparency in the UCTD. Relying on both legal and economic reasons, the paper supports a twofold claim: (1) The system of EU law requires, sometimes, to assess the transparency of a term from the perspective of vulnerable consumers. (2) This more demanding standard shall be used when the average consumers operating on the market do not offer herd protection to the vulnerable consumers. The article shows that the communis opinio rests on a faulty assumption, namely that vulnerable consumers are protected when core terms are transparent for the average consumer. The article shows that this is not the case under common circumstances. Demanding core terms to be transparent for the vulnerable consumer in those circumstances contributes to reaching a high level of consumer protection.

Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, De Gruyter. It is freely accessible on the basis of a licence with an OA-option funded by the MPG, Max-Planck-Gesellschaft.

Keywords: contract, consumer, average consumer, vulnerable consumer, transparency, theory of harm

JEL Classification: K10, K12, K19