Journal of European Consumer and Market Law

Volume 1 (2012)

Volume 1 (2012) / Issue 3

Bianca Beutel, 'Wahrnehmungsbezogene Erfahrungssätze im Lauterkeitsrecht' (2012) 1 Journal of European Consumer and Market Law, Issue 3, pp. 172–182

Abstract

Empirical principles are abstract logical rules of the general experience of life or specific expertise. They are extremely important for the judicial decision-making process. Empirical principles are especially helpful in finding facts. As part of this, empirical principles gain significance in the judicial praxis with fair trading law. Especially the public’s perception is determined by recruitment of empirical principles. The detection of the public’s perception could also be effected by demoscopic surveys. However demoscopic surveys are very expensive and time-consuming. Because of this demoscopic surveys are an exemption in the judicial praxis. Disputes based on fair trading law depend on a quick remedy. Hence all disputes were normally represented in temporary relief. Empirical principles are an alternative determination method to satisfy these needs. They are a present evidence for detection of unobservable events. Because empirical principles are flexible and revocable, there are several risks of using them. Empirical principles, as rules for an indefinite number of cases, are very close to legal rules. In the absence of a legislative act and a mandatory application they can not be equated with legal rules. Empirical principles help to suggest facts. Unlike legal facts empirical principles cannot be classified in a regional and chronological manner. As a mix between legal facts and legal rules they cannot be definitely classified into the juristic syllogism. In particular, this has a significant effect on the treatment of empirical principles by higher courts. This article shows challenges, risks and benefits of using empirical principles in regard to fair trading law.  

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ISSN: 2364-4710
ID: EuCML2012024