Helberger, N., H.-W. Micklitz & P. RottThe regulatory gap: Consumer protection in the digital economy


Autorinnen und Autoren:
Natali Helberger, Hans-W. Micklitz & Peter Rott

Dezember 2021

The European Consumer Oragnization BEUC, Bericht

In 2020, BEUC commissioned a research study entitled EU Consumer Protection 2.0: Structural asymmetries in digital consumer market. In that work, the authors developed the concept of digital vulnerability translated into the legal concept of digital asymmetry. The report concludes with recommendations from a broad perspective, with an emphasis on data privacy policies and unfair commercial practices. Within less than half a year, the European Commission published four proposals which will shape the digital market in the EU for the years to come. These are, in chronological order:

  • The Digital Governance Act (DGA)
  • The Digital Market Act (DMA)
  • The Digital Services Act (DSA)
  • The Artificial Intelligence Act (AIA)

Two further initiatives have been announced but have not yet led to a proposal for legislative

  • The proposal for a Data Act including the review of the Directive 96/9/EC on the legal protection of databases is announced for November 2021. It is about fairness in the allocation of economic value among actors of the data economy.
  • Still pending and without a concrete timeline, there might be a proposal for an AI Liability Act. The theoretical and conceptual political debate is quite advanced, though.

The authors are not aware of any plans of the European Commission to update and adapt the consumer law acquis. So far, the European Commission seems to be in an evaluation process, seemingly relying on revised guidelines on Directive 2005/29/EC which aim at clarifying the potential impact of the UCPD on highly conflictual strategies such as dark patterns or on whole business models such as personalized advertising.

The current guidelines date back to 2016. Implicit to such thinking is the assumption that the current consumer acquis suffices to handle the new challenges. In the light of the powerful initiative of the European Commission to lay down a framework for the digital economy that attracted political and academic attention worldwide, it is all the more important to investigate whether and to what extent the four proposed acts altogether – in the following simply 'the Four' – include the consumer perspective and the level of protection offered to consumers vis-à-vis digital market practices that create or abuse structural, relational or informational vulnerabilities. In consumer advocacy, there is a certain tendency to focus on the AIA. Whilst this is undoubtedly necessary, such a rather limited focus falls short of placing the consumer in the much broader framework that the EU is about to establish and that will in all probability design the digital markets in the EU for many years to come.

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