Legal Literature

Unfair Commercial Practices Directive, Chapter 1, Article 2, (a) Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b)

This article discusses the notion of the average consumer and how this concept should be applied in practice. The author discusses case law in Belgium but also refers to some decisions of the European Courts.

In conclusion, the author states that the national judge must study the circumstances of the case and, based on its own appreciation, must decide whether the average consumer, who is normally informed and attentive as to the advertising in question, could be misled by the trader's practices.

To decide as such, the national judge must equally take into account relevant social, cultural and linguistic factors. In case this assessment would not allow the judge to issue an opinion, he can also appeal to statistics or make use of an expertise or a survey, this in order to verify whether a sufficiently big number of consumers would be susceptible to being misled by the trader's practices.