The strong political momentum for a Digital Fairness Act reflects a widespread understanding that the current framework is insufficient, driving an inevitable and urgent political debate. Both von der Leyen’s mission letter and Michael McGrath’s opening statement underscored the importance of strengthening consumer rights in digital ecosystems. However, the path to a formal Digital Fairness Act (DFA) proposal remains long and complex.
In anticipation of the EU’s latest initiative to modernise the digital acquis, Research Fellows Amelia Fletcher and Christoph Busch have laid the groundwork for the future DFA proposal in their issue paper Shaping the Future of European Consumer Protection: Towards a Digital Fairness Act. Their work, and more broadly the strategies and priorities that will shape the future of EU digital consumer protection were the focus of an event in Brussels on 4 December 2024.
While it became clear that Digital Fairness Fitness Check did a great job in highlighting numerous unresolved gaps, the new regulatory approach to address these gaps should be subject to careful analysis and strategic planning to chart the most effective path forward. Nils Behrndt of the European Commission remarked:
“For consumers to trust the market, they need to know that their rights are respected, also when they buy or navigate online. This is why the Commission will work on a Digital Fairness Act to address remaining challenges with problematic digital commercial practices.”
Promoting Coherence and Avoiding Duplication
To ensure coherence, the DFA should focus on addressing consumer-facing issues, distinct from the concerns covered under the Digital Services Act (DSA) and Digital Markets Act (DMA). The DFA should not only align with existing frameworks and address gaps but also ensure fairness in the digital marketplace without introducing unnecessary complexity. Christoph Busch highlighted the need for a holistic approach to regulatory design:
“We have seen too many patches in EU law, (in Financial Services and with the Omnibus Directive). Instead, we should aim for consistency and be ambitious.”
Victoria de Posson of the European Tech Alliance cautioned against excessive regulatory complexity:
“EU lawmaking should focus on enforcement, making EU rules fit like puzzle pieces… but the risk of creating a regulatory ‘Christmas tree’ in 2026 is real. A DFA now is too much, too soon. European tech companies need to hire more engineers, not more lawyers.”
Ensuring Effective Enforcement
The success of the DFA will depend on robust enforcement mechanisms and improved coordination between national authorities and EU institutions. The potential revision of the Consumer Protection Cooperation (CPC) Regulation could play a critical role in enhancing cross-border enforcement capabilities. To ensure alignment, the CPC Regulation will need to be revised in tandem with the DFA.
Razvan Antemir of Amazon underscored the importance of enforcement in the policy framework:
“The EU is at a crossroads for consumer policy, with challenges ranging from competitiveness to ensuring a level playing field. Enforcement remains a key aspect that needs to be addressed ahead of any further legislation.”
Addressing Harmful Practices and Strengthening Consumer Trust
For consumer protection to be effective, it is not enough to create sound rules or ensure robust enforcement; consumers must also be empowered to exercise their rights and trust the businesses they engage with online. This makes it crucial to address the most harmful and problematic practices that erode this trust.
The Fitness Check Report identifies several “problematic” practices requiring regulatory action, such as ‘dark patterns’, unfair contract terms, addictive design etc. However, CERRE academics stress that the practices contained in this list, albeit comprehensive, require a more nuanced approach. MEP Andreas Schwab highlighted this complexity:
“We are facing a complex task in balancing consumer protection with the fast-paced evolution of digital technologies such as AI-driven services, e-commerce, and data analytics, which all have transformed how consumers interact with markets. But addressing the digital challenges for consumer protection and empowerment in the EU requires a careful balance: enhancing consumer safeguards to ensure trust and safety in digital markets while maintaining regulatory stability to foster innovation and economic growth.”
Simple Rules to Enhance Impact
Clarity and simplicity are recurring themes in discussions surrounding the DFA. Some have suggested that concepts such as ‘dark patterns’ should be replaced with straightforward rules targeting specific practices. Echoing CERRE’s previous work which has advocated for the use of the term ‘harmful online choice architecture’, Dries Cuijpers of ACM argued for maintaining clarity in consumer protection laws:
“We don’t need another layer of legal complexity by introducing the terminology ‘dark patterns.’ Rather, I would like to see legislation on concrete forms of deceptive design.”
Advancing Consumer Protection: CERRE’s Contribution
We are only opening the prologue of this new legislative framework. But CERRE has been at the forefront of the digital fairness debate and will remain a central contributor in the coming years through interdisciplinary research and constructive fora for discussion between stakeholders with varying views
The overarching aim of CERRE’s work is to ensure that regulatory initiatives, including the DFA, are robust and future-proof. Bruno Liebhaberg, CERRE Executive Chairman said:
“Regulation must be evidence-based, intentional, and grounded in practice. In consumer protection, this is especially critical, as we are dealing with a patchwork of interlinked legal frameworks and varied approaches across Member States. Regulation should empower consumers and protect their rights while also fostering a fair and competitive digital economy.”
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