Tourism Law in Europe

15 for the consumer to correctly decode his legal position and the implications of the respective roles and obligations of the performance debtor and the intermediary platform. Regarding the validity of intermediary reservations, a central feature of the two judgments is that an assessment of the consumer as the agreement reader is included. As a result, notions about the qualities a composite consumer ‘figure’ might possess substantially affect the demands that can be made upon the consumer when contracting with a trader. 54 In EU law, a concept of the consumer denoted as “the average consumer” has been developed, and this concept has been applied in cases such as Gut Springenheide . 55 Accordingly, the average consumer is defined as a reasonably well- informed and reasonably observant and circumspect consumer—an assessment reached without ordering an expert report or commissioning a consumer research poll. 56 Thus this far, the precise meaning of the concept has not been outlined by the European Court of Justice, but it objectifies the notion of the average consumer. Consequently, it can be argued that the average consumer currently exists as a legal fiction. The literature has suggested using alternate terms such as the normal consumer or the typical consumer. Questions persist though, as to whether such alternative conceptual formulations are based on a corresponding legal fiction. 57 For now, in any case, we must acknowledge the issue but place it beyond the scope of this article. Concerning the functional delimitation of consumer agreements, various consumer characteristics have been posited to be contrasted with those of the trader: - the relatively low degree of professionalisation, - the relatively modest economic strength, - the lack of economies of scale, and 54 In the judgment published in the Danish Weekly Law Reports U.2018.1374 S, the principle was established that between two professional parties there is no enhanced requirement to conclude an agent disclaimer. 55 Case C-210/96 Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung (1998) and references to case law in paragraph 30. See for instance C- 126/91 (Yves Rocher) and C-315/92 (Clinique). 56 Ibid, paragraph 31. 57 Ibid with references.