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The definition of average consumer has been tested by two major decisions of the European Court of Justice that have an impact on businesses.
Two decisions of the Court of Justice of the European Union (the “CJEU”) of the last two months have both addressed several aspects of EU consumer law, and, in particular, the concept of average consumer. Interestingly, both judgments arose from disputes that concerned vacuum cleaners. Let’s see what EU judges dealt with in court.
The Dyson judgment: can “information overload” mislead consumers?
The Dyson preliminary ruling (case C-632/16) came from a case originally brought to the attention of the CJEU by the Commercial Court of Antwerp, in Belgium, between two hoovers makers, Dyson and BSH.
The most interesting point of the CJEU’s decision is its reflection on the impacts of information about products (provided by the professional) on an “average end-user”. The Court held that
“the mere fact that the labels or the symbols displayed by BSH refer to information already present on the energy label [i.e. the standard template of label provided by the EU Commission Delegated Regulation No 665/2013] cannot suffice to rule out the existence of […] a risk” of deceiving consumers about energy consumption.
Indeed, the symbols used by BSH were not graphically identical to those used on the energy label and “some of the labels or symbols used by BSH repeat the same information while using a distinct graphic for each label, which could give the impression that they convey different information each time”. Hence, the general principle is that professionals should care about the way they give information to consumers, being careful on pictures, labels, and graphics they use, too. We’ll see if the CJEU will transfer such principle beyond the boundaries of mandatory labelling of vacuum cleaners.
Again with vacuum cleaners: what’s the meaning of “business premises”?
In another preliminary ruling, Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH (case C-485/17), the CJEU better defined the scope of the notion of “business premises” according to article 2(9) of the Directive 2011/83/EU (the “Consumer Rights Directive”).
The original case took place in Germany and was between Unimatic, a distribution business selling products at trade fairs, and Verbraucherzentrale Berlin eV, a German consumer organisation. In January 2015, a customer ordered a vacuum cleaner on Unimatic’s stand at the “Green Week” annual trade fair of Berlin. Unimatic did not inform the customer about its right of withdrawal under German law, in accordance with Article 9 of Consumer Rights Directive. The organisation claimed that Unimatic should have informed the customer of the right of withdrawal because the customer had stipulated an off-premises sales agreement. Afterwards, the case was brought to the attention of the German Federal Court, that claimed before the CJEU that the wording of Consumer Rights Directive does not indicate the requirements to delimit the extent to which, in a specific case, the trader carries out its activity on business premises within the meaning of Article 2(9) of the Consumer Rights Directive.
According to the EU judges, such provision must be interpreted as meaning that a stand managed by a trader at a trade fair constitutes “business premises” if, in the light of all the factual circumstances surrounding that activity (e.g. the appearance of the stand, the information relayed on the premises of the fair itself etc.),
“a reasonably well-informed and reasonably observant and circumspect consumer” (in other words, an average consumer in the case at hand) could assume that the trader is carrying out its activity there and will ask her/him in order to enter into an agreement.
Determining if fair stands are “business premises” according to the EU law is a pivotal requirement for the applicability of the provisions on consumer protection. Again, the notion of “average consumer” is an important hermeneutic instrument of the CJEU, but the lack of a unitary position in the different Member States may lead to confusion in the future.
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I am Tommaso Fia, you can contact me at tommaso.fia@dlapiper.com and read the other issues of my Vision iConsumer here.
