CJEU: on the concept of 'average consumer' in unfair commercial practices
16-10-2025 Print this pageThe concept of ‘average consumer’ does not exclude the possibility that an individual’s decision-making capacity may be impaired by constraints: Reasonably well-informed nature does not exclude the possibility that a commercial practice may materially distort the economic behaviour of the notional consumer. Also not excluded is taking into account the influence of cognitive biases on that average consumer. However, not any risk of a cognitive bias occurring in the context of a commercial practice would necessarily have the effect of materially distorting the behaviour of that notional consumer. A commercial practice of simultaneously proposing to the consumer an offer for a personal loan and an offer for an insurance product not related to that loan does not constitute a commercial practice that is in all circumstances aggressive or unfair. Such a practice, even without a cooling-off period, does not, as such, imply acts of pressure, even if that practice is likely to create a framing bias. Directive 2005/29 must be interpreted as not precluding a national measure which allows a national authority to require that trader to grant the consumer a reasonable cooling-off period between the dates on which the insurance contract and the loan contract are signed. Once it has been established that a commercial practice adopted by a particular trader is ‘aggressive’ or, more generally, ‘unfair’. And unless there are other means less prejudicial to the freedom to conduct a business which are equally effective. Article 24 (3) of Directive 2016/97 must be interpreted as not precluding such a requirement where the commercial practice of framing is regarded as ‘agressive’ or, more generally, as ‘unfair’: That provision does not require national authorities to go beyond what this Directive calls for, but merely requires that if such products and/or services are ‘cross-sold’, the customers also have the possibility to buy them separately. Nor does it preclude those authorities from using their powers under Directive 2005/29 to put an end to an ‘agressive’ or ‘unfair’ commercial practice.
