The notion of identity

While the consumer concept is comparably well-studied in legal scholarship (Mak, 2018; Reich, 2018), the same cannot be said about the notion of identity. This does not mean that identities and law remain detached from one another. Before addressing their connection, a terminological clarification is in order.

The notion of identity is extensively explored in social sciences. Scholars coming from various disciplines – such as sociology or psychology – may conceptualize identities differently. Still, as Vignoles, Schwartz and Luyckx (2011) submit, at the most basic level, identity involves people’s responses to the question “Who are you?”. More specifically, the authors posit, various characteristics, beliefs and roles become part of one’s identity to the extent they are “infused with personal and social meaning”, i.e. they are being used to answer the abovementioned question. In other words, the notion of identity encompasses the self-definition of individuals and groups as well as recognition from the others.

A further useful distinction emerging from identity research concerns “identity contents” (Sedikides & Brewer, 2001; Vignoles, Schwartz and Luyckx, 2011). In this regard a rough line can be drawn between: 

• individual identities (e.g. personal goals and values),
• relational identities (e.g. consumer, spouse, co-worker),
• collective identities (e.g. ethnicity, nationality, gender),
• material identities (e.g. possessions).

As is apparent from this brief discussion, the relational identity of the consumer seems to be central to consumer law. However, as the identity scholarship also teaches us, different aspects of an identity can and do coexist and may assume different importance in various social contexts. The very same person may thus identify as a consumer, a parent, a woman, a member of a climate movement, a citizen, a resident, etc. The relational identity as a consumer can also intersect with the notion of class and with class identities. Does consumer law address consumer relational identity in general, or does it focus on a more specific image of consumer? If the latter is true, what is the relevance of the different identity contents to the construction of that image? 

The identity of an ‘average consumer’

The image of consumer, which is most prominent in EU law, is that of the average consumer who is reasonably well-informed and reasonably observant and circumspect. Whether or not that concept can be framed in language of identities depends on our reading of its function. Firstly, the concept can be understood as a mediator between the interests of the traders, on the one hand, and the consumers, on the other. On that reading, it is nothing more than an analytical instrument, a legal fiction used to define the scope of mandated and prohibited practices. The second possible application of the average consumer concept is more aspirational: it describes the ideal of a person that the EU lawmaker would like consumers to become. This is where the notion of identity assumes particular relevance.

While the second application of the average consumer notion may to some seem far-fetched, the unique features of EU law and policy lend it significant support. Most notably, it aligns well with the instrumentalist rationality of EU (private) law, namely its orientation towards external goals (Michaels, 2011). The most important of such ends, to which also consumer law is subject, has been the proper functioning of the internal market. Since the properly functioning market has primarily been understood as a growing market (Hesselink, 2016), the achievement of that goal also required a particular idea of consumer: that of a confident cross-border shopper, whose purchasing decisions can fuel economic growth.

However, this consumer identity envisaged by the EU law is coming under pressure. Firstly, the normative consumer model is increasingly perceived as problematic, as it fails to capture real-life behaviour (Incardona and Poncibò, 2007; Sibony and Helleringer, 2015). The alternative notion of “vulnerable consumer” is similarly viewed as insufficient (Helberger et al., 2021). Such reactions – often voiced in relation to digital markets – suggest that consumers may not, in fact, want to embrace the identities that lawmakers devised for them. They want to be protected as they are.

The second, and arguably more pressing, challenge concerns the contribution of consumption to the climate crisis. Accordingly, legislative actions are currently underway to make consumer law more “green”. Promotion of sustainable consumption is mentioned as one of the solutions (Mak and Terryn, 2020). However, as was said, for quite some time the EU law promoted a rather different image of consumer. Could these past narratives hamper the shift towards sustainable consumption?

Historical and comparative perspectives

As the pressure described above builds up, EU consumer law may be in need of reinventing itself. Could inspiration for a different framework be drawn from national law and scholarship? For example, could law pay more attention to the identities that consumers already have, and how they are linked to vulnerability, on the one hand, and sustainable consumption, on the other?

The fact that national consumer laws have not followed the instrumentalist rationality of market growth could mean that they are not as interested in constructing consumer identities and instead more receptive to the existing ones. An interesting example, discussed at length during the Consumer ID kick-off meeting, is the landmark Bürgschaft judgment of the German Constitutional Court (BVerfGE 89, 214). The case concerned the practice of guaranteeing mortgages by the creditors’ family members, who happened to be women. The Court acknowledged that the validity of such guarantees can be challenged in certain circumstances. It can be argued that, in doing so, the Court implicitly acknowledged that gender and relational identities could exacerbate the vulnerability of the guarantor. At the same time, the Court distinguished the situation of a daughter who vouched for her father’s business from the situation of a wife who guaranteed consumer credit granted to her husband. Protection was granted only to the former, with the argument that the financial burden was in that case exceptionally high and unforeseeable. While the argument is certainly plausible, the Court appears to have prioritized the interest of consumer groups that generally have access to more capital. 

The Bürgschaft case could serve as a reminder that not only the law can seek to influence identities, but also the identity – and class – dynamics can have an impact on the law. In my work I will consider this problem in more detail, drawing on examples from Germany and Poland.

As Davies (2018) puts it, to “deny the need for [an] integrated policy [between the social and the economic] is to see the Union as a break with the achievements of its states, as a market which should not be social”. My project critically reflects on those achievements to see if they can show the way  – towards a more holistic, differentiated vision of consumer law – or perhaps be the source of other useful lessons.