„Vidutinio vartotojo“ standartas: pagalba ar papildomas apsunkinimas ginant vartotojų teises?

Abstract

The “average consumer” standard is a concept introduced by the practice of Court of Justice of the European Union, formulated in its cases on the free movement of goods, misleading advertising, as well as analysing questions related to the trade mark protection. That is a hypothetical average of all consumers (or their particular group), on the basis of which the impact of the provided information on economical behaviour of a particular consumer is judged. The Court of Justice defines an “average consumer” as an informed, observant and reasonably circumspect person together providing the flexibility necessary for the application of this concept. Analyzing the contents of the “average consumer” concept, the particular attention in this article is focused on the fact that after the adoption of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, normative definition of the “average consumer” concept was for the first time introduced into the legal act. This fact undoubtedly affected future application of the “average consumer” concept both by the Court of Justice and national courts, especially with regard to the Directive’s total harmonisation character and its extremely broad field of application.