In medio virtus? In favour of the objective case-law test of the ‘average consumer’ for the review of the transparency of non-negotiated terms

Abstract

From its very inception in case law, in 2013 and 2014, the control of transparency of non-negotiated terms has been shaped in an abstract and objective manner. Whereas the Court of Justice of the European Union (CJEU) has not abandoned this parameter, based on the “average consumer” and not on the consent of the specific contracting party, the Spanish Supreme Court (TS or “Tribunal Supremo”), in recent years, has denied protection through this test to “persons with expert knowledge” in a specific type of contract (frequently mortgage loans), as has occurred with certain employees of financial institutions and specialised lawyers. This essay examines the origin of the notion of “average consumer” and its transplant to scope of the Unfair Contract Terms Directive, traces the various stages, trends and divergences in the case law of the CJEU and the TS and offers new arguments on the convenience of maintaining the objective standard in this field, in line with the transversal construction of the concept in various consumer protection directives that the CJEU is recently upholding. Furthermore, in the light of the conclusions presented in 2024 by the Advocates General of the CJEU in two important pending cases (C-450/22, Caixabank et al., and C-646/22, Compass Banca), this contribution analyses whether the notion of the average, rational and proactive consumer could be modulated by theories of socio-economic analysis of human behaviour to integrate certain vulnerabilities into the average standard.