Private Law Theory

ABSTRACT
The article explores how national courts interpret the EU average consumer standard and the accompanying concept of ‘particularly vulnerable’ consumers (within the meaning of the Unfair Commercial Practices Directive). It summarises the key findings of a team of national reporters who reviewed case law across 19 jurisdictions, including EU Member States and neighbouring countries such as the UK, Switzerland, Türkiye, and Serbia, and compares those findings with the relevant EU case law. Three main findings stand out. First, national interpretations of the average consumer standard are broadly aligned with EU case law. Courts articulate the average consumer’s common sense in relation to market mechanisms or specific product groups. Second, there are two notable exceptions. The first concerns national courts decreasing or depriving consumers of legal protection because of some characteristics that set certain consumers apart from the ordinary consumer, such as purchasing luxury goods or sophisticated financial products. We refer to this divergence from EU law as the ‘above-average’ exception. The second deviation concerns the level of effort expected of the average consumer when reading the fine print. In this regard, national courts often adopt a higher standard of protection than expressed in ECJ case law. The third main finding concerns vulnerability. The concept is rarely used at the national level. Instead, courts tend to apply a targeted average consumer standard and relate circumstances that call for protection under the general notion of consumer weakness. To compare national and EU case law, we restated EU jurisprudence on the average consumer using categories that emerged from our review of national decision. As a result, this contribution also offers an original account of the EU case law on the average consumer, as it synthetises assumptions the court makes about what the average consumer is expected to know, their abilities, and the level of effort required of them. We highlight the potential of “effort” as a non-technical gateway for incorporating behavioural insights into existing case law on consumer protection. This introduction is part of a special issue that also includes six additional contributions presenting national findings in regional clusters.

Esposito, Fabrizio and Grochowski, Mateusz and Piron, Alexandre P and Sibony, Anne-Lise, The National Lives of EU Consumer Standards: How Courts Develop the Average and Particularly Vulnerable Consumer and Create the Above-Average Consumer (December 10, 2025).