Case C-646/22 compass banca: Consumer rationality and cognitive biases: A cautious update of the average consumer benchmark

In Compass Banca, the CJEU was asked by the referring Italian court if the concept of the average consumer should extend beyond the traditional notion of homo economicus in light of growing awareness of bounded rationality and the risk of cognitive influence in modern market dynamics. The case was eagerly awaited amid increasingly scholarly criticism of the average consumer concept, particularly in digital contexts, where the model of a rational, informed decision-maker would often fail to account for power imbalances embedded in digital architectures. Whereas the court did not fundamentally alter the benchmark, it added a cautious clarification, acknowledging that cognitive biases may constitute one of many constraints impairing the average consumer’s decision-making capacity. However, the influence of cognitive biases alone on the decision-making capacity would be insufficient to render a commercial practice unfair unless it is ‘duly established’ that ‘in the particular circumstances of a specific situation’, the average consumer’s behaviour has been materially distorted.