Digital Fairness for Consumers
Authors: Helberger Natali , Kas Betül , Micklitz Hans-W. , Namysłowska Monika , Naudts Laurens , Rott Peter , Sax Marijn , Veale Michael 
Published: November 2024

The EU Digital Policy Legislation, built around 12 different legislative acts,1 is by and large basedon the premise that the existing consumer law acquis suffices to cover potential risks to healthand safety as well as to the economic interests of consumers. The various legal acts alreadyadopted or in the process of being adopted are only occasionally and, if so, in a quite erratic way,dealing with consumer issues. The EU Consumer Protection 2.0 study, equally commissionedby BEUC and written by Helberger, Lynskey, Micklitz, Rott, Sax, Strycharz in 20212 provided fora first account of the potential deficit and proposed a potential remedy to rethink the existingconsumer acquis in light of ‘structural, architectural and universal vulnerability’, to be trans-lated into the legal concept of ‘digital asymmetry’.In reaction to the widely voiced critique of consumer protection deficits in EU Digital Pol-icy Legislation, the European Commission launched the ‘Digital Fairness – Fitness Check onEU Consumer Law’ in May 2022.3 This fitness check would ‘look at the following pieces of EUconsumer protection legislation to determine whether they ensure a high level of protectionin the digital environment: the Unfair Commercial Practices Directive 2005/29/EC, the Con-sumer Rights Directive 2011/83/EU, the Unfair Contract Terms Directive 93/13/EEC.’ It has tobe applauded that the European Commission is ready to take up the challenge and to initi-ate a debate on ‘digital fairness’. The here presented study on ‘Digital Fairness for Consumers’has to be placed into the context of the EU digital fairness test, which will not come to an endin the van der Leyen Commission, but which will, in all probability, have to be continued afterthe next elections of the European Parliament.The authors hope to initiate a broader discussion on what digital fairness might mean andhow digital fairness can be anchored in the EU consumer law. Limiting digital fairness to threepieces of EU legislation is certainly not a promising avenue. The EU Digital Policy Legislationcuts across the consumer law acquis as a whole and would require to evaluate each and everypiece of the consumer law acquis. The question to be studied is whether the European con-sumer law acquis, which was developed under a political agenda which dates back to thefamous Kennedy Declaration 1962 and a different industrial economy, can handle the risksand problems consumers might face in the exponentially developing digital economy, whichreaches beyond the linear thinking of human mankind. In that sense, the findings should be understood as the first building block in an ongoing process to find appropriate answers notonly for consumer protection but for society at large.The regulatory background results from the analysis of the DSA and the AIA Proposal, whichserves as a common background for existing and upcoming consumer problems, are to beelaborated. The authors, together with Kasper Drazewski and Ursula Pachl from BEUC, decidedjointly to focus on six building blocks of relevance to consumers:1. 2. 3. 4. 5. 6. DIGITAL VULNERABILITY AND MANIPULATION IN THE EMERGING DIGITALFRAMEWORK, by Natali Helberger, Marijn Sax, Michael Veale;TOWARD CONSTRUCTIVE OPTIMISATION: ALIGNING THE RECOMMENDER STACKUNDER EUROPEAN LAW, by Laurens Naudts, Natali Helberger, Marijn Sax, MichaelVeale;DISSOLUTION OF EU CONSUMER LAW THROUGH FRAGMENTATION ANDPRIVATISATION, by Hans-W. Micklitz;ENSURING DIGITAL FAIRNESS IN EU CONSUMER LAW THROUGH FUNDAMENTALRIGHTS: IS THE EU CHARTER FIT FOR PURPOSE?, by Betül Kas;FUTURE-PROOFING THE UNFAIRNESS TEST, by Monika Namysłowska;BURDEN OF PROOF, by Peter Rott.All six building blocks follow a comparable structure. The first step is to analyse the impactof the digital economy in light of the EU Digital Policy Legislation and the consumer acquiswith regard to the identified six major policy issues: the impact on digital vulnerability (1), theimpact on recommender systems (2), the impact on the notion of the consumer and the obli-gations imposed on the provider of AI systems (3), the impact on fundamental rights (4), theimpact on the unfairness test in the Unfair Commercial Practices Directive (5) and last but notleast the impact on the distribution of the burden of proof (6). The second step is to come upwith conclusions, broader observations and concrete recommendations, aiming at providingguidance on the kind of action the European Commission should take.The six building blocks reveal tendencies which demonstrate that there is indeed a rupture4taking place in the digital economy, which shatters established wisdoms in the design and under-standing of consumer law. The first is the vanishing line between the consumer and the citizen.The second is the privatisation of consumer law through the space given to the AI industry todevelop a design whose complexity can only be revealed by breaking up the different stacksbehind the design, a space which is framed by a broad set of due diligence obligations, broadlyworded in EU Digital Policy Legislation and concretised through EU driven private regulation.The third is the lack of value-based guidance despite all the rhetoric on ‘human-centric, secure,ethical and trustworthy AI’. EU Digital Policy Legislation claims to fill the gap through exten-sive reference to the EU Charter on Fundamental Rights and more implicitly than explicitlythrough the unfairness test of the UCPD as a safety net. However, it turns out that fundamentalrights are a placeholder for everything and nothing, of extremely limited use under the exist-ing state of case-law of the CJEU and the ECtHR. The unfairness test enshrined in Art. 5 UCPD,on the other hand, lacks the necessary concreteness of legal requirements, which could deal with digital vulnerability or with the stacks behind the recommender system. The fourth is thetotal neglect of the knowledge gap between the consumer/citizen and the provider of an AIsystem regarding the digital architecture, which renders the enforcement of consumer rightsunder the existing acquis difficult, if not impossible. The classical distribution of the burden of proof between the consumer, or consumer organisations, and the trader, relied on in theindustrial economy, except for product liability and anti-discrimination, must be questioned in the digital economy.The authors propose to discuss the possible implications of the findings with a view to developing a ‘Digital Fairness Act’. While the authors claim to address at least the most importantpolicy fields and consumer problems, they certainly do not claim to exhaust the strive fordigital fairness. This is true not only with regard to substance, which would mean analysing allthe Directives and EU Regulations one by one, and evaluating their suitability, but in particularwith regard to the enforcement of the consumer acquis in the digital economy. Enforcementis the elephant in the room. There is evidence that the current enforcement structure, set upby GDPR, the DMA, the DSA and transplanted into the pending EU proposals, in particular theAIA, is hardly suitable to cope with pressing political problems, such as the protection of children against all sorts of problematic practices offered by the online platforms.