EUU, Alm.del - 2022-23 (2. samling) - Bilag 443: Notat samt høringssvar vedr. evaluering af EU’s forbrugerlovgivning

Europaudvalget 2022-23 (2. samling)
EUU Alm.del Bilag 443
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Date: May 1. 2023

The Danish Government’s response to the Commission’s fitness check on EU Consumer Law

on Digital Fairness

The Danish Government welcomes the Commission’s decision to initiate a fitness check of EU

Consumer Law on digital fairness and appreciates the opportunity to elaborate on how EU consumer

law can handle new challenges arising especially from the increasing digitalization of our society.

While data driven business models can lead to more optimized user experiences, we also see a risk

that traders continuously update their interfaces to ensure further engagement by consumers through

retention mechanisms, online choice architecture and other types of personalized persuasion prac-

tices. This also happens offline, but in a data-driven environment it can become more and more

challenging for consumers to make informed choices. This only heightens the need for effective

enforcement, however, the ever-evolving development within new data-driven business models can

make it difficult for authorities to ensure and secure effective enforcement of the consumer legisla-

tion.

Given this, the Danish Government recommends the Commission to look into interactions between

traders controlling data and consumers in order to assess the process of obtaining a legal ground of

data processing. Furthermore, the Commission is recommended to look into how pre-contractual

arrangements are influenced by technological design techniques. A solution is most likely found in

the correlation between the GDPR, the ePrivacy rules and the consumer protection rules. However,

a consolidated approach is needed to tackle the way in which traders operate when building their

interface and constructing the manner in which users will engage with their platform. This means

recognizing data-driven business models as the new normal, when referring to the economic behav-

ior of a trader and it also means recognizing the use of algorithms as an integral and main driving

force for the way platforms interact with consumers today. Given this fact member states and the

Commission alike need to rethink the way we approach and address particularly the tech giants given

their mounting influence in our society today.

Moreover, the Danish Government is particularly concerned with the protection of minors and harm-

ful commercial practices in the digital environment that do not take into account the vulnerabilities

of young consumers. With regards to gaming and social media, the emergence of virtual currencies,

in-app micro-transactions and loot boxes offers new challenges to ensure consumer protection

online. Persuasion techniques and personalization are also prevalent in videogames. The legal frame-

work should therefore also be clarified with this sector in mind.

The Danish Government supports the Commission’s ambition to further outline how online com-

mercial practices are adequately addressed with the EU consumer rules. In relation to this, the Com-

mission should in particular consider which regulatory tools are best suited to address these practices

and especially how the rules simply and effectively can support the efforts of enforcement authori-

ties. This also means ensuring that the scope of the legal acts are clear and that the legislation is

EUU, Alm.del - 2022-23 (2. samling) - Bilag 443: Notat samt høringssvar vedr. evaluering af EU’s forbrugerlovgivning

easily manageable for enforcement agencies and the judiciary, when handling concrete cases. This

could be achieved by incorporating the Commission’s guidance on the scope into the legal acts. This

includes looking into whether the current disclosure requirements are serving their purpose and

whether evidence of actual effect on consumers should play a bigger role, when the Commission

consider introducing new disclosure requirements. Equally the Danish Government encourages the

Commission to look into the possibility of reversing the burden of proof in areas, where there is a

significant digital asymmetry to the detriment of the consumer. This could help alleviate enforce-

ment agencies. Furthermore, the fitness check should investigate the interplay between the consumer

law and the many new legislative initiatives in the digital area, including the AI Act, the AI liability

directive, the Digital Services Act, the Cyber Resilience Act and the Data Act. These acts all have

as their aim to ensure effective competition, consumer safety and security and protection of funda-

mental rights. It is vital that overlaps as well as gaps are avoided, and that the enforcement of the

acts are undertaken in a coherent manner. The fitness check should hence take a holistic approach

to the legislation impacting consumer welfare in a digital environment.

The Danish Government further encourages the Commission to look into new digital trends as dig-

ital commercial environments will continue to develop at an ever-growing pace and technological

progress can bring new challenges. In the near future, Artificial Realities such as Metaverse will

most likely become more prevalent. Artificial intelligence, virtual, augmented and extended reality,

cryptocurrency and other technological changes will create new challenges such as interaction with

deepfakes, avatars and robots with lack of transparency as one consequence. Within these new real-

ities, enforcement agencies will most likely have to adapt their tools of investigation and identifica-

tion of violations through a machine-based approach, such as web crawling. This will most likely

also be necessary to keep up with a growing number of cases in the online world. From a legislative

perspective, the Commission should examine whether well-established rights for the consumer are

covered in these new domains within the current and upcoming legislation. When the consumer

legislation is only revised occasionally, there is a risk that the legislation is only adjusted to existing

harmful commercial practices without paying attention to coming trends. The Commission should

therefore conduct fitness checks in this area on a regular basis to capture new harmful commercial

practices in the digital environment.

Likewise, digitalization has contributed to the development and propagation of for instance sub-

scription-based products and services. The Commission is encouraged to address issues of consumer

inactivity in such contracts.

Further, the Commission is encouraged to evaluate whether to introduce a “black list” and new re-

quirements regarding unilateral changes of contract terms in the Unfair Contract Terms Directive.

In addition, the Commission may evaluate whether relevant case law from the European Court of

Justice regarding the Unfair Contract Terms Directive should be codified with the aim of strength-

ening the legal clarity of the directive.

Finally, the Danish Government encourages the Commission to continue its focus on behavioral

insights, when analyzing problems and designing solutions to the consumer legislation.

Enclosed you will find the Danish Governments recommendations for the digital fitness check. The

Danish Government will be at your disposal for any questions or comments to the recommendations.