European Union (EU) consumer law is rather one-size-fits-all, meaning that it largely disregards differences between consumers and their protection needs. Consequently, there is underprotection, which can not only harm the internal market but is also at odds with the EU’s commitment to ensuring a high level of consumer protection. To be able to propose directions for improving the differentiation between consumers in EU consumer law, this paper answers the question of how the differentiation between consumers is currently operationalised and how that results in underprotection. Building on, among others, Black’s regulatory theory of the nature of legal rules, it is argued that a legal rule’s level of differentiation depends on how accurately its application conditions predict the situations in which it should apply, considering its aim. Through the application of this theoretical framework, it is argued that it is not just EU consumer law’s status-based application conditions that disregard individual differences between consumers. EU consumer law’s fact-based and norm-based application conditions also do not prevent the status-based application conditions from paving the way for underprotection. In support of this argument, several bottlenecks regarding the differentiation between consumers are identified, including the use of the average consumer benchmark, the emphasis on situational fact-based application conditions, and the rather limited role of norm-based application conditions. Altogether, these findings provide several directions for improving the differentiation between consumers in EU consumer law.
