Digital Fairness Act - new rules of the game for digital products

I. From Fitness Check to Reform Proposal

The EU Commission launched the "Digital Fairness Fitness Check" back in 2022, during which
the core standards of European consumer law—the Unfair Commercial Practices Directive (UCPD),
the Consumer Rights Directive, and the Unfair Contract Terms Directive—were evaluated for their
suitability for the digital economy. The results were published in October 2024.
Although the existing regulations were generally considered viable, the
Fitness Check identified legal uncertainties and regulatory gaps, particularly in areas such as dark
patterns, addictive design, influencer marketing, personalization practices, pricing,
and subscription traps. The Commission estimates the resulting annual harm to consumers
in the EU at approximately EUR 7.9 billion (EU Commission, Commission Staff
Working Document, Fitness Check of EU consumer law on digital fairness, SWD(2024) 230 final,
October 3, 2024, p. 9).
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Consequently, in addition to the already adopted Digital Services Act (DSA)
and Digital Markets Act (DMA) (see our blog post from February 5, 2024), the EU Commission presented
a further reform package on November 11, 2026, consisting of the draft regulation for the
Digital Fairness Act itself, a draft for a Simplification Directive
to specifically amend the Consumer Rights Directive, and their respective
annexes.
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In terms of content, the DFA primarily addresses six key problem areas:
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1) the misleading or manipulative design of user interfaces ("dark patterns"),
2) addictive design of digital products, and
3) misleading influencer marketing on social media,
4) unfair personalization practices, particularly where consumer vulnerabilities
are exploited for commercial purposes
5) pricing, tickets, and trust marks
6) contracts, subscriptions, and automated systems

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II. The approach: Focusing on digital product design

What is remarkable is not so much the number of new features as their direction. With the official
draft legislation from the EU Commission, European consumer law (as a directly applicable
regulation) is to be specifically extended to the architecture of digital interfaces. The proposal
expressly refers to the design, organization, and operation of online interfaces
"including visual, acoustic, and other components" (Art. 10(1) DFA). This makes product design, user experience, and monetization models subject to fair competition law. Due to the broad wording, this applies beyond classic websites to apps, games, and voice-based or immersive interfaces.

1. Dark patterns: Prohibition of manipulative interface design

Art. 10 DFA prohibits online interfaces that deceive or manipulate consumers or can
materially distort their economic behavior. This general prohibition is flanked
by a new Part III in Annex I, which lists dark patterns that are always considered unfair, without
the need for a case-by-case assessment. These include, among others:

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• false or unverified availability and popularity claims, as well as permanently
displayed scarcity alerts,
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• pre-selected options that consumers must actively deselect to avoid additional purchases
"pre-ticked boxes",
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• presenting the refusal of an offer as a poor decision ("confirmshaming"),
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• repeatedly pushing for a decision that has already been made ("nagging"),
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• misleading or ambiguous wording, such as double negatives,
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• less prominently displayed information regarding prices and contract terms,
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• fake notifications that simulate a need for contact or action, and
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• disproportionately complex steps required to revoke or change a decision
("click fatigue").
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The list is dynamic: The Commission is to be empowered to supplement or amend it via delegated acts
(Art. 10(3) DFA). For product development, this means: It is not enough to simply observe the specific
prohibitions already included in the blacklist; rather, one must keep the legislator's broader
intent in mind.

The fact that this topic is already subject to litigation is demonstrated by current case law: Manipulative
designs can already be challenged under provisions such as Sections 3(2) and 4a of the UWG (aggressive
commercial practices), Art. 25(1) of the DSA (for online platforms), as well as Art. 16e of the Consumer
Rights Directive, Art. 246b Section 4(1) of the EGBGB, and Section 5(6) of the UWG (for financial services).
In its final judgment of February 5, 2025 (case no. 3 UKl 11/24 e) regarding the promotion of ticket
insurance during the checkout process, the Higher Regional Court of Bamberg ruled that the combination
of "framing," "nagging," and a misleadingly labeled decline button violates Art. 25(1) and (3) of the DSA as well as Sections 3(2) and 4a(1)
Section 2(3) of the UWG (Unfair Competition Act) (cf. Higher Regional Court of Bamberg, judgment of Feb. 5, 2025, 3 UKl 11/24 e, GRUR-RS 2025, 6221;
the non-admission appeal filed against this to the Federal Court of Justice under case reference I ZR 56/25 was
dismissed; see also the detailed review in our blog post from
August 24, 2026). The blacklist is intended to replace such case-by-case assessments for the practices
listed therein.

Furthermore, the DFA is intended to extend the ban beyond the platform sector to all types of
businesses – including e-commerce websites and digital services that are not based on
the mediation of content (cf. COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS, New Consumer Agenda 2030 and Consumer Action Plan for the Single Market "A new impetus for consumer protection, competitiveness and sustainable growth", November 19, 2025, COM/2025/848/final (hereinafter "COM/2025/848/final")). For operators of online platforms, both regimes must be kept in view (more on this under IV.).

2. Addictive Design

The second regulatory area of the EU Commission's proposal concerns the addictive design
of digital products, which can induce users to spend excessive amounts of time or money. The
European Parliament has long called for a ban on the most harmful features, such as autoplay and
endless scroll (cf. detailed meeting reports of March 12, 2025, C/2025/6063).

The design of games and platforms is a particular focus:
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• Virtual currencies: Providers must state the equivalent value of in-game items in the
currency used to purchase the virtual currency (Art. 14 DFA). For
minors, paid virtual currencies are disabled by default and can only be
activated with parental consent.
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• Loot boxes: Information requirements regarding content and winning probabilities,
an option for all consumers to disable them, and a ban for minors (Art.
15 DFA).
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• Pay-to-win and pay-to-progress: Ban for minors (Art. 16 DFA).
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• Addictive design: Providers whose digital products encourage excessive use
we must provide consumers with effective tools to disable certain
features, specifically autoplay and endless content consumption, as well as
interaction-based push notifications, streaks, and mechanics that encourage
regular usage, along with features that simulate
interpersonal relationships (Art. 17 DFA). The Commission may also expand this list via delegated act.
expand.

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For minors, the DFA also refers to the concurrently proposed "EU KIDS Act," which imposes
stricter requirements for social networks, video platforms, online games, and AI companions.
Art. 17 DFA does not apply to these providers with regard to minors. This creates a
complex web of DFA, KIDS Act, and DSA, the demarcation of which will require considerable
attention in practice.

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Industry concerns suggest that some of the provisions go too far, such as the
definition of "addictive design," potentially capturing scenarios
that would be considered acceptable customer loyalty practices in the analog world. This could lead to
conflicts with the existing regulatory framework. Furthermore, overly broad prohibitions could
impact established free-to-play business models and loyalty programs, thereby leading to
structural distortion of competition (cf. Zillmer, Well-intentioned is not well-done
– The Digital Fairness Act and the limits of what is reasonable, MMR 2026, 719, 720).

3. Influencer marketing: Transparency requirements tightened

Misleading marketing by influencers is the third core topic of the consultation on the DFA.
It is already the case today that advertising must be recognizable at first glance. In its
landmark "influencer" rulings, the Federal Court of Justice (BGH) clarified that any valuable consideration
triggers the labeling requirement (cf. BGH, judgment of Sept. 9, 2021, I ZR 90/20, GRUR 2021, 1400 – Influencer
I; BGH, judgment of Sept. 9, 2021, I ZR 125/20, GRUR 2021, 1414 – Influencer II; BGH, judgment of Sept. 9, 2021, I ZR
126/20, MMR 2021, 892 – Influencer III). Violations of the labeling requirement can simultaneously
constitute violations of Section 6 (1) no. 1 of the Digital Services Act (Digitale-Dienste-Gesetz), which, as
a consumer protection law, can also be enforced by associations (cf. OLG Karlsruhe, judgment
of March 3, 2026 – 14 UKl 2/24, MMR 2026, 598, 600 para. 55 – Labeling requirement for
influencer posts).

The DFA now defines influencer marketing as a commercial practice for the first time (Art. 3 no. 15 DFA) and
specifies the labeling requirement (Art. 11 DFA). Disclosure must be clear, prominent, and
unambiguous, specifically using the terms "advertisement" or "commercial collaboration"
(in the English version "advertisement" or "commercial collaboration"). On platforms within the
scope of the DSA, the platform's own labeling function must be used (Art. 11 (1), (2)
DFA). Also new are the prohibition on directly encouraging minors to make a purchase or presenting products unsuitable for them as suitable, as well as the prohibition of influencer marketing for products for which advertising is prohibited under Union or national law, and for dangerous products (Art. 11 (3) to (5) DFA). There is relief regarding provider identification: those who do not sell directly to consumers are not required to provide their address (Art. 7 (4) DFA).

4. Unfair personalization and exploitation of vulnerability‍

Furthermore, the DFA addresses unfair personalization practices, particularly when the
vulnerabilities and problematic characteristics of consumers in social media, video games,
and e-commerce are commercially exploited (cf. European Commission, COM/2025/848/final).
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According to the European Commission's proposal, personalized advertising based on profiling
in the future, targeting minors and using special categories
of personal data (Art. 9 GDPR) will be prohibited (Art. 12 DFA). This prohibition is also
already known from the DSA and is now to be extended by the DFA to all businesses, including
advertising service providers. In addition, there is a ban on price personalization based on
profiling if it is likely to harm minors or other vulnerable consumers
(Art. 13 DFA). Factually justified differentiations, such as
student discounts or evidence-based insurance rates, are intended to remain unaffected
according to the recitals.

5. Pricing, tickets, and quality seals

The blacklist in Annex I is being expanded and simultaneously consolidates the amendments of the
Empowering Consumers Directive (EU) 2024/825. Of particular practical relevance will likely be:
be:
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• Drip pricing: The initially stated price must include all foreseeable, unavoidable fees
and charges (Annex I No. 12).
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• Price comparisons: Price reductions expressed as a percentage or with a strikethrough price
will only be permitted if the reference price is a current price of a clearly
identified competitor (Annex I No. 11). Comparisons with RRPs would thus effectively
be ruled out. The interaction with the requirements of the Price Indication Ordinance regarding
price reductions will need to be clarified.
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• Event tickets and queues: For dynamic pricing, the number of available
tickets must state the advertised price and the maximum price (Art. 18 DFA); in virtual
queues, the current price, price variability, and maximum price must be displayed
in real time (Art. 19 DFA). A general ban on resale for profit did
not make it into the proposal.
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• Environmental and sustainability advertising, reviews, product lifespan: The blacklist
adopts the bans on generic environmental claims, compensation-based
climate neutrality claims, non-certified sustainability labels, as well as the rules on
consumer reviews and planned obsolescence (cf. Annex I Nos. 6, 7, and 8).

6. Contracts, subscriptions, and automated systems

Regarding online contracts, subscriptions, and automated systems, the practical
impacts of the current draft are likely to be particularly significant:
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• Free trial periods: Reminder before expiration and explicit consent to continue
for a fee; if this is missing, the consumer is not bound (Art. 20 DFA).
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• Automatic renewal: Reminder obligations before the renewal of long-term and
shorter contracts (Art. 21, 22 DFA). For indefinitely renewed contracts, the
consumer can terminate at any time with a notice period of no more than one month.
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• Termination and withdrawal functions: Mandatory, clearly labeled (e.g.,
"Confirm contract termination" or similar) and with a confirmation step as well as
a receipt confirmation (Art. 23, 24 DFA). The "termination button" known from Germany
would thus be Europeanized and – as far as can be seen – expanded in its scope
summarized.
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• Human contact: Anyone offering online customer service must, upon request,
and if other means are ineffective, provide a human contact person for
assistance (Art. 25 DFA).
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• AI agents: Consumers must be able to determine at the outset whether they want to confirm every contract,
specific contracts (e.g., up to a maximum price), or none at all;
payments or conflicts of interest involving the system operator must be disclosed.
Providers may not force consumers to use automated systems (Art. 26, 27
DFA).

The provisions in Chapter III on digital fairness are safeguarded by an anti-
circumvention clause that covers any behavior that undermines the effective compliance with
obligations – including through behavioral techniques or interface design (Art. 29 DFA).

III. Classification within the UWG: The DFA as a flanking measure, not a reinvention

Much of what the DFA is intended to codify may already be inadmissible under current law,
depending on the individual case. While the UWG does not use the term "dark patterns," it can
address their manifestations through, for example, Section 5 (1) UWG (misleading practices), Section 5a (4) UWG (omission of
commercial intent), and, above all, Section 4a (1) sentence 2 no. 3 UWG (undue influence
by exploiting a position of power over consumers to significantly impair their
decision-making process). For instance, the Higher Regional Court (OLG) of Bamberg, in the decision
mentioned above, classified countdown and scarcity displays in ticket sales as aggressive commercial practices under Sections 3 and 4a UWG by drawing on
Article 25 DSA and granted a consumer association a claim for injunctive relief (cf. OLG Bamberg GRUR-RS
2025, 6221, para. 23-27). The court applied the principles of the DSA directly to the UWG: A
violation of Article 25 (1) and (3) DSA is considered unfair as a breach of professional diligence
within the meaning of Section 3 (2) UWG (cf. OLG Bamberg GRUR-RS 2025, 6221, para. 23-27).
The ECJ also clarified in the "Compass Banca" case (judgment of Nov. 14, 2024, C-646/22)
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that the definition of the average consumer does not preclude the possibility that the decision-making capacity of a
consumer may be impaired.
a person can be impaired by limitations such as cognitive biases, and
thus provides a perfect starting point for addressing behavioral economic manipulation (see
Rott, Dark Patterns, the Digital Services Act and unfair competition law, VuR 2025, 216, 217).
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Nevertheless, there are gaps in protection: the UWG only covers market-related impairments of
freedom of choice. Dark patterns without a sufficient market connection remain outside its
scope of application (see Guillaume, Dark Patterns as a dogmatic challenge to
(unfair competition) law, EuZW 2026, 822, 823). And the relationship between the DSA and unfair competition law is
unclear: Art. 25(2) of the DSA excludes practices that fall within the scope of the UCP Directive or the
GDPR from the DSA prohibition, which raises significant questions of demarcation in practice (see
Rott, Dark Patterns, the Digital Services Act and unfair competition law, VuR 2025, 216, 217). The
Commission's fitness check therefore suggested supplementing the prohibited practices under the UCP Directive and
clarifying the relationship between the DSA and the UCP Directive. This is precisely where the
EU Commission's DFA proposal comes in. However, critics point out that this entails the risk
of double regulation (see Hentsch/Rodenhausen, Games and the Digital Fairness
Act, MMR 2026, 721, 722).

IV. Who is addressed?

The scope of the DFA is broad and, according to the draft, generally covers every natural
or legal person acting in the course of their trade, business, craft, or
profession in a digital context towards consumers (B2C).
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The term "trader" (Art. 3(2) DFA) encompasses any
natural or legal person acting for commercial purposes, as well as anyone acting on their
behalf or under their instruction. The DFA thus addresses a wide range of market participants
along the digital value chain, including:

• Influencers and content creators as independent entrepreneurs – even if they do not
sell anything themselves.
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• Brands and agencies that use influencer marketing. They must ensure, either contractually or,
if no contract exists, by other appropriate means, that the
influencer complies with the requirements (Art. 11 para. 6 DFA). Outsourcing this responsibility
is not permitted. This goes beyond previous case law regarding liability and
accountability under the UWG (German Act Against Unfair Competition).
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• Advertising service providers: According to the recitals, the bans on personalized advertising
are also intended to apply to providers of advertising services that select targeting,
provide data, or display ads.
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• Platform and marketplace operators as well as operators of search functions, for whom further
transparency obligations (such as regarding ranking parameters and trader status) exist.
The relationship with the DSA is regulated in Art. 4 DFA: specific provisions take precedence; Art. 12
DFA does not apply to online platforms that are subject to the DSA.
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• Providers of automated contract systems, which have their own obligations to disclose
conflicts of interest and ensure parameterizability.
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• Providers not established in the EU, insofar as they target consumers in the EU.
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• Software suppliers and service providers: If a business is held liable,
it can seek recourse under Article 36 of the DFA from contractual partners who have contributed
to the violation. This underscores the importance of careful contract drafting in relationships with
agencies, UX service providers, and tool vendors (though this does not apply to free open-
source software).

For B2B relationships, however, the UWG continues to apply, with the result that different standards
may apply to the same design, depending on whether the offer is directed at consumers or at
other market participants. Those addressing both consumers and businesses should
evaluate now whether separate interfaces or a unified, stricter design approach is more
sensible.

IV. Practical implications: What clients should do now

Even though the DFA is not yet in force, the direction of regulation is clear, and the
enforcement practices of courts and consumer associations are already trending toward
full harmonization.
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We therefore recommend that e-commerce companies, digital platform operators, app/game developers,
and digital marketing professionals do not wait. Anyone developing new
products, interfaces, or subscription models today is developing them for the era after the
DFA becomes applicable. In light of the draft regulation, we believe the following points
are particularly relevant:

• Identification: Companies should assess whether and to what extent they will be affected by the DFA
could. The addressees are explicitly not just platforms within the meaning of the DSA, but all
types of businesses. In practice, this primarily affects companies with digital
customer contact.
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• Design audit: Existing user interfaces, ordering and cancellation processes, as well as
consent banners should be reviewed against the dark pattern list in Annex I Part III and the obligations under
Art. 10 and 17. Many of these practices are already challengeable under current
UWG (Unfair Competition Act); however, the blacklist removes the ability for companies to rely on a
case-by-case assessment. In view of Art. 34 DFA, it is also recommended to maintain a
traceable documentation of design decisions and their impact on the
User behavior.
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• Personalization and pricing: Algorithms for content personalization,
recommendations, and pricing should be documented and specifically reviewed for the exploitation of
vulnerable groups (age, financial situation, addictive behavior).
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• Influencer contracts: Contracts with influencers and agencies should include clear
disclosure requirements ("advertisement" or "sponsored," even when products are provided without
monetary payment), indemnification clauses, and training requirements. Even without a
contract (e.g., in the case of product shipments), appropriate measures are required under Art. 11 (6) of the DFA.
measures.
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• Contract and cancellation design: Free trial conversions, reminders, cancellation functions,
and customer service should be set up so that signing up and canceling are equally
easy. Significant adjustments are to be expected here, which will require technical lead time.
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• Supply chain: Contracts with agencies, tool providers, and platform operators should include provisions regarding
DFA compliance and recourse.
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• Monitoring: The legislative process is dynamic; companies should keep an eye on the trilogue between the
Commission, Parliament, and Council, as well as the Commission's guidelines for further clarification,
in order to identify adjustment paths and transition periods at an early stage. Given
the sometimes unclear scope of the terms, the courts will also be called upon to provide
legal certainty.

V. Conclusion: More fairness for consumers – more requirements for companies

The current proposal for the Digital Fairness Act introduces another extensive
regulatory framework for the digital economy, with a primary focus on product design.
It extends the protection standards established by the DSA for platforms across the entire
digital B2C customer relationship. Much of this is already prohibited under current German
unfair competition law, but the DFA provides clarity, EU-wide consistency, and likely
stricter sanction and enforcement mechanisms. Companies in digital commerce should take this
opportunity to review their interfaces, personalization models, and marketing practices for
"digital fairness" now. We would be happy to advise you on this – from designing
legally compliant user interfaces and influencer contracts to the strategic
integration of the DFA into your compliance structure.