2.3.3. The "foreseeability" requirement

The vulnerable consumer test applies if the practice affects the economic behaviour of a vulnerable group of consumers "in a way which the trader could reasonably be expected to foresee".

This criterion adds an element of proportionality in assessing the effects of a commercial practice on vulnerable consumers and the professional diligence which reasonably can be expected from a trader. It aims at holding traders responsible only if the negative impact of a commercial practice on a category of vulnerable consumers is foreseeable.

This means that traders are not required to do more than is reasonable, both in considering whether the practice would have an unfair impact on any clearly identifiable group of consumers and in taking steps to mitigate such impact.

Some consumers because of their extreme naivety or ignorance may be misled by, or otherwise act irrationally in response to even the most honest commercial practice. There may be, for example, a few consumers who may believe that "Spaghetti Bolognese" are actually made in Bologna or "Yorkshire Pudding" in Yorkshire. Traders, however, will not be held liable for every conceivable interpretation of or action taken in response to their commercial practice by certain consumers.

The aim of the provision is to capture cases of dishonest market practices (e.g. outright frauds or scams) which reach the majority of consumers, but in reality are devised to exploit the weaknesses of certain specific consumer groups.


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