Il consumatore medio, il mercato e i formanti

The essay, faced with a greater fragility of the consumer than in the past, caused by a refinement of marketing techniques, deals with the topic of the average consumer in the regulatory segment of unfair commercial practices. It refers to the judgement of the European Court of Justice on the Compass case and other recent decisions on the European law towards the competitive regulation of the market: the parameter does not protect individual cognitive distortion, that would alter the balance between freedom of enterprise and consumer protection. Nevertheless, over time, European law could propose a review of the balance between market regulation and consumer protection, with the consequence of giving greater importance to the individual than to the category to which he belongs. The digital evolution of the market does not change the identification of the parameter in someone who is normally informed and reasonably attentive and circumspect, but it’s not excluded that in judicial review there is room for limited rationality, if it emerges from an assessment by the interpreter about the typical reaction of the consumer to the circumstances of the specific commercial practice. However, use of the notorious fact in this assessment conceals the risk of interpretative subjectivism, which is led on by lack of determination of more specific criteria to limit judicial review.