The notion of consumer under EU legislation and EU case law: Between the poles of legal certainty and flexibility

The European Commission and the European Union (EU) legislator have steadily intensified their activities in the field of consumer protection to enhance business-to-consumer (B2C) transaction in the EU. This chapter aims to comment on some of these efforts. Unlike most other contributions in the field of EU consumer law it does not dive into an analysis of rights and obligations of businesses and consumers, but discusses one of the preconditions to declare consumer law applicable – the consumer notion. Parties to a contract that might fall under consumer laws surely benefit from understanding whether such legislation applies in the concrete case. This is best exemplified by different mandatory law standards in B2C and non-B2C cases. As this chapter shows, the EU legislator – despite harmonisation efforts – has not (yet) introduced a standardised definition of the consumer notion. Although the Court of Justice of the European Union (ECJ) has repeatedly aimed to align the understandings of the diverse notions, the situation is not yet absolutely settled. From the viewpoint of legal certainty this might create some tension. This tension is intensified by certain special cases that might ask for more interpretative flexibility. In the following we will thus discuss the interplay between the EU consumer notion, EU consumer legislation, EU consumer case law, legal certainty and legal flexibility to evaluate the status quo and to take a brief look into the (possible) future.