Homo Economicus, Behavioural Sciences, and Economic Regulation : On the Concept of Man in Internal Market Regulation and Its Normative Basis

In the following paper we investigate how EU law conceptualizes the individual to whom internal market regulation is addressed. To this end, we take as an analytical point of departure a stylized information paradigm, whereby for reasons of internal market benefits, market players have to bear the burden of perceiving and processing information that is relevant in respect of an intended transaction, as well as disadvantages should they be ill-equipped to cope with this assignment. We will show that although it implemented the normative concept of a well-informed, observant and circumspect consumer, the ECJ never adopted such a stylized information paradigm. Moreover, we illustrate through various examples how the EU legislature assists market players in perceiving and processing information, and even seeks to steer their decision-making process. We reconsider whether or to what extent this should be understood as an advancement of an information paradigm or rather as a “behavioural turn.” We argue that only a differentiated approach that balances the internal market rationale with potentially conflicting rights meets the exigencies of EU law