Opinion of the Regulatory Scrutiny Board
Date: 2024-10-03
Institutions: European Commission, Regulatory Scrutiny Board
Subjects: consumer information, consumer law, digital contract, digital economy, digital single market, digital transformation, electronic commerce, regulatory policy, unfair terms of contract

EUROPEAN COMMISSION

Brussels, 3.10.2024 
SEC(2024) 245 final

REGULATORY SCRUTINY BOARD OPINION

Fitness check on Consumer Law of Digital Fairness

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EUROPEAN COMMISSION
Regulatory Scrutiny Board

Brussels, 
Ares(2024)

Opinion

Title: Fitness check on Consumer Law of Digital Fairness

Overall 2nd opinion: POSITIVE WITH RESERVATIONS

(A) Policy context

EU consumer protection laws aim to empower consumers to play an active role and fully 
benefit from the Digital Single Market. There are concerns that new technologies and data 
driven practices  are used to undermine consumer choice  and  to influence them  to  take 
decisions that go against their interests. The Fitness Check aims to determine whether the 
existing key horizontal consumer law instruments remain fit for purpose. It covers: Unfair 
Commercial  Practices  Directive  2005/29/EC  (UCPD);  Consumer  Rights  Directive 
2011/83/EU (CRD); Unfair Contract Terms Directive 93/13/EEC (UCTD) as well as the 
latest changes to these Directives in 2022 by the Modernisation Directive.

(B) Summary of findings

The Board notes the improvements made to the report. 

However,  the  report  still  contains  significant  shortcomings.  The  Board  gives  a 
positive opinion with reservations because it expects the Lead Service to remedy the 
following aspects:

(1) The  limitations  of  the  evidence  base are  not  sufficiently  reflected  in  the
conclusions.  The  lessons  learned  on  the  need  to  improve  the  monitoring  and
evidence collection processes are not sufficiently developed.

(2) The  approach  and  assumptions  used  to  estimate cost  to  business  are  not

sufficiently justified.

________________________________
This opinion concerns a draft fitness check which may differ from the final version.

Commission européenne, B-1049 Bruxelles - Belgium. Office: BERL 08/010. E-mail: regulatory-scrutiny-board@ec.europa.eu

(C) What to improve

(1) The  report  should  explicitly  acknowledge  the  limitations  and  uncertainties  of  the
evidence and the sources of the data in the conclusions. The fact that the quantitative analysis
is mainly founded on opinion-based data as well as the difficulties in isolating and attributing
the impacts directly to the Directives and how this affects the quantitative results should be
explained clearly in the main report. Any conclusions stated should not go beyond what is
clearly supported by the empirical analysis.  In the absence of credible analysis of attribution,
the  report  should  refrain  from  making  statements  and  conclusions  that  imply  that  the
attribution was established. Given the limitations, the report should also refrain from stating
or suggesting that the evidence base is robust. The report should better explain how efficiency
can be considered “positive” in light of “limited” effectiveness.
(2) The  lessons  learned  on  the  need  to  improve  the  monitoring  and  evidence  collection
processes should be further developed. The report should state what data will be needed to
better monitor, assess and demonstrate causality of impacts. Apart from quantitative data, the
report  should  deepen  the  need  assessment  of  qualitative  data,  in  particular  related  to  the
factors  impacting  low  compliance  by  businesses  and  insufficient  enforcement  by  relevant
authorities.  The  lessons  learned  should  also  reflect  the  need  for  a  credible  baseline  in
particular regarding indicators in order to allow for monitoring of developments. The need
for evidence regarding identified problematic practices should be better developed.
(3) The report should further explain and better justify the approach to the estimation of the
cost to business. It should be clear how companies surveyed have been selected and to what
extent it is possible to extrapolate the survey results to the whole digital economy considering
its high heterogeneity. The approach to extrapolation should be better developed in particular
given  that  the  majority  of  companies  indicate  low  costs  and  considering  the  resources
deployed by the companies. The report should justify all the assumptions related to business-
as-usual activities which seem to be in contradiction to the business stakeholder evidence.
Given the stability of EU consumer law and the absence of reporting requirements, the report
should  also  better  explain  why  companies  need  to  check  compliance  with  consumer
Directives annually.
(4) Given  that  the  analysis  of  the  enforcement  deficit  rests  mainly  on  the  Consumer
Protection  Cooperation  network,  the  report  should  also  assess  the  links  between  national
consumer  protection  practice  and  capacities  and  the  effectiveness  of  the  Directives.  The
report should analyse the costs to national authorities in particular related to inspections and
complaint handling.
(5) Regarding  the  estimation  of  consumer  detriment,  the  report  should  better  explain  the
limitations regarding the use of perceived problems (opinion data) as a proxy for complaint
incidence rate.

(D) Conclusion

The  Lead  Service  should  revise  the  report  before  launching  the  interservice 
consultation. 

Full title 

Fitness Check on Consumer Law of Digital Fairness 

Reference number 

PLAN/2022/561 

Submitted to RSB on 

1 July 2024 

Date of RSB meeting 

Written procedure 

2 

EUROPEAN COMMISSION
Regulatory Scrutiny Board

Brussels, 
Ares(2024) 

Opinion

Title: Fitness check on consumer law of digital fairness

Overall opinion: NEGATIVE

(A) Policy context 

EU  consumer  protection  laws  aim  to  empower  consumers  to  play  an  active  role  and  fully 
benefit from the Digital Single Market. There are concerns that new technologies and data-
driven practices are used to undermine consumer choice and to influence them to take decisions 
that go against their interests. 

The  Fitness  Check  aims  to  determine  whether  the  existing  key  horizontal  consumer  law 
instruments  remain  fit  for  purpose.  It  covers:  Unfair  Commercial  Practices  Directive 
2005/29/EC (UCPD); Consumer Rights Directive 2011/83/EU (CRD); Unfair Contract Terms 
Directive 93/13/EEC (UCTD) as well as the latest changes to these Directives in 2022 by the 
Modernisation Directive. 

(B) Key issues

The  Board  notes  the  additional  information  provided  and  commitments  to  make 
changes to the report.

However, the Board gives a negative opinion because the report contains the following 
serious shortcomings: 

(1) The report is not sufficiently clear about the robustness of the evidence base. Its 
methodological  approach  has  significant  shortcomings  in  terms  of  points  of 
comparison and attribution.   

(2) The  report  is  not  clear  on  the  existence  and  size  of  the  gap  between  existing 
consumer  legislation  and  the  digital  acquis  nor on  the  scale  and  development  of 
problems  identified.  The  report  does  not  sufficiently  identify  and  analyse 
enforcement  deficits  and  does  not  address  the  role  that Member  States  national 
rules and their administrative capacities play.  

(3) The impacts of consumer law on businesses and SMEs are not sufficiently clear.
Cost estimates and the simplification potential are not sufficiently addressed.   

The Board considers that in its present form, this report does not provide appropriate input 
for any forthcoming related impact assessment/policy initiative. 

________________________________   
This opinion concerns a draft fitness check which may differ from the final version.

Commission européenne, B-1049 Bruxelles - Belgium. Office: BERL 08/010. E-mail: regulatory-scrutiny-board@ec.europa.eu

(C) What to improve 

(1)  The description of the evidence base requires significant improvement so that it is clear 
how robust and representative the evidence is. In this respect, the report should clarify what 
data  is  statistically  representative  and  how  it  was  analytically  quality  assured.  The 
representativeness  of  the  pre-established  large-scale  panel  used  for  the  consumer  survey 
should  be  better  explained.  The  report  should  critically  assess  the  limitations  and 
uncertainties of the evidence and the sources of the data, in particular perception based, and 
how this may affect the quantitative results. Any quantitative analysis and reporting of non-
representative  data  based  on  small samples should be done with utmost  caution and only 
where appropriate. It should include and compare the perception based data with other types 
of data, such as complaints data on revealed preferences in actual transactions. 

(2)  The report should clearly identify, with concrete evidence where already available, the 
scale of the remaining gap between the consumer legislation covered by the report and the 
evolving digital acquis. Where there are gaps in evidence due to the evolving situation, this 
should be explicitly mentioned, along with the need to undertake further analysis in view of 
potential new initiatives. It should explain to what extent new obligations imposed under the 
Digital  Markets,  Digital  Services  and  other  recent  Acts  may  tackle  part  of  the  emerging 
problematic digital practices faced by consumers, for instance via obligations imposed on 
major  gatekeeper  platforms.  In  relevant situations, the report should clearly delineate and 
analyse the scale of the “residual” problem, e.g., the scale of the problem outside of the major 
gatekeeper platforms.  

(3)  The report should significantly improve the analysis so that it is clear what has happened 
in the evaluation period (2017-2023). It should identify appropriate points of comparison and 
explicitly  reference  how  much  change has happened relative to those points. It should be 
clear how much change can be attributed directly to the three Directives in scope and to what 
extent this change meets the original expectations. 

(4)  The  estimates  of  the  consumer  detriment  should  be  better  explained  and  evidenced 
including the key assumptions (in particular the assumption of the 30% of EU consumers 
experienced problematic practices in 2023). The estimated consumer detriment should not 
be  regarded  as  a  cost  to  consumers  due  to  the  legislation,  but  the  analysis  should  show 
whether it has increased or decreased (and by how much) in the evaluation period relative to 
the point of comparison. 

(5)  The report should be more explicit on the relative scale and the relative importance of 
the problems.  It  should  place  the  estimates  of the consumer detriment  and the number of 
consumer  complaints  in  the  right  context.  In  doing  so,  it  should  assess  the  scale  of  the 
problem  relative  to  the  overall  consumer  spending  in  the  digital  economy  so  that  the 
magnitude  of  problematic  consumer  transactions  becomes  more  apparent.  It  should 
demonstrate how the problem has evolved over time, for instance, by comparing the growth 
rate of the e-commerce / services sectors with the share of consumer complaints.  

(6)  The report needs to better address the issues of unavailability of robust evidence based 
on  quantitative  non-opinion  data.  Regarding  emerging  problems,  the  report  should  better 
analyse  the  severity/harm,  e.g.  related  to  mental  health  and  other  aspects  of  consumer 
detriment beyond direct financial losses. In case relevant data or evidence is not available 
the report should clearly outline the evidence gaps and could propose steps towards collecting 
the needed evidence.   

(7)  The report should analyse and take into account differences between Member States. It 
should explain whether the consumer survey results, and other stakeholder feedback showed 
any significant differences regarding the relative scale of the explored problematic practice 
and if so, explain the reasons behind (e.g., differences in the national consumer protection 

 
frameworks) and how this may affect the attribution of the observed problematic practices 
to the three directives in scope.  

(8) The  report  should  clarify  to  what  extent  insufficient  enforcement  reduces  the
effectiveness  of  existing  regulation,  including  by  being  clearer  on  what  insufficient
enforcement in practice means and what should be considered as sufficient enforcement. In
this context, the report should better assess to what extent enforcement issues with the current
directives are linked to the administrative capacity issues and whether there are difference
across the Member States.

(9) The  report should significantly  deepen the  analysis  on  the  competitiveness and  SME
dimension. It should explain whether EU-based service providers, in particular SMEs, may
experience a competitive disadvantage compared to their third-country competitors. It should
assess  whether  the  existing  directives  have  affected  the  capacity  of  business  to  innovate,
when compared to practices observed outside the EU.

(10) The  cost  estimates  should  be  clearly  identified  indicating  the  methods  used.  The
simplification  potential  should  be  identified  precisely.  Stakeholder  views  should  be
presented in a more balanced manner throughout the report.

(11) The  conclusions  and  lessons  learned  sections  should  be  revised  to  accurately  and
objectively  reflect  the  amended  analysis  fully  taking  into  account  limited  robustness  of
underlying  evidence.  Overall,  the  report  should  refrain  from  statements  about  concrete
measures to be taken  as this is not the purpose of  a Fitness Check but  rather for  a future
impact assessment. The report should bring out more clearly lessons learned regarding the
evolving EU regulatory landscape in the digital area.

Some more technical comments have been sent directly to the author Service. 

(D) Conclusion

The lead Service must revise the report before launching the interservice consultation. 

The lead Service may resubmit to the Board a revised version of this report.  

Full title 

Fitness Check of consumer law on digital fairness 

Reference number 

PLAN/2022/561 

Submitted to RSB on 

25 March 2024 

Date of RSB meeting 

24 April 2024