The bounded rationality of the average consumer – commentary on the judgment of the Court of Justice of the European Union of 14 November 2024, C-646/22, Compass Banca SpA v Autorita Garante della Concorrenza e del Mercato

Abstract

The commentary is partly approving and partly critical of the judgment of the Court of Justice of the European Union (CJEU) in case C-646/22, Compass Banca. The focus is on the CJEU’s interpretation of the concept of the “average consumer” in the context of the first preliminary question. The CJEU’s interpretation allows for a change in the current approach to constructing the characteristics of the average consumer model by allowing for the consideration of limitations, including cognitive biases, that influence consumer decision-making. This aspect should be assessed positively. At the same time, reference to the category of limitations affecting consumer decision-making, previously absent from the CJEU’s case law on unfair commercial practices, as well as the CJEU’s failure to clarify how to understand this category, raises interpretative doubts. This aspect should be assessed negatively. This issue is set out in Directive 2005/29 on unfair commercial practices. However, it is also relevant to other areas of law where the model of the average consumer is applied.