European consumer protection through the behavorial lens

In this Article, we identify whether and how European Union consumer protection rules could incorporate more behavioral wisdom. The relevance of behavioral insights to consumer rights is obvious, as consumer protection rules tend to ignore how boundedly rational consumers can be when they make their decisions. The rules are all too often written with a fictional consumer in mind: one who reads labels and checks the terms and conditions. Though the relevance of behavioral insights to consumer protection is universal, the European context exhibits specific features. In Europe, paternalism is rarely seen as a matter of principle. The debate is therefore not whether a behavioral approach can offer minimalist regulatory approaches preserving freedom of choice, or whether it provides evidence that is robust and general enough to justify paternalistic interventions; rather, it is whether and how a more behavioral approach can make EU law more effective and European consumers better off. The focus in this Article is precisely on how behavioral insights are being incorporated and could be incorporated. The question is important since EU consumer law has evolved into an apparent anti-model of behavioral regulation, featuring a muchcriticized load of mandatory information requirements. The internal market constraints that still exist should not, however, be analyzed as preventing a behavioral turn. The question is also timely, since new rules are in preparation at the EU level in the field of consumer protection. Can the EU legislature take useful inspiration from the insights developed in behavioral sciences? Various dimensions are studied. First, disclosure mandates are a central feature of EU consumer law that has been severely criticized in light of behavioral findings. Though disclosure mandates are over-used, they can still serve a useful purpose, provided their use is adequately streamlined and enhanced