The Unfair Commercial Practices Directive and Vulnerable Consumers

Consumer protection is deeply anchored in EU law, including the Treaty and the Charter of Fundamental Rights. This article discusses the concept of consumer vulnerability and how vulnerable consumers are protected in the context of commercial practices which is fully harmonised by the Unfair Commercial Practices Directive (2005/29). The dual requirement of professional diligence and economic distortion entails that traders may distort the economic
behaviour of the average consumer if the commercial practice comply with requirements of professional diligence. Also, it is legitimate to distort the economic behaviour of consumers ‘below 1 average’ even though the practice does not meet the requirements of professional diligence. The Directive’s adoption of the European Court of Justice’s ‘average consumer’ entails that protection is generally provided only for those who are far from vulnerable. The Directive’s Article 5(3) concerning vulnerable consumers protects only—and to a limited extent—groups who are vulnerable due to mental or physical infirmity, age or credulity. Even though consumers make many good choices, all consumers are vulnerable in certain situations—often due to time constraints,
cognitive limitations, and/or bounded rationality as convincingly demonstrated in behavioural economics. Those consumers who are vulnerable in the light of the Directive are those who are at risk of having their economic behaviour distorted by lawful commercial practices. In the article, the author suggests how the directive’s protection of vulnerable consumers may be improved through
interpretation, revision, and new initiatives. It is not possible to protect all consumers from bad consumption, but welfare loss originating from certain commercial practices may be reduced.