La nozione di “consumatore medio”

Abstract

The directive 2005/29/CE ≪concerning unfair business-to-consumer commercial practices in the internal market≫ is part of a series of interventions for the construction of the Single Market by hallowing the importance of the consumer’s role in the market dynamics, redefining his position and, consequently, rethinking the traditional relationship between the consumer and his main interlocutor: the company. In delicately balancing the two sides, the legislator makes a crucial legislative choice by placing at the heart of protections not the consumer sic et simpliciter, but the ≪average consumer≫ instead. The introduction of this new figure offers a key to interpret the concept of professional diligence and the classification of tools for the consumer’s protection. With regard to the first point, the reference to the consumer completes the complex combination of general notions which the legislator uses to define professional diligence, as the level of wariness and knowledge the consumer is required is an evaluative variable within the code of conduct laid upon the tradesperson. With regard to the second point, as nothing has been established about the measures attemptable by the consumer in the event of a contract settled following unfair practices, it is up to the interpreter to fill the legal vacuum. This will only be possible by acknowledging the role played by the sensible average consumer and the renewed business/consumer relationship, which will ensure an adequate system of protections. The issue is precisely to identify aspects of compatibility with traditional civil law, and above all to define the compass of average in court. One thus realizes the significance of the parameter at hand as methodologically useful for the systematic drawing-up of the law.