The Proper Place of Behavioural Insights in UCPD Enforcement and Reform

This presentation examines the integration of behavioural insights (BIs) into the enforcement and reform of the Unfair Commercial Practices Directive (UCPD). It addresses two questions: where behavioural insights belong within UCPD interpretation, and how they can be effectively incorporated through legal mechanisms. The first section examines possible loci for incorporating behavioural insights (where do they fit?). It considers the UCPD's core concepts and asks which are best suited to incorporate behavioural insights. It concludes that the behavioural reiterpretation of the average consumer currently underway (after Compass Banca) is an apt choice. By contrast, considering biases as a source of vulnerability appears both difficult and unhelpful. It highlights two under-explored avenues that make legal sense: linking behavioural insights to the assessment of intent of a trader and/or effects of a commercial practice. The second section turns to legal techniques for importing behavioural insights into the suitable loci. It considers behaviourally-informed rules (rulemaking) and several techniques available in the context of litigation: fictions, presumptions and case-specific evidence. It argues that the latter is to be avoided because it could turn against consumers.