Behavioural Economics und Lauterkeitsrecht Versuch einer Annäherung

The paper deals with the relevance of behavioural law and economics for the regulation of unfair commercial practices in Germany and Europe. First, as behavioural economics are not a self contained theory but rather a multi-faceted compilation of different research approaches with respect to certain biases of human decisions, those research approaches, which might be of specific relevance for unfair competition law, have to be outlined briefly. Secondly, the case law interpreting the »old« general clause of German unfair competition law is reflected against a behavioural law and economics background. Indeed, some of the former case groups of unfair commercial practices in German case law might almost be interpreted as »field studies« of behavioural economics. Case law thus ideally develops a differentiated case-by-case reaction to real consumer behaviour in an iterative way. However, in certain situations, the older German case law had clearly developed an over-restrictive attitude. In fact, such misguided developments in case law as well as their reasons can also be identified using behavioural law and economics methodology. Thirdly, certain exemplary parts of the recent legal development in European and German unfair competition law are outlined and analysed using behavioural economics methodology. Tangible results can be derived from this: Thus, for an obvious example, the Unfair Commercial Practices Directive rather re-enforces the trend of European consumer protection law to provide for inflexible, and too far reaching information duties, leading to an over-information of the customer. Fourthly, the exemplary analysis allows to clarify the methodological question of which future role behavioural economics can play in unfair competition. Against the background of a legislative framework of unfair competition objectives, behavioural economics should have an accessory function in identifying inconsistencies and erroneous developments within such framework. This can serve as a basis for legislative reform. Moreover, behavioural analysis can help to structure problem-specific legal instruments which react to certain biases of consumer behaviour in a tailor-made way. Such biases can be misused under certain circumstances because of asymmetric information in the market about such effects. This can provoke »unwanted« consumer decisions which are in contradiction with revealed preferences. In the necessary structuring process with regard to possible legal reactions, consumer protection in contract law and consumer protection in unfair competition law have to be regarded in a comprehensive overall perspective. This will have to lead (and indeed has led) to a liberalisation of unfair competition law in all those areas where specific instruments of consumer protection in contract law already satisfactorily deal with certain asymmetries. Research on asymmetric paternalism as the most recent approach in this field should be followed up further. The main function of behavioural law and economics is in the legislative field. With regard to the application of unfair competition law in court practice, empirical behavioural research can only be used in very exceptional cases. Finally, the study of both unfair competition case law and the more recent statutory regulation of unfair competition in Germany and Europe within a behavioural law and economics context leads to the conclusion that under certain conditions (in particular with regard to a balanced enforcement system) a flexible development in case law will render more appropriate results with respect to the regulation of the very dynamic field of unfair commercial practices than any attempt to regulate this field by way of detailed (»straight jacket«) statutory provisions. In fact, within a certain statutory framework, the iterative development in case law can be a very sensitive indicator for existing asymmetries between providers and consumers which can be misused throug