The Consumer Image under EU law: average, rationally bounded, dispositionally vulnerable. What prospects for protection in digital markets?

This article aims to counter and reinterpret the fictional standard of the ‘consumer’ in the law when transposed to the sophistication of digital markets and their underlying technologies. EU policymakers and the legislature have been very active in the regulation of digital markets. However, the resulting legal framework remains permeated with old concepts and paradigms that need to be recalibrated in light of the radical changes brought by digitalization. The traditional and inflexible standard of the ‘average consumer’ who needs a correction in the information asymmetries to rebalance the market relationship has long been criticized, but it shows all its inadequacy and increasingly needs attention in digital markets. Likewise, the concept of consumer vulnerability has become more obsolete than ever. Legal scholars have been active in challenging the status quo, calling for radical changes. The recent debates and recommendations point to a redefinition of the concept of vulnerability as a dispositional or latent status, digital fairness by design and by default, and ex ante regulation. It is argued that these discussions are remarkable but also distant from the reality of the current policy and legal discourse, overly complex, and politically questionable. In light of the last case before the ECJ, a more modest reinterpretation is suggested within the current consumer law regime of the existing standard of the ‘average consumer’ as dispositionally vulnerable with bounded rationality, without degrees of flexibility.