EU Consumer Protection and Behavioural Sciences

In this chapter, we review the behavioural critique of EU consumer legislation and focus is on how behavioural insights are being incorporated or could realistically be incorporated in existing or new rules. Behavioural scholars sometimes present EU consumer law as archaic and counter-productive and this creates a diffuse view that a behavioural turn would constitute a revolution for EU consumer law. We do not subscribe to this view. We begin by putting the current legitimacy crisis of EU consumer law in perspective. Specifically, we explain why EU law evolved to be an apparent anti-model of behavioural regulation and discuss whether the internal market constraints that still exist prevent a behavioural turn. We conclude that they do not. We illustrate this claim in relation to disclosure mandates. The central feature of disclosure mandates in EU consumer law has been severely criticised in the light of behavioural findings. We agree that they are over-used but find that disclosure mandates, as a technique, can still serve a useful purpose and suggest how their use can be streamlined. We also point out that recent developments tend to make disclosures smarter and point to directions to pursue this evolution. Finally, we turn to the core message of behavioural insights to policy makers: ‘make it simple’ and analyse how it has been received in EU consumer law beyond the specific issue of disclosure. We find evidence of an intention to simplify which predates the current commitment of the Commission to make simplification a priority, but highlight that efforts to simplify have led to half-baked solutions that are not simple enough. We conclude that EU consumer law does not need a revolution but a continued reform and that it contains the seeds of a more behavioural approach.