Competition law has a large number of standards that serve to protect consumers. These include, in particular, the prohibition of misleading advertising and the commercial acts specifically listed in the Annex pursuant to Section 3 (3) UWG. However, in order to assess whether a consumer protection provision has been breached, the concept of the consumer itself must first be defined in more detail.
The consumer in competition law
The term “consumer” is not defined in the UWG itself. Rather, Section 2 (2) UWG refers to the definition of consumer in Section 13 BGB. Accordingly, a consumer is
any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or profession.
§ 13 BGB
This significantly differentiates the consumer from the trader. This distinction between consumer and trader can be very difficult in individual cases despite the definitions. In practice, problems arise particularly frequently when selling goods on online platforms (e.g. eBay) or with influencer marketing.
The consumer model in competition law
In addition to the specific question of whether a certain person is a “consumer”, it is much more often relevant in competition law how a consumer is classified in abstract terms in competition law. It is therefore a question of the consumer concept. This is because the commercial actions of entrepreneurs are measured against this and ultimately violations of the UWG are determined.
As competition law is largely based on European law, the ECJ has defined the consumer model as the “average consumer who is reasonably well informed and reasonably observant and circumspect”.
Protection of certain consumer target groups in competition law
In target group marketing, where a specific consumer group is addressed, the perspective of an average member of this target group must be applied. Anyone who advertises to a specialist audience can therefore assume that the average consumer is better informed than someone who advertises very widely or even to an audience that does not normally come into contact with the specific product.
Particularly strict requirements and special features for the protection of consumers and minors must be observed for commercial activities aimed at children and young people.
However, the assessment on the basis of particularly vulnerable groups does not only take place if the entrepreneur should focus on these groups in particular in his business activities. It is sufficient if it was reasonably foreseeable for the entrepreneur that this vulnerable group in particular would also feel addressed.
