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The high level of consumer protection, enshrined in the EU basic law, is closely connected to the optimal digital system and consequential regulatory framework, in compliance with the legal standards established in EU consumer law. In order to streamline the process, the Commission has launched an open consultation on the forthcoming Digital Fairness Act, DFA and invited all participants and stockholders for a call of evidence on drafting the DFA.
Background
Purpose and scope of the fitness check: the EU consumer protection laws aim at empowering consumers to play an active role and fully benefit from the Digital Single Market. However, the digital transition is introducing both improvements and challenges to business-to-consumer markets.
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’ interventions) and EU added value (producing results beyond what would have been achieved by the EU states acting alone).
The Fitness Check is primarily retrospective in focus; however, there is a forward-looking aspect to assess the ongoing relevance and ‘fitness
for purpose’ of the Directives.
There are increasing concerns that new technologies and data-driven practices are used to undermine consumer choice and to influence them to take decisions that go against their interests. This could reduce consumer trust and limit the effectiveness of the current rules in the digital environment.
In response to the emerging concerns about the lack of digital fairness for consumers, the Commission announced in the New Consumer Agenda of 13 November 2020 that it will analyse whether additional legislation or other action is needed in the medium-term in order to ensure equal fairness online and offline. The 2021 Council Conclusions on the New Consumer Agenda highlighted the need to ensure a reliable, safe and fair digital environment for consumers through, among others, future-proof legislation that takes into account the challenges posed by the digital era.
In May 2022, the Commission launched a Fitness Check of EU consumer law on digital fairness in order to determine whether the existing key horizontal consumer law instruments remain adequate for ensuring a high level of consumer protection in the digital environment (digital
fairness) or whether any changes are necessary. The Fitness Check was included in the 2024 Commission Work Program.
A Fitness Check is a comprehensive evaluation of a policy area that addresses the extent to which a set of related EU legislative acts have contributed or not to attaining EU policy objectives. It is well suited to identifying regulatory overlaps, inconsistencies, synergies, digitalisation potential and cumulative impacts. This Fitness Check covers three Directives, which form the core of the framework of consumer protection that applies to most traders and consumer-facing sectors in the EU:
• Unfair Commercial Practices Directive 2005/29/EC (UCPD);
• Consumer Rights Directive 2011/83/EU (CRD);
• Unfair Contract Terms Directive 93/13/EEC (UCTD).
The Fitness act: purpose and concept
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, in compliance with the legal standards established in EU
consumer law.1 This Fitness Check builds on the findings of the 2017 Fitness Check of EU consumer law and 2017 CRD evaluation, which confirmed that, in general, EU consumer law was deemed fit for purpose but identified the need for targeted legislative changes to strengthen
the existing framework, including in the digital area and to improve its enforcement.
Besides, young people are an important consumer segment with specific consumption patterns and often act as early adopters of new technologies and digital products: hence, the Digital Fairness Act will pay particular attention to the protection of minors online.
Source: Commission’s staff working document on “fitness check” on digital fairness, in: https://commission.europa.eu/document/707d7404-78e5-4aef-acfa-82b4cf639f55_en
The public consultation will be open until October 2025, inviting citizens, public authorities and stakeholders to share their ideas on how to further strengthen EU consumer protection online.
More in the Directive on unfair business-to-consumer practice in: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005L0029
The Digital Fairness Act will address several previous shortcomings: Commission President von der Leyen tasked Commissioner McGrath with the development of a Digital Fairness Act.
Michael McGrath, Commissioner for Democracy, Justice, the Rule of Law and Consumer Protection, noted that the EU states have to take “further actions to ensure a fair digital environment for all Europeans”, i.e. the one where rules are clear, simple and effectively enforced. That is why the Commission is calling on consumers, businesses and stakeholders to help designing a new Digital Fairness Act, by sharing the issues they face online and visualizing most effective ways to address them.
The findings of the Digital Fairness Fitness Check*), published last year by the Commission, confirmed the importance of EU consumer protection laws but pointed to certain gaps and highlighted that consumers continue to face multiple problems online.
*) More in: https://commission.europa.eu/document/707d7404-78e5-4aef-acfa-82b4cf639f55_en
The general source at: https://digital-strategy.ec.europa.eu/en/consultations/commission-launches-open-consultation-forthcoming-digital-fairness-act
The Digital Fairness Act will strengthen protection and digital fairness for consumers, while ensuring a level playing field and simplifying rules for businesses in the EU.
It will address specific challenges as well as harmful practices that consumers face online, such as deceptive or manipulative interface design, misleading marketing by social media influencers, addictive design of digital products and unfair personalisation practices, especially where consumer vulnerabilities are exploited for commercial purposes.