WINE LABELLING 173 preferable to “libertarian paternalism”10. Indeed, on many occasions, consumers themselves have asked to be protected and guided by regulators11. While we could continue to illustrate the many implications of nudging and paternalism, given the scope of this work, we will instead concentrate on the solution followed by the European regulator (i.e. making “information” the focal point of consumer protection). Article 169 of the Treaty on the Functioning of the European Union (TFEU) provides that: “in order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests”. The keywords here are “protection”, “information” and – possibly, to a lesser extent – “organisation”. One could wonder if protection is instrumental to information, or vice-versa; however, the truth is that protection may seem to follow a stricter paternalistic approach, whereas information may act as a stimulus to consumers’ awareness that may ultimately lead the average consumer to be able to protect himself or herself. Notwithstanding, the first problem lies with the definition of “consumer”. Directive 2005/29/EC, for example, states that a consumer is “any natural person who, in commercial practices covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession”, being, in a way, a subjective definition since it takes into account not what a consumer “is”, but what a consumer “is doing”12. 10 The authoritarian paternalism approach assumes that consumers, being unable to behave rationally and to fully understand the implications and effects of their actions, should be prevented by law from making certain choices, see G. DWORKIN, Paternalism, in AA.VV., Paternalism, ed. by Sartorius, Minneapolis, 1983; S. CONLY, Against Autonomy, Cambridge, 2003. Conversely, advocates of libertarian paternalism insist that choices should eventually be left to consumers, although they should be appropriately informed and suggested a preferable choice, see F. DI PORTO & N. RANGONE, Behavioral Sciences in Practice: Lessons for EU Rulemakers, in Nudge and the Law, ed. by Alemanno e Sibony, Oxford – Portland, 2015.; C. A. DUNLOP & C. M. RADAELLI, Overcoming Illusion of Control: how to Nudge and Teach Regulatory Humility, idem; and A-L. SIBONY & G. HELLERINGER, EU Consumer Protection and Behavioral Sciences: Revolution or Reform?, idem. 11 J. ELSTER, Ulysses and the Sirens, Cambridge, 1979, where the author compares consumers to Ulysses in Homer’s Odyssey, asking his sailors to tie him to the mast in order to be able to hear the sirens’ chant without risking drowning in an attempt to follow them. 12 Whereas (18) of the Directive attempts to tackle this problem by suggesting that a dynamic notion of “consumer” should be applied to every specific case (for instance, when a product is aimed at children, the average behaviour of children should be considered); however, a possible problem here may arise whenever a “consumer” is purchasing something for mixed purposes (professional and private). The European Court of Justice (ECJ) (20.1.05, C-406/01) specified that, for consumers, regulations to be applicable, any purposes that differ from personal purposes must be absolutely marginal.
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