5.1. Introduction

In the previous chapter, we saw that there are good reasons for policymakers to be concerned about the proliferation of dark patterns in consumer-facing digital interfaces, including those of e-commerce websites. These concerns do not arise in a legal vacuum, however. The EU consumer acquis, i.e. the aggregate body of EU consumer protection policies, already provides consumers with a wide array of rights and other measures intended to protect them both online and offline; some authors like Howells even view it as ‘the most protective regime’.1

This chapter provides an introduction to the EU consumer law instruments this book is concerned with – the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive (CRD). It not only discusses why these may be relevant for the regulation of dark patterns in e-commerce (hence the reference to online consumer protection instruments), but also the logic underpinning them and how the proliferation of dark patterns challenges that logic.

The remainder of the chapter proceeds as follows. Section 5.2 delves into the internal-market-driven and technologically neutral roots of EU online consumer protection instruments. Section 5.3 describes the aims of, and the substantive protective mechanisms provided by, the UCPD and the CRD; the interplay between the two instruments; and how these have been adapted by the Omnibus Directive.2 Section 5.4 reflects on the relevance of these instruments to tackling dark patterns, and the ways in which dark patterns may challenge some of the fundamental tenets of the current system of protection.

5.2. The logic underpinning EU online consumer protection

This section talks about the logic underpinning EU online consumer protection instruments. It first explains, in 5.2.1, how the instrumentalisation of consumers for the purpose of furthering the EU internal market has led to a preference for particular policy measures (information remedies) and a specific consumer image – those capable of processing information and acting on it (in other words - the information paradigm).3 The section then looks at the role played by concerns about technology in the regulatory design of the CRD and UCPD (5.2.2).

5.2.1. The consumer as an (internal) market actor

The origins of the information paradigm in EU consumer law can be traced back to the difficulties the EU faced in establishing its internal market. An EU internal market needs consumers that are confident and willing to purchase goods and services cross-border.4

Prior to the Single European Act of 1986, the EU’s legislative efforts in the field of the internal market were often paralysed due to the requirement of unanimity in the Council.5 Against this background, the Court started filling the gap created by this lack of legislative prowess by taking an active role in the striking down of national laws including, amongst others, those restricting the free movement of goods, in a process known as ‘negative harmonisation’.6

One of the main building blocks of this approach to integration is the Court’s judgment in Dassonville.7 Dassonville cast a wide net over national provisions that may be deemed to interfere with the free movement of goods by equating not just overtly discriminatory national rules, but ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[EU] trade’ to trade restrictions.8 Cassis de Dijon circumscribed the broad reach of the Dassonville formula by introducing the ‘rule of reason’ test, which entails that national restrictive measures can be justified based on a (non-exhaustive) list of mandatory requirements in the general interest, provided the measures are appropriate and proportionate.9 Consumer protection is one of the most relevant grounds for justification under the rule of reason test.10 This case also opened the door to the so-called ‘labelling doctrine’. This entailed that the Court usually deemed as disproportionate – and, therefore, unduly restrictive of free movement – measures whose stated aims could be achieved through the less intrusive means of providing consumers with information.11

Mandated disclosure as a consumer protection tool requires a consumer who is able and willing to process the disclosed information. Accordingly, in its latter case law, the Court defined the attributes of the average consumer who information duties are meant to protect. This consumer is ‘reasonably well-informed and reasonably observant and circumspect’.12 This image of the consumer and the use of information duties to protect the average consumer were in line with the prevailing (neo-classical) economic wisdom at the time, which we looked at in the previous chapter.13

When consumer policy started transitioning from negative to positive integration measures, the imposition of information duties was the obvious policy choice. As Busch points out, mandating disclosure is a largely uncontroversial regulatory tool for several reasons.14 As also discussed above, information duties align well with the idea of the single market, as they may increase consumer confidence when shopping cross-border.15 They also constitute minimal interference with the autonomy of the transacting parties, and therefore sit well with the non-interventionist, ‘markets will fix themselves’ audience.16 Further, from the perspective of consumer protection, information puts a consumer in a better position to compare competing offers by correcting information asymmetries.17 Additionally, as Sibony and Helleringer point out, information duties do not affect national private law systems; Member States have traditionally been averse to the EU’s involvement in national contract law.18

Against this background, the EU has therefore enacted a host of consumer law instruments that place positive obligations on traders to disclose information to consumers before a contract is concluded. Recently, an empirical analysis by Narciso found almost 1500 pre-contractual information requirements spread across various consumer law instruments.19

The information paradigm also permeates consumer protection measures that apply to online transactions. The CRD imposes an impressive number of pre-contractual information requirements on online traders.20 It also provides consumers with a 14-day cooling-off period after an online purchase – the right of withdrawal21 – to give consumers a second chance at an informed decision in circumstances where they cannot inspect the goods they order online in person.22 Consumer information requirements in the EU are complemented by the UCPD’s provisions on misleading practices (Arts. 6-7 UCPD), which serve the purpose of preventing misinformation by prohibiting the provision of false/incomplete information or otherwise deceiving consumers, as well as the omission of relevant information.23 Further, Art. 7, which deals with misleading omissions, also contains pre-contractual information requirements.24 The ideal recipient of this complete and truthful information is the average consumer.25 The UCPD is therefore emblematic of the information paradigm.26 Admittedly, the UCPD does break the general tendency to use information remedies by acknowledging that consumers’ transactional decisions may be influenced through means other than information – it also prohibits aggressive commercial practices (Arts. 8–9) that may unduly restrict a consumer’s freedom of choice, and contains a general clause on unfair commercial practices (Art. 5). These innovations are, however, also subject to the average consumer test, as we will see in section 5.3.

5.2.2. Engagement with technology

Nowadays, technology neutrality is a regulatory design principle in the EU: the Better Regulation toolbox instructs EU rule-makers to ‘aim for technology neutrality and seek to avoid lock-in to one specific technology solution or technique’ in their legislative efforts.27 The toolbox goes on to warn that ‘[e]xcessively prescriptive and detailed regulation can create barriers to entry for innovative solutions’ and that technology-specific regulation ‘can also limit the possibility to adapt rules in a timely manner, when circumstances change’.28

Technology neutrality was also the preferred legislative method when it came to the adoption of the UCPD in 2005. The Commission’s 2001 Green Paper on Consumer Protection in the EU, which debuted the idea of a European instrument governing unfair commercial practices, acknowledged that ‘new-economy’ commercial practices, including practices occurring online, have challenged (national) traditional rules.29 It was foreseen that these challenges, along with the general diversity of national rules on unfair trading practices, would impede cross-border (e-)commerce.30 The reference to e-commerce in the document therefore seems to be used as an argument in favour of harmonising national rules so as to ensure consumer and trader confidence when (e-)contracting cross-border, rather than a recognition of technology-specific concerns. The Green Paper envisaged two ways forward: a ‘specific approach’, i.e. the adoption of a number of specific directives that tackle issues in various sectors separately, or a ‘mixed approach’, i.e. ‘a comprehensive, technology-neutral, EU framework directive to harmonise national fairness rules for business-consumer commercial practices’.31 The mixed approach won the day. The UCPD’s technological neutrality is still seen by the Commission as one of the most prized features of the Directive.32

The adoption of the CRD was also precipitated by concerns about consumers’ confidence when contracting cross-border, but the online dimension is more visible in this Directive. The CRD repealed and replaced the Distance Selling Directive (DSD).33 The DSD broadly regulated consumer contracts concluded through distance communication means, i.e. any means that did not require the trader and the consumer to be in the same space.34 The DSD negotiations started in 1991, when the internet was not yet accessible to the public, and were completed in 1997, when e-commerce had not yet picked up speed.35 As Lodder aptly explains, the main concerns behind the DSD were not online transactions, but rather:

‘Tell Sell advertisements’, where, in the middle of the night, customers ordered all sort of products promoted by types likes [sic] Mike ‘It's Amaaaazing’ Levey. Once sober, they were confronted with a postman bringing some fancy work-out set, cleaning materials or handy knives. An aim of the Distance Selling Directive was to protect consumers against these rash purchases.36

The protective regime established by the DSD comprised information duties,37 but also a right of withdrawal, enabling consumers to return midnight purchases within at least seven working days.38

The fact that the DSD was not adopted with e-commerce in mind meant that its provisions were not always fit to deal with issues that may arise in online environments.39 Further, the DSD was a minimum harmonisation instrument, allowing Member States the option of providing greater degrees of protection to consumers in terms of more information and longer cooling-off periods. This resulted in varying degrees of (online) consumer protection across the EU, which was seen as not conducive to consumer confidence in cross-border online shopping.40

The CRD, adopted in 2011, was aimed at addressing these shortcomings of the DSD, as well as to add coherence to EU consumer protection law.41 The CRD is technologically neutral in that it lays down information requirements for both online and offline transactions. When it comes to online transactions, it does, however, impose a significantly higher number of information requirements, expanding upon those of the DSD, likely because its provisions on distance contracts are supposed to displace MS laws in this respect.42 Further, the CRD lays down some technology-specific requirements as to the way in which information should be communicated to consumers,43 and deals with some specific issues that may arise in online contracting settings.44

In 2017, the Commission completed a Fitness Check of the UCPD and an evaluation of the CRD that were meant to assess, amongst other matters, whether these instruments were fit to deal with challenges encountered by consumers online.45 This evaluation led to the adoption of the Omnibus Directive. Let us now zoom in on the protective provisions of the UCPD and CRD, and the changes introduced by the Omnibus Directive.

5.3. EU online consumer protection instruments

This section looks at the substantive protective provisions of the UCPD (5.3.1) and the CRD (5.3.2), the interplay between these instruments (5.3.3) and some of the changes introduced by the Omnibus Directive thereto (5.3.4).

5.3.1. The Unfair Commercial Practices Directive

The UCPD aims to ensure a high level of consumer protection as well as to fully harmonise the laws of EU Member States on unfair commercial practices, with a view to providing legal certainty to traders operating cross-border and promoting consumer confidence.46 The following sub-sections discuss the UCPD’s scope of application (A) and its substantive approach to combating the use of unfair commercial practices (B).

A. Scope of application

The UCPD is applicable to unfair business-to-consumer commercial practices.47 While it only applies to commercial practices affecting consumers’ economic interests,48 the Directive nevertheless casts a very wide net in terms of its scope of application. Art. 2(d) defines ‘commercial practice’ broadly as any act or omission originating from a trader that is directly connected to the promotion, sale or supply of a product to consumers. Further, the Directive governs commercial practices ‘from cradle to grave’,49 i.e. it applies from the advertising stage, but also after the conclusion of a contract (should a contract be concluded) and during its execution.50

B. The protective approach of the Unfair Commercial Practices Directive

The UCPD takes a three-level approach towards combating unfair practices.51

The first level is represented by the ‘big’ general clause prohibiting unfair practices in Art. 5(2).52 Pursuant to this provision, a commercial practice is unfair if it is contrary to the requirements of professional diligence and is at least likely to ‘materially distort the economic behaviour of the average consumer’. Professional diligence for the purposes of the Directive refers to the standard of skill and care that honest market practice or the principle of good faith demand of the trader in their field of activity.53 The Directive does not define ‘good faith’ or ‘honest market practice’. Recital 20 reveals that the expectation of the Commission in this regard was that traders of different business sectors would develop codes of conduct which could provide evidence as to the requirements of professional diligence in various market sectors.54 As Micklitz notes, only European codes of conduct would be in line with the Directive’s harmonisation objective.55 Almost 20 years after the Directive was adopted, however, EU-wide attempts at self-regulation are yet to follow. The only authoritative, albeit limited, guidance in this regard stems from the Court, which held in Deroo-Blanquart that a breach of professional diligence is to be judged ‘in the light of the legitimate expectations of the average consumer’.56

A material distortion of a consumer’s economic behaviour occurs when a trader is ‘using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that they would not have taken otherwise’.57 The term ‘transactional decision’ encompasses a wide range of consumer decisions relating to a product; it covers not only the decision whether to purchase a product, but also any other decision, be that a decision to act or refrain from acting, that a consumer may take prior to purchasing a product (e.g. whether to enter a shop)58 or after.59

The second level deals with those commercial practices which are particularly unfair, i.e. practices which are misleading in terms of Art. 6 (misleading actions) and Art. 7 (misleading omissions), or aggressive, as set out in Arts. 8 and 9.60

The main purpose of the provisions on misleading actions and omissions is to enable the consumer to make a fully informed choice while acting on the market.61 The term ‘misleading action’ refers to the provision of both untrue information on a wide range of elements (the existence of the product and its main characteristics, the price or the manner in which it is calculated/the existence of a specific price advantage and the rights of the consumer, to name a few), and information that may otherwise deceive the consumer (through its overall presentation, for example), even if it is factually correct.62 A ‘misleading omission’ can occur where a trader omits material information,63 or hides material information or provides it in an unclear, unintelligible, ambiguous or untimely manner.64 ‘Material information’, according to Art. 7(1) UCPD, is the information that ‘the average consumer needs, according to the context, to take an informed transactional decision’; this includes the information mandated by the consumer law directives listed in Annex II UCPD.65 The Directive also lists material information that needs to be provided in invitations to purchase. An invitation to purchase is defined as ‘a commercial communication which indicates characteristics of the product and the price […] and thereby enables the consumer to make a purchase’.66 According to the Court’s decision in Ving Sverige, an invitation to purchase does not require an actual opportunity, or proximity thereto, for the consumer to purchase a product; it ‘exists as soon as the information on the product advertised and its price is sufficient for the consumer to be able to make a transactional decision’.67 Where an invitation to purchase exists, Art. 7(4) mandates the disclosure of, inter alia, the main characteristics of the product, the geographical address and the identity of the trader, the price inclusive of taxes and delivery charges and, where applicable, the existence of a right of withdrawal. Barring these two cases of materiality defined in the Directive, the question of whether the omitted information is material or not has to be assessed on a case-by-case basis.68 Art. 7(1) is seen as a general, indirect duty of disclosure in consumer law scholarship.69

Ultimately, for a commercial practice to be considered misleading for the purposes of Arts. 6–7 and therefore unfair, it must also be at least likely to cause the average consumer to take a transactional decision they would not have otherwise taken.

The provisions on aggressive commercial practices seek to protect the consumer from trader behaviour that may interfere with their freedom of choice.70 Three elements must be fulfilled for a commercial practice to be considered aggressive: it must first involve aggressive behaviour (harassment, coercion or undue influence); secondly, this must be behaviour that may impair the consumer’s freedom of choice or conduct; and, lastly, that the trader’s behaviour may influence the consumer’s transactional decision.71 Art. 9 lists the factors to be taken into account in assessing the aggressiveness of a commercial practice. Of the three genres of ‘aggressiveness’ caught by the Directive, only ‘undue influence’ is given a definition. It is defined, in Art. 2(j), as ‘exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision’. Until fairly recently, there was no further authoritative guidance on what exactly constitutes an aggressive commercial practice. The Court had a chance to cast some light on this matter in recent case law.72

The degree of protection required by the Directive’s general clauses will vary depending on the type of consumer that a commercial practice affects.73 The main consumer benchmark against which the fairness of a practice may be tested is that of the average consumer. The Directive does not contain a clause defining the ‘average consumer’; Recital 18 reveals that the understanding of this notion for the purposes of the Directive is that developed in the jurisprudence of the CJEU.74 An average consumer is therefore one who is ‘reasonably well-informed and reasonably observant and circumspect’; social, linguistic and cultural factors may be taken into account by national authorities in determining expected consumer behaviour. In Art. 5(2)–(3), the UCPD provides two alternative benchmarks: the target group and the vulnerable group. The target group benchmark applies when a commercial practice is targeted at a particular group of consumers; the fairness of the practice is then to be assessed from the vantage point of an average member of that group.75 By virtue of Art. 5(3), vulnerable consumers, whom the Directive defines in terms of personal characteristics (‘mental or physical infirmity, age or credulity’), are protected even if they are not the intended audience for a commercial practice,76 insofar as the vulnerability was foreseeable for the trader. As Duivenvoorde notes, the role of these alternative benchmarks has been limited in practice.77 In Micklitz’s words, ‘the average consumer is the measure of all things’ in the UCPD,78 and the other benchmarks are exceptions to the rule.

In order to determine whether a practice is unfair under the general prohibitions of the UCPD, it is not necessary to subjectively assess the behaviour of the trader. Art. 11(2) UCPD, which deals with the enforcement of the Directive, states that neither the trader’s intention nor their negligence are relevant in this appraisal. Art. 11(2) provides that it is also not necessary to show that consumers have incurred any loss or damage as a result of an unfair commercial practice – its potential to cause a consumer to take a transactional decision they would not have otherwise taken is sufficient in this regard. As Howells et al. point out, this means that, in essence, the UCPD adopts a strict liability approach that only cares about the unfairness of the practice.79

The third level is represented by Annex I to the UCPD, which currently contains a list of 3580 misleading and aggressive commercial practices that are in all circumstances regarded as unfair, i.e. they do not need to be individually assessed and subjected to the transactional decision test.81 Next to being an element of ex ante consumer protection, the Annex I list can also aid in the interpretation of the provisions on misleading and aggressive practices.82

In order to be considered unfair and therefore prohibited under the UCPD, it is sufficient that a commercial practice fulfils only one of these tests, which are to be applied in a strict,83 ‘top-down’ order.84 In assessing the fairness of a commercial practice, the first step is to verify whether it falls under any of the points listed in Annex I. Should that not be the case, then it must be checked whether a practice is unfair on the basis of one of the three small general clauses. If a practice under review does not represent an unfair commercial practice under the first two steps, the application of the big general clause ensues. The general clause therefore functions as a safety net – it catches practices that are not covered by the more specific prohibitions,85 and thus ensures that the Directive is future-proof and able to tackle emerging unfair practices.86 The relationship between the three tests is illustrated in Fig. 1.

5.3.2. The Consumer Rights Directive

Like the UCPD, the CRD aims to ensure a high level of consumer protection,87 but also to even out disparities in national laws that may affect both traders and consumers in their cross-border interactions.88 These disparities were partially the result of the minimum harmonisation approach followed by two instruments repealed by the CRD: the DSD and the Doorstep Selling Directive.89 The name of the Consumer Rights Directive reflects its ambitious origins as a project meant to add coherence to EU consumer law by bringing together many existing consumer law instruments.90 The final result is a much more modest undertaking.

The Directive applies to sales and services B2C contracts,91 in respect of which it has achieved minimum harmonisation of the pre-contractual information requirements in face-to-face settings,92 and the maximum harmonisation of the information required in off-premises and distance contracts, and of the duration, method of exercising and effects of the right of withdrawal.93 The CRD also introduces some additional protective provisions termed ‘other consumer rights’ in Chapter IV, which according to some authors, like Grundmann, are its core innovations.94 For our purposes, the provisions on distance contracts, i.e. Arts. 6 and 8 on information requirements, Arts. 9–16 on the right of withdrawal, and the ones on ‘other rights’ in Chapter IV, are relevant. A ‘distance contract’ is defined in Art. 2(7) as any B2C contract concluded under an ‘organised distance sales or service-provision scheme’ without the simultaneous presence of the parties, and through the exclusive use of distance communication means, which includes the internet (Recital 20). The reference to an ‘organised distance sales or service-provision scheme’ entails that the trader must be selling at a distance with some level of regularity.95

Art. 6 contains the pre-contractual information requirements for distance (and off-premises) contracts. It incorporates the nine paragraphs of information requirements found in the now-repealed DSD, and adds a host of new information requirements intended to increase consumer confidence in the cross-border digital market. Information must be provided on, amongst other things, the main characteristics of the product, the trader, the total price and any other additional charges, whether there is a right of withdrawal and the conditions attached to it, contract duration, and the conditions for termination where the contract is of indeterminate duration or subject to automatic extension.

The information mandated by Art. 6 has to be given in a clear and comprehensible manner. Art. 8 CRD lists some additional general ‘formal requirements’, as well as a series of requirements that are specific to the means of communication used. The general rule (Art. 8(1)) requires that information be made available to the consumer in plain and intelligible language and in a way that is appropriate to the means of communication used. In respect of contracts concluded through ‘electronic means’, Art. 8(2) requires that information about the main characteristics of the product, the total price and the duration of the contract be made available to the consumer in a ‘clear and prominent manner’, directly before an order is placed. Art. 8(2) also places an obligation on traders to ensure that the consumer explicitly acknowledges that there is an obligation to pay when they are placing an order, such as by clicking a button legibly labelled ‘order with obligation to pay’ or another unambiguous formulation to that effect. Art. 8(3) requires ‘trading websites’ to indicate any applicable delivery restrictions and the accepted means of payment clearly and legibly ‘at the latest at the beginning of the ordering process’. Within a reasonable period after the contract has been concluded, traders are expected to provide a copy of the information supplied pre-contractually on a durable medium.96 A durable medium is defined in the Directive as any instrument that allows the consumer to store information personally addressed to them in a non-modifiable form for long enough to address any issues that may arise from the contract.97

The right of withdrawal is governed by Arts. 9–16 CRD. Art. 9(1) grants consumers a 14-day period in which they can withdraw from distance contracts (with the exception of those listed in Art. 16) without any reason. The effect of this right is contract termination.98 As to how consumers may exercise their right of withdrawal, by virtue of Art. 11, consumers may withdraw from contracts either by using the model withdrawal form set out in Annex I(B) CRD or by making any other unequivocal statement to that effect. Consumers are free to choose both the form of the statement and the means through which they want to communicate that statement; the burden of proof of exercising the right of withdrawal is on them, however.99

Chapter IV CRD contains a list of ‘other consumer rights’. Some of these other rights are explicit prohibitions of commercial practices that are common in online settings. Art. 19 prohibits traders from charging consumers fees for using particular means of payment that exceed the traders’ actual costs in this respect. Art. 22 requires traders to attain consumers’ express consent to additional costs and states that the use of default options that the consumers have to reject does not lead to express consent.

In terms of the kinds of consumers the CRD protects, the only benchmark mentioned in the CRD is that of the vulnerable consumer. Recital 34 CRD states that traders should take into account the needs of vulnerable consumers – defined in terms of the UCPD’s personal, foreseeable characteristics – in providing consumers with the information required by Art. 6. The Court has, however, called on the average consumer benchmark as defined in the UCPD (while not referring to the UCPD) in its case law concerned with the interpretation of the CRD.100 According to Luzak, this ‘may suggest that we are now on the verge of observing the CJEU starting to use the benchmark more freely throughout the whole area of European consumer protection’.101

5.3.3. The interplay between the UCPD and the CRD

The previous sections reveal that both the UCPD and the CRD are applicable to the pre-contractual provision of information. Whether the UCPD, CRD or both instruments will apply to an omission of mandatory information depends on (i) the transactional stage and (ii) how the information is presented.

A. The transactional stage

Both the UCPD and the CRD regulate pre-contractual information disclosure. However, the UCPD, by virtue of its ‘cradle-to-grave’ approach to the regulation of unfair commercial practices, applies already from the advertising stage, whereas the CRD applies to the narrower stage of pre-contractual negotiation, as Micklitz points out.102 The overlap between the scopes of the two instruments occurs as of the invitation to purchase stage, in respect of which the UCPD requires, in Art. 7(4), the disclosure of several items of material information that are also listed in Art. 6(1) CRD. In this respect, the Commission states, in its 2021 UCPD Guidance document, that compliance with the information requirements of the CRD already at the invitation to purchase stage is a way to ensure compliance with Art. 7(4) UCPD.103 While this precautionary approach to compliance with information duties is not illogical, traders are not obliged to disclose the many more detailed items of information listed in Art. 6(1) CRD at the (earlier) invitation to purchase stage, and it is questionable whether it is desirable to present consumers with a potential avalanche of information this early in the purchasing process. A clearer delineation of the relevant transactional stages and the provisions applying at each stage therefore remains desirable.

What is clear is that the CRD applies after the invitation to purchase stage. It is therefore crucial to define this stage. As discussed in section 5.3.1, according to the Court’s ruling in Ving Sverige, an invitation to purchase under the UCPD exists as soon as the information on a product and its price is sufficient for the consumer to be able to make up their mind about whether to make a purchase or not, regardless of the proximity of an invitation to purchase to an actual opportunity to purchase the product. While the Court’s judgment casts light on when the invitation to purchase stage begins, it provides little guidance as to when it ends. Further, the distinction between an invitation to purchase and the pre-contractual stage makes sense when the means through which an offer is communicated and the means of purchase are different. However, when these means are the same, as is the case in online shopping, there is significantly more proximity between a product offer and the actual opportunity to buy it. That being said, the difficulties that may arise due to the legal framework’s failure to take into account the timeliness aspect of disclosure of information, as well as the actual workings of online shopping, are better left for the next chapter, where concrete scenarios are discussed.

B. The presentation of information

The omission of the information mandated by the CRD can constitute a breach of the UCPD by virtue of Art. 7(5), which provides that the information required by the EU legal instruments (non-exhaustively) listed in Annex II UCPD is considered material information for the purposes of Art. 7 UCPD. While the CRD is not listed in Annex II, Arts. 4 and 5 of the DSD, which was replaced by the CRD, are included in the list, and references in EU legal instruments to the DSD are to be read as references to the CRD.104 The requirements Art. 7 UCPD imposes in terms of presentation of information (i.e. its timing and form) can therefore apply to the information requirements listed in Art. 6 CRD. This concomitant application of the UCPD and the CRD could, in theory, ensure a higher level of consumer protection when it comes to information duties in respect of which the CRD does not impose a timing or form requirement. However, the practicalities of the instruments’ interaction in this respect are still not entirely clear. As seen in the previous sub-section, the CRD imposes, in Art. 8, more specific information presentation requirements in some respects, including when contracts are included online. Based on Art. 3(4), the UCPD defers to more specific rules on commercial practices laid down elsewhere in EU law in cases of conflict, and, given that the CRD governs information presentation in more detailed terms, we could reasonably expect that it may sometimes take precedence over the UCPD in this regard. Again, whether and how the overlap of the instruments could pose issues is best explored in the next chapter. Their overlap was, however, one of the points that was expected to be addressed by the Omnibus Directive. Let us now examine what the Omnibus Directive has achieved.

5.3.4. The Omnibus Directive

In 2016, the European Commission launched a Fitness Check of EU consumer and marketing law105 as part of its broader REFIT programme, which aims to ensure EU law delivers its intended benefits for individuals and businesses while lowering compliance costs for the latter.106 The Fitness Check examined, amongst other matters, whether the EU consumer acquis are still fit to tackle modern consumer issues, including issues arising in digital markets, as well as the coherence of instruments containing consumer information requirements.107 The UCPD was included in the Fitness Check, and the CRD underwent a separate parallel evaluation.108 The evaluations concluded that ‘the substantive rules laid down in the Directives are capable of addressing the existing consumer problems’, including the heightened risk of exposure to unfair commercial practices online.109 The biggest threat to consumers in digital markets, according to the Commission’s report on the evaluations, was the lack of significant improvements to traders’ compliance with consumer protection rules,110 which the report links to a lack of effective enforcement of these rules, consumers’ limited awareness of their rights, and their limited opportunities for redress (e.g. the UCPD did not provide consumers with a direct right to individual remedies).111 In terms of coherence, one of the areas for improvement that the Commission identifies is the need to streamline the pre-contractual information requirements stemming from the UCPD and the CRD.112

These evaluations resulted in the adoption of a ‘New Deal’ for consumers in April 2018, consisting of a Commission communication, a proposal for a directive on representative actions and a proposal for the so-called ‘Omnibus Directive’, amending, amongst others, the UCPD and the CRD.113 The Omnibus Directive was adopted on 27 November 2019, and its provisions are applicable as of 28 May 2022. The remainder of this section describes the most important changes made to the substantive provisions of the UCPD and the CRD from the perspective of this study.114

The Omnibus Directive added several new provisions dealing with misleading online reviews to the UCPD. Prior to these amendments, EU consumer law did not directly regulate the reliability of online reviews.115 Point 23c of Annex I now prohibits ‘[s]ubmitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products’. Stating that product reviews are submitted by verified consumers without taking reasonable and proportionate steps to check that they originate from such consumers is now prohibited in point 23b. The Directive also added a new point to Art. 7 UCPD on misleading omissions. Traders providing access to consumer reviews have to disclose whether and how they ensure that the reviews originate from verified consumers.116

As previously discussed, one of the key points raised in the 2017 Fitness Check was the difficulties caused by the overlap between the scopes of application of and the substance of the information duties contained in the CRD and the UCPD. The results of the public consultation carried out in the context of the Fitness Check showed that the majority in all respondent categories (public authorities, business stakeholders, consumers and consumer organisations) agreed that there is a need to streamline the information requirements contained in, amongst others, the UCPD and the CRD.117 This recommendation has, regrettably, only partially been taken on board. The Omnibus Directive removed the requirement to provide information about a trader’s complaint handling policy from Art. 7(4)(d) UCPD. The remainder of Art. 7(4)(d) remains unchanged. Counterintuitively, the Omnibus Directive introduces new, overlapping information duties to the CRD and UCPD, such as the duty of online marketplaces to disclose to consumers whether a third party offering products through their platform is a trader or not based on the latter’s declaration, a duty which can be found in both Art. 7(4)(f) UCPD and the new Art. 6a CRD (alongside some additional information requirements). Another step the Commission took to clarify the terms of engagement between these two instruments was the facilitation118 of the ‘Recommendations for a better presentation of information to consumers’, a best practices document drafted by European industry representatives.119 The idea was that this document would be endorsed by BEUC and its national members. Towards the end of the dialogue process, BEUC refused to support the document, questioning its quality and added value, and the recommendations are now a unilateral self-regulatory initiative by entrepreneurs.120 Notably, while the recommendations acknowledge that both the UCPD and the CRD regulate the pre-contractual provision of information, they only refer to the CRD when it comes to the disclosure of specific information duties, and therefore do not help to resolve the internal inconsistencies of EU information duties.

Another interesting trend is the Commission’s continued reliance on information remedies in this first major review of the UCPD and CRD. According to Sibony, the reliance on information remedies in the Omnibus Directive is a result of behavioural studies commissioned by the Commission with poor ecological validity, which seemed designed to confirm rather than question the information paradigm.121 We will put this protective approach to the test in the next chapter.

5.4. EU online consumer protection and dark patterns

As seen in 5.3.1 and 5.3.2, the UCPD and CRD, taken together, purport to ensure that consumers take free and informed decisions. Dark patterns may undermine either or both of these aspects of consumer autonomy. More specifically, dark patterns offer ample opportunities for traders to manipulate the flow of relevant information by making it hard to notice that information or delaying its presentation (Information-hiding dark patterns), as well as inducing false beliefs in users through providing false information or omitting key elements of information (Deceptive dark patterns).122 Information-hiding or Deceptive dark patterns could therefore interfere with the informational quality of consumers’ decisions. Asymmetric, Covert or Restrictive dark patterns may influence consumer decisions by eliminating, suppressing or complicating the choices available to users,123 and so could detract from consumers’ freedom of choice. Both the CRD and the UCPD are relevant in terms of addressing the proliferation of dark patterns on e-commerce websites in EU consumer law.

These instruments were, however, intended to protect rather capable consumers, as illustrated by the discussion in 5.2.1. As we saw in Chapter 3,124 dark patterns may seek to exploit consumers’ behavioural shortcomings. There may therefore be a mismatch between the image of the consumer and the attendant information remedies used in policies, and the means of manipulation consumers encounter online. Further, the UCPD and CRD were designed to protect consumers both online and offline. While, as section 5.3.4 shows, the UCPD has become slightly less technologically neutral post-Omnibus, as it now prohibits some online practices, such as fake online reviews, its core provisions remain technologically neutral. The CRD, which was adopted later, does contain some (more) technology specific provisions. The question of whether these provisions are technology specific enough to ensure adequate consumer protection in digital environments will be our subject of discussion in the following chapter. If the proof of the pudding is in the eating, the effectiveness of a policy is arguably in its application.