Assessing the EU Digital Fairness Act and Its Promise of Consumer Protection

This morning, the European Commission published its long-awaited proposal for the Digital Fairness Act (DFA), a major initiative to update the European Union’s consumer protection framework for an increasingly digital economy. The proposal seeks to address unfair commercial practices that exploit consumers through manipulative online interfaces and addictive design features and other forms of digital commercial conduct.

This proposal translates many valuable ideas into legal language, but questions remain about its scope, coherence and capacity to deliver effective protection.

In this commentary, we look at five central aspects of the proposal, including its title and scope, the move from a directive to a regulation supported by delegated acts, the prohibition of dark patterns, the regulation of addictive design features, and the new rules regarding enforcement. We identify significant advances, but also areas where the legislative text requires clarification or substantive improvement.

The coming weeks will be an opportunity to carefully consider additional aspects, such as respect for the principle of technological neutrality and whether the proposal can deliver a high level of consumer protection in relation, for example, to AI agents and price personalization.

The title and scope of the regulation

The title is a misnomer. For years, the EU has promised to confront the business models and design practices that exploit consumers in digital markets. The title Digital Fairness Act reflects that agenda, but understates the scope of the proposal: the DFA is not about digital services only. If adopted, the proposal would repeal the Unfair Commercial Practices Directive (UCPD) and replace it with a regulation governing B2C commercial practices, both online and offline. A more accurate title would be Unfair Commercial Practices Regulation.

Leveraging the expressive function of the law does not justify starting a tradition of misnamed legislative instruments. The Digital Services Act (DSA), for example, does not cover all digital services. Similarly, the DFA obscures unfair practices that happen in real life. There is little justification for presenting a reform of consumer law with such broad implications as exclusively concerned with digital markets. The politically important phrase ‘digital fairness’ gives the title to Chapter III, the proposal’s most innovative part. Additional emphasis, if deemed useful, could be given in the recitals.

From a directive to a regulation supported by delegated acts

A regulation is directly applicable. It may reduce interpretative fragmentation and facilitate stronger cross-border enforcement, particularly if accompanied by the proposed reform of the Consumer Protection Cooperation Regulation. The draft consolidates interpretations of the UCPD that have emerged over the years, for example, clarifying that continuing to use a service constitutes a ‘transactional decision’ (Article 3(3)). Another example is the recognition that vulnerability is not a matter of categories (age, disability) but can result from personal circumstances (Article 5(3)).

These clarifications matter because they translate developments in the interpretation and application of consumer law into a more accessible and consistent legislative framework.

The choice of giving the Commission updating powers through delegated acts is welcome. In Back to the Future-Proof, we already advocated such a mechanism. However, the scope of this power forgets what happens in real life. The Commission should have the power to update the whole blacklist, not just the section on digital practices. Moving this delegation from Articles 10 and 17 to Article 5 would ensure that the UCPR is future-proofed in a technology-neutral manner.

The prohibition of dark patterns

Article 10 of the proposal prohibits dark patterns, giving legislative recognition to a concern raised for years. This is welcome. The widespread use of manipulative design online has made it increasingly important to clarify how consumer law applies to these practices and to make those rules easier to enforce.

The case for a standalone prohibition is less clear.

Article 5 qualifies violations of Article 10 as unfair commercial practices. Article 10(1), just like Article 25(1) DSA, provides less guidance than Articles 5-9 UCPD/DFA. In our systematic literature review, we identified 42 dark pattern types and showed that they all fall within existing UCPD categories (misleading actions, omissions and aggressive practices or the general prohibition). The problem was never that consumer law did not prohibit dark patterns or lacked the fashionable expression “dark patterns”. It was whether its established concepts could lead to effective enforcement against the widespread use of unfair commercial practices online. That was and still is the goal.

The relationship with the DSA remains troubling. Article 25(2) DSA already excludes practices covered by the UCPD or the GDPR. In our earlier work, we argued that this provision reverses the ordinary logic of general and special legislation: rather than refining consumer-law protection, the sector-specific DSA rule risks ceasing to apply whenever consumer law can be invoked. The draft does not repeal Article 25(2) DSA as many had hoped. Instead, in a masterful act of make-believe, Recital 52 declares that the DSA prohibition does not apply to dark patterns covered by the DFA, which ‘relate exclusively to business-to-consumer commercial practices’. One small problem: the DSA prohibition also covers business-to-consumer commercial practices occurring within online interfaces. Thus, the circumstances in which Article 25(1) DSA remains applicable are still an elusive mystery.

The regulation of addictive design

Article 17 of the proposal breaks new ground by recognizing features that are intended, or can reasonably be foreseen, to encourage compulsive or excessive use. It lists uninterrupted consumption without breaks and autoplay, engagement-triggering notifications, rewards and penalties for returning, and simulated interpersonal relationships. This is an important clarification: such problematic practices could not be disciplined well only by the elusive notion of undue influence.

However, the proposed regulatory response falls short of the problem it identifies. Rather than prohibiting addictive configurations for adults, Article 17 requires tools that let consumers switch them off. The Commission is not asking to remove the problematic features: the consumer must choose to disable them. This approach sits uneasily with Recital 67, which recognizes that addictive design exploits consumers’ cognitive and psychological vulnerabilities.

The Regulation acknowledges those vulnerabilities while relying on consumers to recognize and counteract their exploitation. It is easy to imagine that traders would make the opted-out version so cumbersome that consumers will choose to remain with the addictive design. Moreover, consumers have been using these addictive features for years and have grown accustomed to them to exercise self-control and opt out of them. The right to opt out is too weak a response in the face of many years of harmful exposure. It is not even complemented by a risk to inform about the risks associated with these problematic features.

The proposed EU KIDS Act makes the difference in regulatory approaches more visible. For certain services used by minors, it envisages stronger safety-by-design restrictions (KIDS ACT, Chapter III). This divergence in treatment will require strict scrutiny through the legislative process.

Strengthened public powers, but what about effective remedies?

Perhaps the most important innovation is found in Article 30: the Commission will have direct enforcement powers for infringements in the EU. Most likely, DG JUST will join the club of DGs with enforcement powers. The Commission's extensive experience in interpreting the UCPD and the Unfair Contract Terms Directive (UCTD), reflected in its detailed guidance notices, provides a strong foundation for exercising these new enforcement powers.

However, penalties and consumer compensation remain a weakness. Stronger enforcement powers by the Commission will achieve little without sufficiently deterrent penalties and effective consumer remedies. Leaving Member States to define the amount of fines on their own seems undesirable, as this New Mexico-Italy comparison shows.

In the New Mexico litigation against Meta, a state with 2.1 million inhabitants secured a $ 25 billion judgment against the company. The court calculated a potential penalty of approximately $219.5 billion by applying the statutory maximum of $5,000 to each of the violations found by the jury. It subsequently reduced the award to $25 billion.

It did so with the functional equivalent of the UCPD. How? One such statement led to a 10 million EUR fine in Italy under the UCPD. The contrast shows how important dissuasive sanctions are. Old legal principles can be powerful when backed by evidence, institutional resolve and effective remedies.

At the same time, private enforcement needs more. It is relatively easy to find a commercial practice unfair, much less so to prove the damage consumers suffered. Thus, Article 34 should be reworded to grant explicit evidentiary support also concerning the harm caused by the relevant commercial practice. Moreover, as FIDMA argues, indemnities based on a percentage of the price, or at least a fixed amount, which are common in EU passenger regulations, or other benchmarks (e.g., turnover) are crucial to make consumer rights effective in most cases of mass harm.

The DFA is an important opportunity to strengthen the EU’s response to unfair commercial practices. It remains to be seen whether the Parliament will be able to amend the text as needed.

The European Commission’s impact assessment accompanying the DFA proposal cites several academic publications by the authors of this article.