The rapid digitisation of consumer markets and the proliferation of data-driven services have challenged the effectiveness of the existing EU consumer protection framework. In response, the European Commission conducted an in-depth Fitness Check on three core Directives of EU consumer law, assessing their relevance, effectiveness, and coherence in the digital environment.

1.       The Legal Instruments Under Review

The Fitness Check focused on the following three horizontal Directives:

• Unfair Commercial Practices Directive (UCPD) – Directive 2005/29/EC
• Consumer Rights Directive (CRD) – Directive 2011/83/EU
• Unfair Contract Terms Directive (UCTD) – Directive 93/13/EEC

While these Directives were not initially designed for the digital economy, they currently apply across all B2C transactions, including online practices.

2.       What is “Digital Fairness”?

The term refers to the need to ensure that consumers enjoy the same level of protection online as they do offline. It highlights the need to address manipulative or opaque practices—such as dark patterns, deceptive personalisation, and unclear contract terms—that distort consumer decision-making.

3.       Key Findings of the Fitness Check

3.1. Legal Uncertainty and Regulatory Gaps

The general and technology-neutral nature of the Directives offers flexibility but comes at the cost of legal certainty. Many digital practices—like AI-based personalisation, influencer marketing, and gamified subscription models—lack clear regulatory treatment, resulting in fragmented enforcement and delayed judicial interpretation across Member States.

3.2. Rising Consumer Harm and Compliance Challenges

In 2023, 30% of online consumers reported problems with purchases—a rate double the Commission’s target of 15%. Moreover, the estimated post-redress financial detriment to consumers reached €7.9 billion, more than double the 2017 estimate of €3.9 billion.

3.3. Emerging Problematic Practices

The report identifies several recurring patterns of concern under EU consumer law:

• Dark patterns in user interfaces designed to nudge users into undesired actions.
• Opaque influencer marketing that conceals commercial intent.
• Difficulties in cancelling digital subscriptions or understanding renewal terms.
• Manipulative personalisation of prices and content based on sensitive data.

3.4. Weak Enforcement Mechanisms

Despite the presence of networks like the Consumer Protection Cooperation (CPC), enforcement remains inconsistent and under-resourced across the EU. National authorities face significant technical and human resource limitations in addressing cross-border and platform-based infringements.

4.       Commission’s Outlook and Recommendations

• Targeted legislative intervention: Clarifying the application of core consumer rights to digital-specific issues.
• Enhanced interpretative guidance: Updating Commission notices to assist courts, authorities, and businesses.
• Better integration with new legislative instruments such as the DSA, DMA, AI Act, and Data Act.

5.       Conclusion

The Fitness Check underscores a fundamental truth: consumer rights must evolve in parallel with digital innovation. Legal certainty, strong enforcement, and explicit regulation of new manipulative practices are crucial to restoring trust and ensuring a level playing field across the Digital Single Market.

The EU stands at a critical juncture. Whether it succeeds in adapting its consumer protection framework to the digital age will determine whether fairness, transparency, and accountability remain central to the European digital economy.

Stergios Konstantinou

Advanced LLM – IP & ICT Law

CIPP/E, CIPM, FIP