Liberties has responded to the EU’s call for evidence for the Digital Fairness Fitness Checkin order to urge policymakers not to undermine fundamental rights protections in a misguided attempt to help businesses.
Europe’s Digital Rules Under Review
The European Commission has launched a Digital Fairness Fitness Check, a broad evaluation of how EU consumer protection rules function in the digital economy. Part of the process involves a “call for evidence” consultation, which Liberties responded to with our own analysis.
Conducted under the EU’s Better Regulation agenda, the Digital Fairness Fitness Check assesses whether existing legislation still achieves its objectives and remains effective in a rapidly changing technological environment.
However, Liberties warns that the debate around “simplifying” digital rules risks being used to justify weakening fundamental protections rather than improving their implementation.
What does the Fitness Check evaluate?
The Digital Fairness Fitness Check focuses on three key EU consumer protection directives: the Unfair Commercial Practices Directive, the Consumer Rights Directive, and the Unfair Contract Terms Directive. Together, these laws form the backbone of EU consumer protection, setting rules that most businesses must follow when dealing with consumers.
The evaluation examines whether these directives remain effective in the digital environment. Following the EU’s Better Regulation methodology, the Commission assesses five criteria: effectiveness, efficiency, relevance, coherence, and EU added value. In practice, this means analysing whether the laws achieve their objectives, whether they remain proportionate, and how well they interact with other EU legislation.
The review also feeds into discussions about possible future measures, including a potential Digital Fairness Act, which could address emerging online practices that existing rules may not fully cover.
Problematic practices in the digital economy
The Commission’s evaluation highlights several digital practices that raise concerns for consumers. Among the most prominent are dark patterns, design techniques that manipulate users into making choices they might not otherwise make. These can include fake countdown timers that create a sense of urgency, confusing interface designs, or repeated prompts that pressure users into agreeing to certain options.
Subscription-based services and “freemium” models also present challenges. Consumer surveys conducted during the Fitness Check show that many users struggle to cancel subscriptions, while others report that free trials are automatically converted into paid services without clear consent.
Other concerns include the design of digital products that encourage excessive use, such as autoplay features or reward systems, and the increasing use of personal data to personalise advertising, recommendations, or pricing. While such practices can offer convenience, they also raise concerns about manipulation and privacy.
How does this relate to the EU’s digital rulebook?
The Fitness Check takes place alongside the EU’s broader digital regulatory framework, including Digital Services Act (DSA), Artificial Intelligence Act(AI Act), General Data Protection Regulation (GDPR), and the ePrivacy Directive. These laws address risks related to online platforms, digital markets, and AI systems, including the use of manipulative interface designs by large platforms.
However, the Commission notes that consumer law remains essential because these rules do not apply to all businesses. The Fitness Check therefore examines how the existing consumer protection framework interacts with this expanding digital rulebook.
Looking Ahead
Liberties argues that the EU’s digital legislation should not be an administrative burden but an expression of the Charter of Fundamental Rights of the European Union, which guarantees rights such as privacy, data protection, and freedom of expression.
From this perspective, the challenge facing the EU is not the number of rules but the lack of effective enforcement. Civil society groups point to uneven implementation of existing laws and limited resources for regulators as the real obstacles to protecting consumers and ensuring fair competition.
Rather than reopening major digital laws, they argue that the Commission should focus on:
- Rejecting any current and future proposals to weaken EU rights-based digital frameworks under the guise of simplification, such as the AI Omnibus and the Omnibus that impacts the GDPR and the ePrivacy Directive.
- Prioritising enforcement reform of GDPR, DSA, DMA, AI Act, and ePrivacy, including resourcing of supervisory authorities.
- Improving cross-border coordination and procedural effectiveness among national authorities.
- Undertaking a fundamental rights impact assessment and meaningful consultation processes ahead of any future regulatory changes impacting digital legislation.
Read the full response of Liberties here.
