Empirical evidence in consumer law cases: what are "up to" claims up to?
Empirical evidence can provide us with the useful knowledge as to how things work and how people behave in practice. This knowledge is obtained through means of observation and experimentation. On the one hand, it would seem that in consumer law cases empirical evidence should play a major role in the decision-making of courts and other enforcement authorities since it would illuminate the particularities of a given case. On the other hand, the use of empirical evidence in consumer law cases may also have drawbacks. To account for all circumstances the court or enforcement authority would need to commission various empirical tests, delaying the dispute resolution and increasing its costs. Additionally, the data gathered through empirical tests is not always straightforward and not always easy to interpret and apply. This could explain why courts and other enforcement authorities might seem somewhat reluctant to request empirical evidence from the parties or even experts.
This version published as working paper on SSRN as http://ssrn.com/abstract=2616188. Final version published as chapter in Schulze R, Heiderhoff B (eds) Verbraucherrecht und Verbraucherverhalten, Nomos, 2016. (Europäisches Privatrecht; 44) ISBN 978-3-8487-2722-3