Questions and Answers on the Digital Fairness Fitness Check

What is the scope of the Fitness Check?

As part of the Better Regulation agenda , a Fitness Check is a comprehensive evaluation of the extent to which a set of EU laws have contributed to achieve EU policy objectives . This exercise is useful to identify regulatory overlaps, inconsistencies, synergies, digitalisation potential and cumulative impacts. The Better Regulation agenda ensures evidence-based and transparent EU law-making based on the views of those impacted . T he Commission evaluates and improves EU laws on a regular basis , focusing on delivering where it matters the most. The evaluation is carried out by the responsible Commission department in consultation of all relevant services and the Regulatory Scrutiny Board.

This Digital Fairness Fitness Check evaluates three EU consumer law Directives, the Unfair Commercial Practices Directive , the Consumer Rights Directive , and the Unfair Contract Terms Directive . These form the core of the framework of EU consumer protection that most traders and consumer-facing sectors must comply with. For the purposes of this Fitness Check, the Commission uses the concept of ‘digital fairness' to refer to a high level of consumer protection, enshrined in Article 169 TFEU , that should be ensured in the digital environment.

The Fitness Check covers the five key evaluation criteria specified in the Better Regulation guidelines, namely: effectiveness (progress towards achievement of objectives), efficiency (cost-effectiveness and proportionality of costs to benefits, potential for simplification), relevance (to current and emerging needs, fitness for purpose given regulatory and technological developments), coherence (internal and external with other EU or Member States' policies) and EU added-value (the potency to yield results beyond what Member States could achieve alone).

What are some examples of problematic practices?

• Dark patterns are commercial practices deployed through the structure, design or functionalities of digital interfaces or system architecture that can influence consumers to take decisions they would not have taken otherwise. For example, companies could be presenting choices in a non-neutral manner, using fake countdown timers to create urgency or using emotional manipulation to make consumers second-guess their indicated choice. The Commission's 2022 dark patterns study showed that 97% of the most popular websites and apps used by EU consumers deployed at least one dark pattern. The most common ones involved hiding information, creating False hierarchies in choice architectures, repeatedly making the same request and difficult cancellations.

• In the context of the exponential growth of the digital subscription economy and 'freemium' business models, consumers increasingly encounter problems with the renewal and cancellations of their digital contracts . In the Fitness Check consumer survey, 40% of consumers considered that the design of the website or app made cancelling the subscription very difficult and 29% reported often having their free trial automatically extended into a paid subscription.

• As consumers navigate the attention economy, concerns have increased regarding specific interface designs and functionalities that could induce digital addiction . In the Fitness Check consumer survey, 31% of consumers reported spending more time or money than they intended because of specific features such as the autoplay of videos, receiving rewards for continuous use or being penalised for inactivity.

• Specific concerns have also arisen with products such as video games that increasingly involve the sale of virtual items, including gambling-simulating features such as loot boxes , and the use intermediate in-app virtual currencies , which can distort the real value of the transaction for consumers and encourage them to spend more than they intended.

• Commercial practices can be personalised using data about consumers and their preferences. These practices include behavioural advertising, search result ranking, recommendations, prices and many other uses, which can offer many benefits for consumers. However, the 2023 Consumer Conditions Scoreboard found that 70% of consumers are concerned about how their personal data is used and shared . In the Fitness Check consumer survey, 37% of consumers had the impression that a company had knowledge about their vulnerabilities and used it for commercial purposes.

How is this related to other EU digital legislation, such as the Digital Services Act?

The EU recently adopted landmark legislation such as the Digital Services Act , the Digital Markets Act and the Artificial Intelligence Act . These rules are complementary to EU consumer protection law and address several problems that consumers face with regards to risks related to online platforms, including marketplaces, and AI systems. In particular, the Digital Services Act and the Digital Markets Act prohibit dark patterns by regulated entities. The effective implementation of this digital rulebook is a key priority for the Commission and its enforcement continues at full speed.

The Fitness Check assessed the interplay between these rules and EU consumer law, showing that the current digital rulebook does not cover all traders and, therefore, does not address all problematic business-to-consumer commercial practices . Moreover, there has been an increase in the complexity of applying consumer protection rules in the digital area in conjunction with other digital legislation. The Fitness Check points to the need to take further action to ensure a consistent application of EU consumer law and the broader digital rulebook.

How will this influence future action at EU level?