The Abuse of the "Confident Consumer" as a Justification for EC Consumer Law

A reference to the need to create confident cross-border consumers who can contribute to the strengthening of the internal market has often been used as one of the main arguments for EC consumer policy and legislation. The argument has been presented in order to justify both the creation of a minimum safety net for consumers (the minimum confidence argument) and the current turn towards more total harmonisation of consumer protection (the harmonised confidence argument). In the paper these lines of argument are critically evaluated with reference to common sense knowledge about the behaviour of consumers as well as on the basis of Eurobarometer data concerning consumer confidence. In this light the substantive minimum harmonisation measures which have been justified with reference to the need for promoting consumer confidence seem only to a limited extent relevant with respect to the creation of such confidence. The current turn towards total harmonisation most certainly cannot be justified in this way. Other substantive measures, facilitating the access to a counterparty, would be more important in order to create consumer confidence in cross-border shopping, but the Community has almost systematically avoided adopting such measures.