Response of the European Law Institute: European's Public Consultation on Digital Fairness – Fitness Check of Consumer Law

Abstract

In its 2020 consumer policy strategy, the ‘New Consumer Agenda’,1 the European Commission announced that it would analyse whether additional legislation or other action is needed in the medium term to ensure equal fairness online and offline. For that reason, the Commission launched, in spring 2022, a Fitness Check of EU consumer law on digital fairness in order to determine whether existing EU consumer law is adequate to ensure a high level of consumer protection in the digital environment. The Fitness Check will evaluate the Unfair Commercial Practices Directive 2005/29/EC (as amended; UCPD), the Consumer Rights Directive 2011/83/EU (as amended; CRD) and the Unfair Contract Terms Directive 93/13/EEC (as amended, UCTD). It examines the adequacy of these Directives in dealing with consumer protection issues such as consumer vulnerabilities, dark patterns, personalisation practices, influencer marketing, contract cancellations, subscription service contracts, marketing of virtual items, the addictive use of digital products, and other matters. It evaluates whether the existing directives would benefit from targeted strengthening or streamlining, while taking into account other relevant legislation in the digital field and ensuring coherence. It will also examine the scope for any burden reduction, cost savings and simplification.

The European Law Institute (ELI) mandated Marie Jull Sørensen, Peter Rott and Karin Sein to draft a response to this consultation. The response focuses on the third part of the questionnaire, in which the European Commission invites comments on potential suggestions on improving EU consumer law for the benefit of consumers.