Introduction

Protecting Vulnerable Consumers in the Digital Single Market

“…66 This has 'important consequences for the level of protection offered to consumers and for the degree to which intervention in the market is possible.' 67 The concept imported into EU consumer law was originally designed to articulate a free movement of goods doctrine 68 to foster the internal market. It protects a consumer that resembles the 'homo economicus' posited under the neoclassical rational-choice theory 69 and is focussed on consumer self-reliance.…”

The Responsible Consumer in the Digital Age: On the Conceptual Shift from ‘Average’ to ‘Responsible’ Consumer and the Inadequacy of the ‘Information Paradigm’ in Consumer Financial Protection

“…25 Without adequately considering the background of the consumers and targeting a ' one size fits all' type of solution, the CJEU expects consumers to be careful and rational decision makers. 26 In abstracto, there is no problem with the CJEU's standpoint, as consumers should bear some of the burden of their own protection. However, in concreto, it ignores all the bulk of consumer behavior studies revealing that people often make mistakes, in a predictable manner, and do not always engage in a conscious decision-making process by weighing advantages and disadvantages.…”

“…27 What most of the studies have in common is pointing out that availability of information does not automatically mean that consumers will perceive and comprehend information in an accurate manner. 28 When it comes to the financial sector, 29 considering the complexity of financial products and services as well as the multitude of choices there are simply too many additional influential factors in place that the concept of ' average consumer' (as developed by the Court) fails to consider. These include information overload, cognitive biases, decision making flaws, cultural and linguistic differences.…”

“…31 At the same time, CJEU's case law reveals a tendency to prefer consumer's access to information over general prohibitions of certain types of trade practices. 32 In other words, a certain degree of trickery might be tolerated, as the average consumer is not expected to be misled easily. 33 In the Court's view an average consumer is not naïve and does not draw conclusions lightly on the basis of advertising slogans.…”

“…57 His position is also confirmed by the fact that the UCPD did not require Member States to provide individual remedies to consumers and appeared to focus more on protection of presumed collective interests of consumers. 58 Only by rejecting any potential differences between individuals, which might have justified case by case solutions, was the UCPD able to create and promote its ' one size fits all' standard of average consumer.…”