Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting fair business-to-consumer commercial practices in the offline and digital single market, and repealing Directive 2005/29/EC (Digital Fairness Act)

Directive 2005/29/EC of the European Parliament and of the Council³¹ has established an overarching framework for the approximation of the laws of the Member States relating to unfair commercial practices in business-to-consumer transactions. Through the introduction of horizontal, principle-based and technology-neutral rules, Directive 2005/29/EC contributed to a high level of consumer protection, while facilitating a level playing field for businesses, thereby improving the proper functioning of the internal market. The objectives and principles of Directive 2005/29/EC remain sound.

The emergence of an increasingly data-driven economy, rapid technological developments, the growth of digital markets, and globalisation have created new challenges for the protection of consumers’ economic interests. While those developments have brought significant benefits to consumers, including greater choice and new ways of accessing goods and services, they have also exacerbated information and power imbalances between businesses and consumers. Online traders increasingly resort to commercial practices that exploit consumers’ cognitive biases and other vulnerabilities, harming their economic interests.

The 2024 Fitness Check of Union consumer law on digital fairness (‘the Fitness Check’)³² concluded that consumer law remains relevant and necessary to ensure a high level of consumer protection and effective functioning of the digital single market. However, its effectiveness in the digital environment is undermined, among other things by legal uncertainty, regulatory fragmentation and ineffective enforcement. The Fitness Check also identified certain problematic practices that are not subject to harmonised rules, giving rise to divergent regulatory solutions by Member States.

Legal uncertainty can partly be addressed by clarifying certain elements of the regulatory framework established by Directive 2005/29/EC, having regard to the case-law of the Court of Justice of the European Union (‘the Court of Justice’). In addition, new rules on digital fairness are needed to ensure that consumers are empowered and protected in digital markets and to facilitate traders’ cross-border activities in those markets.

Additionally, in light of evolving business models, particularly in digital markets, enforcement solely by Member States is no longer sufficient to address the challenges faced by consumers and compliant traders. It was therefore found necessary to empower the Commission under Regulation (EU) .../... of the European Parliament and of the Council on cooperation between national authorities and the Commission in the enforcement of consumer protection laws in the Union, amending Directive (EU) 2019/1937 and Regulations (EC) No 261/2004, (EC) No 1107/2006, (EC) No 1008/2008, (EU) No 1177/2010, (EU) No 181/2011, (EU) 2018/302 and (EU) 2021/782 and repealing Regulation (EU) 2017/2394 [New CPC Regulation] [New CPC Regulation] to directly investigate and enforce at Union level certain infringements of the rules on unfair commercial practices which have or risk to have a significant impact on the functioning of the internal market for consumers. As the Commission can enforce only provisions that are directly applicable in all Member States, the existing rules on unfair commercial practices and the new rules on digital fairness should be laid down in a regulation.

Laying down the rules contained in Directive 2005/29/EC in a regulation should neither diminish the high level of consumer protection ensured by that Directive nor require Member States to modify their existing enforcement structures, irrespective of whether such structures are based on administrative, private or criminal law enforcement.

The purpose of this Regulation is to lay down uniform rules on fairness for offline and online business-to-consumer commercial practices.

In order to support consumer confidence, this Regulation should apply equally to commercial practices which occur outside any contractual relationship between a trader and a consumer or following the conclusion of a contract and during its execution.

This Regulation should ensure a high level of consumer protection in all economic sectors by complementing sector-specific Union law. To ensure coherence with existing Union law, particularly where detailed provisions on business-to-consumer commercial practices apply to specific sectors, this Regulation should apply only in so far as there are no conflicts with specific Union law provisions regulating specific aspects of commercial practices. As interpreted by the Court of Justice, the concept of ‘conflict’ refers to a relationship between provisions which cannot be overcome by a unifying formula enabling both situations to exist alongside each other. Accordingly, a conflict between this Regulation and Union law provisions regulating specific aspects of commercial practices is present only where the provisions that regulate specific aspects of business practices impose on traders, in such a way as to leave them no margin for discretion, obligations which are incompatible with those laid down in this Regulation. This Regulation should also provide protection for consumers where there is no specific sectoral legislation at Union level. This Regulation should consequently complement the Union acquis, which is applicable to commercial practices harming consumers' economic interests.

In particular given the need to ensure the coherence of this Regulation with other relevant Union law in the field of regulation of online commercial practices, this Regulation should be without prejudice to Union legal acts that may apply to the commercial practices of traders in the online environment, such as Regulation (EU) 2016/679 of the European Parliament and of the Council³³, Regulation (EU) 2022/1925 of the European Parliament and of the Council³⁴, Regulation (EU) 2022/2065 of the European Parliament and of the Council³⁵, Regulation (EU) 2024/1689 of the European Parliament and of the Council³⁶, Regulation (EU) .../... of the European Parliament and of the Council EU KIDS ACT - 'EU Keeping Internet Digital Spaces Accountable and Trustworthy' [EU KIDS Act] and Directive 2010/13/EU of the European Parliament and of the Council³⁷.

The full harmonisation pursued through this Regulation should create a high common level of consumer protection. Unless authorised by this Regulation or the relevant sector-specific Union law, Member States should not maintain or impose further obligations on traders by way of laws, regulations or administrative measures to achieve a higher level of consumer protection.

This Regulation should be without prejudice to Union and national rules on contract law, on intellectual property rights, on the health and safety aspects of products, on conditions of establishment and authorisation regimes, including those rules which, in conformity with Union law, relate to gambling activities, and to Union competition rules and the national provisions implementing them. This Regulation should therefore not preclude Member States from retaining or introducing restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety of consumers in their territory wherever the trader is based, for example, in relation to alcohol, tobacco and nicotine products, or pharmaceuticals.

Financial services and immovable property, by reason of their complexity and inherent serious risks, necessitate detailed requirements, including positive obligations on traders. For this reason, in the field of financial services and immovable property, this Regulation should be without prejudice to the right of Member States to go beyond its provisions, in conformity with Union law, to protect the economic interests of consumers.

This Regulation should not address commercial practices carried out primarily for purposes other than influencing consumers’ transactional decisions in relation to products, including, for example, commercial communication aimed at investors, such as annual reports and corporate promotional literature. It does not address legal requirements related to taste and decency which vary widely among the Member States. Member States should accordingly be able to continue to ban commercial practices in their territory, in conformity with Union law, for reasons of taste and decency.

This Regulation should be without prejudice to Member States’ freedom to adopt national provisions to further protect the legitimate interests of consumers against unfair commercial practices in the context of unsolicited visits at their homes by a trader in order to offer or sell products or excursions organised by a trader with the aim or effect of promoting or selling products to consumers where such provisions are justified on grounds of consumer protection. Any such provisions should be proportionate and non-discriminatory and should not prohibit those sales channels as such. National provisions adopted by Member States could, for example, define time of the day when visits to consumers’ homes without their express request are not allowed or prohibit such visits when the consumer has visibly indicated that such visits are not acceptable or prescribe the payment procedure. Member States should be required to notify any national provisions adopted in this regard to the Commission so that the Commission can make this information available to all interested parties and monitor the proportionate nature and legality of those measures. Where such provisions are adopted on grounds other than consumer protection, such as public interest or the respect for consumers’ private life protected by Article 7 of the Charter of Fundamental Rights of the European Union, they should be regarded as falling outside the scope of this Regulation.

Further, this Regulation should not affect accepted advertising and marketing practices, such as legitimate product placement, brand differentiation or the offering of incentives which may legitimately affect consumers' perceptions of products and influence their behaviour without impairing the consumer's ability to make an informed decision.

This Regulation neither covers nor affects the national laws on unfair commercial practices which harm only competitors' economic interests or which relate to a transaction between traders.

This Regulation should be without prejudice to existing Union law which expressly offers Member States regulatory options for the protection of consumers in the field of commercial practices.

For the effective application of this Regulation, certain concepts should be clarified so that they also reflect the evolution of the jurisprudence of the Court of Justice.

This Regulation should address commercial practices directly related to influencing consumers' transactional decisions in relation to products. For the purposes of its application, it should suffice that the trader's conduct concerns or targets only one single consumer.

The term ‘transactional decision’ should have a broad meaning covering not only decisions such as whether or not to purchase a product, but also decisions directly related to such decisions, for example the decision to enter a shop or to continue scrolling in a digital setting.

Unless otherwise provided for in this Regulation, the concept of 'payment' for the purposes of this Regulation should be given the meaning of any consideration of an asset value, as interpreted by the Court of Justice. It, therefore, not only includes funds used in payment transactions as defined in Article 3, points 7 and 8 of Regulation (EU) 2027/[…] (Payment Services Regulation), but also encompasses gifts, invitations, and any other payment in kind. In order to ensure that the consumers are not excluded from protection granted under this Regulation, this term should also encompass situation where the consumer does not pay with money but provides personal data to the trader as defined in Directive (EU) 2019/770 of the European Parliament and of the Council³⁸ . While fully recognising that the protection of personal data is a fundamental right, and that personal data cannot be considered as a commodity in itself, the collection of such personal data in the digital economy and their use for commercial purposes has an economic, asset value and, in the context of the digital economy, it could be considered as ‘payment’ within the meaning of this Regulation.

In line with the principle of proportionality, this Regulation should take as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice.

The average consumer test is not a statistical test. National courts, competent authorities and, where applicable, the Commission, will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case. As interpreted by the Court of Justice, the ‘reasonably well-informed’ nature of the average consumer refers to the information which can reasonably be presumed to be known to any consumer, taking into account the relevant social, cultural and linguistic factors. Equally, the fact that the concept of ‘average consumer’ should be understood by reference to a consumer who is ‘reasonably observant and circumspect’ does not exclude taking into account the influence of cognitive biases on that average consumer.

In certain fields, it is unlikely that the average consumer is technically capable of understanding all the details of an offer in order to make a choice in a fully rational way. Particularly in the online environment, the average consumer may have limited capacity to process information due to information overload. This may impair attention, comprehension and the quality of decisions taken by the consumer.

Where a commercial practice specifically targets a particular group of consumers, such as minors, the impact of the commercial practice should be assessed from the perspective of the average member of that group.

It is also necessary to lay down provisions aimed at preventing the exploitation of consumers who are likely to be particularly vulnerable to unfair commercial practices. Certain consumers may be particularly susceptible to a commercial practice or to the underlying product due to personal attributes such as age or disability, behavioural characteristics such as credulity, or personal circumstances, such as bereavement, financial distress, as well as other social and economic situations, regardless of their duration. These characteristics and circumstances are neither exhaustive, nor mutually exclusive. ‘Persons with disabilities’ means persons who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. For the purposes of this Regulation, persons with impairments that are not long-term should likewise be protected. Where a commercial practice is likely to materially distort the economic behaviour primarily of consumers who are vulnerable in a way that the trader can reasonably foresee, it is appropriate to ensure that such consumers are adequately protected by objectively assessing the practice from the perspective of the average member of that group, irrespective of the number of consumers affected.

In order to ensure a high level of consumer protection for children, for the purposes of this Regulation, a ‘minor’ or ‘child’ should be understood as any natural person under the age of 18, irrespective of any provisions of national law providing for an earlier or later attainment of legal majority.

Whether a product is directed at minors, or whether a trader is aware with reasonable certainty that the product is used by minors, should be assessed having regard to objective indicators.

For example, Union law, such as Regulation (EU) [EU KIDS Act] and the Guidelines on the protection of minors under Regulation (EU) 2022/2065, may require age assurance methods for certain types of traders. Also, traders may integrate customer accounts which allow them directly or indirectly to establish if the accounts belong to minors. Age rating systems, of traders themselves or of third parties, such as those that providers of software application stores have to put in place on the basis of Regulation (EU) [EU KIDS Act], or the Pan-European Game Information (PEGI) age classification system or comparable reliable age rating schemes, can also be taken into account.

Objective indicators pointing to the fact that the consumer is a minor also include the marketing channels used to advertise the product or product features, such as the characters (including celebrities or influencers), themes, animations, or the type of music or language used, when such indicators are likely to render the product appealing to minors.

With respect to influencer marketing, minors should be considered a significant part of the audience where they amount for at least 25% of the audience. Whether that is the case may be established on the basis of reasonably available and reliable evidence, including audience measurement and analytics data.

A trader may also be aware that some of the consumers are minors, for example because the trader already processes consumers’ personal data revealing their age for other purposes. Pursuant to Regulation (EU) 2016/679, notably the principle of data minimisation as provided for in Article 5(1), point (c) of that Regulation, the provisions of this Regulation should not lead the trader to maintain, acquire or process more personal data than traders already have.

In order to protect consumers from misleading commercial practices, this Regulation should cover those practices, including misleading advertising, which by deceiving consumers prevent them from making an informed choice. This Regulation should classify misleading practices into misleading actions and misleading omissions. In respect of misleading omissions, this Regulation should set out a limited number of key items of information which the consumer needs to be made aware of in order to make an informed transactional decision. Such information should not have to be disclosed in all advertisements, but only where the trader makes an invitation to purchase in accordance with this Regulation. In accordance with the case-law of the Court of Justice, an invitation to purchase exists as soon as the information on the product advertised and its price is sufficient for the consumer to be able to make a transactional decision, without it being necessary for the commercial communication also to offer an actual opportunity to purchase the product or for it to appear in connection with such an opportunity.

The way in which information is presented or framed may influence consumer decisions. For example, consumers are more likely to take into account information that is presented more saliently when taking decisions. Accordingly, when designing their online commercial communications, including invitations to purchase, traders should prioritise presentations that promote comprehension of material information and thereby facilitate consumers’ free and well-informed decision-making.

Marketing across Member States of goods as being identical when, in reality, they have a significantly different composition or characteristics may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise. Competent authorities and, where applicable, the Commission should assess and address on a case-by-case basis such practices in accordance with this Regulation. Such assessment should take into account whether such differentiation is easily identifiable by consumers, a trader’s right to adapt goods of the same brand for different geographical markets due to legitimate and objective factors, such as national law, availability or seasonality of raw materials or voluntary strategies to improve access to healthy and nutritious food as well as the traders’ right to offer goods of the same brand in packages of different weight or volume in different geographical markets. The competent authorities and the Commission should assess whether such differentiation is easily identifiable by consumers by looking at the availability and adequacy of information. It is important that consumers are informed about the differentiation of goods due to legitimate and objective factors. Traders should be free to provide such information in different ways that allow consumers to access the necessary information. Alternatives to providing information on the label of goods should generally be preferred by traders.

The requirement to provide the identity and geographical address of the trader in an invitation to purchase enables consumers to identify and contact the trader responsible for the transaction. However, information about the geographical address of the trader is most relevant where the consumer needs to exercise their contractual rights in relation to the purchase, such as the right of withdrawal or legal guarantee. Requiring traders, in particular individuals acting in the context of influencer marketing who merely promote, recommend or otherwise communicate about a product sold or supplied by another trader, to make their geographical address publicly available may interfere disproportionately with their privacy. Therefore, the requirement to disclose the geographical address in an invitation to purchase should only apply to traders engaged in the sale or supply of products to consumers.

When products are offered to consumers in online marketplaces, both the provider of the online marketplace and the third-party supplier are involved in the provision of the pre-contractual information required by Directive 2011/83/EU of the European Parliament and of the Council³⁹. As a result, consumers using the online marketplace may not clearly understand who their contractual partners are and how their rights and obligations are affected. Specific information requirements for providers of online marketplaces should therefore be provided in this Regulation to inform consumers whether the third-party offering goods, services or digital content is a trader or non-trader, such as another consumer, based on the declaration made to them by the third party.

Higher ranking or any prominent placement of commercial offers within online search results by the providers of online search functionality has an important impact on consumers. Ranking refers to the relative prominence of the offers of traders or the relevance given to search results as presented, organised or communicated by providers of online search functionality, including resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof. The transparency requirements with regard to the main parameters determining ranking under Regulation (EU) 2019/1150 of the European Parliament and of the Council⁴⁰ only apply between traders and online intermediaries. Similar transparency requirements should therefore be provided for in this Regulation to ensure adequate transparency towards the consumers, except in the case of providers of online search engines, which are already required by Regulation (EU) 2019/1150 to publish the main parameters which individually or collectively are most significant in determining ranking and the relative importance of those main parameters.

Traders enabling consumers to search for goods and services, such as travel, accommodation and leisure activities, offered by different traders or by consumers should inform consumers about the default main parameters determining the ranking of offers presented to the consumer as a result of the search query and their relative importance as opposed to other parameters. That information should be succinct and made easily, prominently and directly available. Those parameters should include any general criteria, processes, specific signals incorporated into algorithms or other adjustment or demotion mechanisms used in connection with the ranking.

The information requirement regarding the main parameters determining the ranking should be without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council⁴¹. Traders should not be required to disclose the detailed functioning of their ranking mechanisms, including algorithms. Traders should provide a general description of the main parameters determining the ranking that explains the default main parameters used by the trader and their relative importance as opposed to other parameters, but that description does not have to be presented in a customised manner for each individual search query.

Where Union law sets out information requirements in relation to commercial communication including advertising and marketing, that information should be considered as material under this Regulation. This Regulation does not prevent Member States from retaining or adding information requirements relating to contract law and having contract law consequences where this is allowed by the minimum clauses in the existing Union law instruments.

Only the information required under Union law should be considered as material for the purpose of misleading omissions prohibited under this Regulation. Where Member States have introduced information requirements over and above what is specified in Union law, on the basis of minimum clauses, the omission of that additional information should not constitute a misleading omission under this Regulation.

Consumers rely on consumer reviews and endorsements when they make purchasing decisions. Therefore, when traders provide access to consumer reviews of products, they should inform consumers whether processes or procedures are in place to ensure that the published reviews originate from consumers who have actually used or purchased the products. If such processes or procedures are in place, traders should provide information on how the checks are made. They should also provide clear information to consumers on how reviews are processed, for example, whether those reviews have been sponsored or influenced by a contractual relationship with a trader.

In order for consumers to be empowered to take better-informed decisions and thus stimulate the demand for, and the supply of, more sustainable goods, they should not be misled about a product’s environmental or social characteristics or circularity aspects, such as durability, reparability or recyclability, through the overall presentation of a product. Environmental and social characteristics and circularity aspects should be considered amongst the main characteristics of a product in respect of which a trader’s practices can be considered misleading, following a case-by-case assessment. Information provided by traders on the social characteristics of a product throughout its value chain can relate, for example, to the quality and fairness of working conditions of the workforce involved, such as adequate wages, social protection, the safety of the work environment and social dialogue. Such information can also relate to respect for human rights, to equal treatment and opportunities for all, including gender equality, inclusion and diversity, to contributions to social initiatives or to ethical commitments, such as animal welfare. The environmental and social characteristics of a product can be understood in a broad sense, encompassing the environmental and social aspects, impact and performance of a product.

Environmental claims, in particular climate-related claims, increasingly relate to future performance in the form of a transition to carbon or climate neutrality, or a similar objective, by a certain date. Through such claims, traders create the impression that consumers contribute to a low-carbon economy by purchasing their products. To ensure the fairness and credibility of such claims, it is necessary to prohibit such claims, following a case-by-case assessment, where they are not supported by clear, objective, publicly available and verifiable commitments and targets given by the trader and set out in a detailed and realistic implementation plan that shows how those commitments and targets will be achieved and that allocates resources to that end. That implementation plan should include all the relevant elements necessary to fulfil the commitments, such as budgetary resources and technological developments, where appropriate and in accordance with Union law. Such claims should also be verified by a third-party expert, who should be independent from the trader, free from any conflicts of interest, with experience and competence in environmental issues and who should be able to monitor the progress of the trader regularly with regard to the commitments and targets, including the milestones for achieving them. Traders should ensure that the regular findings of the third-party expert are available to consumers.

Another potentially misleading commercial practice is advertising benefits to consumers that are irrelevant and not directly related to any feature of that specific product or business and which could mislead consumers into believing that they are more beneficial to consumers, the environment or society than other products or traders’ businesses of the same type, for example, claiming that a particular brand of bottled water is gluten-free or claiming that paper sheets do not contain plastic.

Comparing products based on their environmental or social characteristics or circularity aspects, such as durability, reparability or recyclability, is an increasingly common marketing technique that could mislead consumers, who are not always able to assess the reliability of that information. In order to ensure that such comparisons do not mislead consumers, traders should provide consumers with information about the method of comparison, the products which are the object of comparison and the suppliers of those products, and the measures to keep information up to date. This should ensure that consumers make better-informed transactional decisions when relying on such comparisons. It should be ensured that such comparisons are objective by, in particular, comparing products which serve the same function, using a common method and common assumptions, and comparing material and verifiable features of the products being compared.

The provisions on aggressive commercial practices should cover practices which significantly impair the consumer's freedom of choice by using harassment, coercion, including the use of physical force, and undue influence. The consumer’s freedom of choice may be significantly impaired by commercial communications and other commercial practices, including increasingly personalised practices, that exploit consumer vulnerabilities due to attributes such as disability, age or credulity, or personal circumstances. This includes gambling addiction, eating disorders and financial distress, even if such vulnerabilities are experienced temporarily.

It is desirable that commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. It is therefore necessary to provide a list of such practices which should be deemed unfair without a case-by-case assessment in Annex I.

Certain problematic commercial practices are prevalent in the online environment and warrant specific rules to address them. The fact that a commercial practice in the online environment does not infringe the specific rules of this Regulation on digital fairness or of Annex I should not preclude that practice from being considered unfair where it does not comply with the general rules on unfair commercial practices.

Traders increasingly use dark patterns on the online interfaces of their websites, applications, including mobile applications, and other software which serves to give consumers access to the trader’s products. Such practices may pressure, mislead or otherwise interfere with consumers’ ability to take free and informed transactional decisions. Their widespread use in sectors such as ultra-fast-fashion online retail can for example influence consumers’ choices towards impulsive buying and overconsumption. While Regulation (EU) 2022/2065 prohibits intermediary service providers operating online platforms from using dark patterns in the design and organisation of their online interfaces, that prohibition does not apply to dark patterns covered by this Regulation, which relate exclusively to business-to-consumer commercial practices.

In order to ensure legal certainty, it is necessary to clarify that using dark patterns to materially distort the economic behaviour of consumers is prohibited. As some dark patterns present a particularly high risk of distorting the behaviour of consumers, the practices listed in Part III of Annex I should be deemed to be unfair in all circumstances. Exploitative design features that materially distort the economic behaviour of consumers by directing consumers to choices or actions that benefit the trader, but which may not be in the consumer’s interests, including, for example, by giving more prominence to choices that benefit the trader, decreasing the prominence of material information or forcing consumers to click through too many steps to access it, or making the choice indicated by the consumer lead to an unexpected result, should be deemed unfair.

Consumers are increasingly exposed to commercial communications disseminated by social media influencers. Such communications are frequently perceived as personal recommendations rather than advertising. While this Regulation prohibits misleading omissions, including the failure to disclose the commercial nature of the communication which may prevent consumers from making an informed choice, the application of its provisions to influencer marketing should be clarified, in particular as regards the manner in which such disclosure should be made.

Disclosure of the commercial nature of communications by influencers should be made in a clear, prominent, and unambiguous manner, in the same medium in which the communication is disseminated. The disclosure of the commercial nature of the communication should also be presented prominently and at the outset, at the same time when the communication is published, and maintained for the duration of the communication. It should be expressed in the language of the communication and in easily understandable terms which are adapted to the targeted audience and not be obscured by placement among unrelated items of information. The terms ‘advertisement’ and ‘commercial collaboration’ should be considered as sufficiently clear.

Minors are particularly vulnerable to influencer marketing, often perceiving influencers as their friends. Influencers sometimes exploit minors’ trust, for example by blurring the commercial purpose of their activities, pushing minors to buy products or otherwise distorting their transactional decisions. Some influencers also engage in the marketing of products that could be harmful, or otherwise unsuitable for consumers in general or to minors in particular, such as speculative instruments, betting, lotteries or other forms of gambling products or foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, excessive intakes of which in the overall diet are not recommended. Union law such as Directive 2010/13/EU prohibits the advertising of certain products in general, when directed at minors only or by certain actors only. Influencer marketing should be prohibited for products whose advertising is prohibited under Union or national law.

Traders disseminating commercial communication by means of influencer marketing, such as companies selling branded products or advertising agencies, determine the subject matter and the incentives of such communications. They are, generally, also better placed to be aware of the applicable legal requirements. Such traders should therefore also be liable for compliance with the legal requirements concerning influencer marketing irrespective of the type of payment granted to the influencer, meaning not only a sum of money, but also any other form of consideration having an asset value, and irrespective of the degree of editorial freedom conferred to the influencer. To this end, such traders should be required to contractually ensure, in a clear manner, that the legal requirements provided for in this Regulation are respected. Contractual provisions should not operate as means for traders to exclude their own liability with regard to the influencer and cannot affect the trader’s liability under this Regulation. Where a contract is not formally concluded, for example in a situation where traders provide gifts or invitations or other benefits in kind to the influencer, whether solicited or unsolicited, traders should take alternative measures to ensure compliance. Such measures should be effective, appropriate and proportionate. They may include providing the influencer with clear information on the applicable rules, requesting or verifying appropriate disclosure and, where necessary, requesting the correction or removal of the commercial communication, including by means of legal actions where appropriate.

Regulation (EU) 2023/988 of the European Parliament and of the Council⁴² and other Union product legislation set out proportionate obligations to economic operators, including manufacturers, importers and distributors, concerning the safety of products, in relation to their respective roles in the supply chain. In the context of influencer marketing, the operators concerned may in some cases have obligations as economic operators pursuant to Regulation (EU) 2023/988 or other Union product legislation depending on their role and their position in the product supply chain. For instance, operators engaging in influencer marketing that have manufactured the product or have a product manufactured or designed for them and are marketing it under their own name or trademark have to comply with the obligations of a manufacturer. Economic operators are to only make available on the market safe products and, where a product appears to be dangerous, they are to adopt corrective measures, including withdrawal or recall of the product, as well as inform consumers and the relevant authorities. Regardless of whether operators engaging in influencer marketing qualify as economic operators pursuant to Regulation (EU) 2023/988 or other Union product legislation, influencer marketing of dangerous products within the meaning that Regulation or other Union product legislation should be prohibited. Prior to engaging in influencer marketing activities regarding a product, the operators concerned are encouraged to check whether such products are subject to a corrective measure notified in the Safety Gate Portal, a web portal providing free public access to corrective measures taken against dangerous products.

When consumers are presented with advertisements based on targeting techniques optimised to exploit their vulnerabilities, personalised online advertising can have serious negative effects. In such instances, the use of sensitive personal data referred to in Article 9(1) of Regulation (EU) 2016/679, for example, personal data revealing information such as racial or ethnic origin, or health and sexual orientation, may be particularly problematic. Further, minors may be less aware of the risks relating to the processing of their personal data for commercial purposes. Regulation (EU) 2022/2065 already prohibits certain advertising practices of providers of online platforms, in particular the presentation of advertisements to recipients of their service based on profiling using special categories of personal data, or any kind of personal data when the provider is aware with reasonable certainty that the recipient of the service is a minor. However, the dissemination of personalised online advertisements can involve a complex chain of actors beyond providers of online platforms. Therefore, it is necessary to impose similar prohibitions on other traders which do not qualify as online platforms within the meaning of Regulation (EU) 2022/2065 or do not meet the requirements for the application of Section 3 of Chapter III of that Regulation.

Traders should therefore be prohibited from targeting advertisements based on profiling pursuant to Regulation (EU) 2016/679 using sensitive personal data of consumers in a manner that is reasonably likely to cause a particular consumer or a particular group of consumers harm. Traders should also be prohibited from targeting advertisements based on profiling using personal data when they are aware with reasonable certainty that the consumer is a minor. The prohibitions of unfair personalised advertising should also apply where personalised advertising takes the form of personalised content suggestions, product rankings and recommendations, and other types of promotional targeted messaging, including in natural language systems. In order to ensure their effectiveness, these prohibitions should apply to all traders, including providers of advertising services, that target or facilitate the targeting of advertising, such as by selecting the advertising content, selecting the targeting and ad-delivery criteria, providing the data used for the targeting and delivery of an advertisement, providing the targeting techniques and ad-delivery techniques, and delivering and disseminating an advertisement.

Online personalised pricing, where the prices of products are adapted to particular consumers or particular categories of consumer on the basis of personal data, resulting in different prices for the same product offered at the same time to different consumers, can be unfair if traders use this information in a manner that could be harmful for consumers. When they are aware with reasonable certainty that the consumer is a minor, traders should therefore be prohibited from personalising prices based on profiling pursuant to Regulation (EU) 2016/679 in a manner that is reasonably likely to cause the minor harm. Traders should also be prohibited from personalising prices based on profiling in a manner that is reasonably likely to cause the consumer harm where they are aware with reasonable certainty that the consumer is vulnerable due to age, credulity, disability and personal circumstances. These prohibitions will in most cases include offering higher prices to consumers, but may include offering lower prices, for example where traders offer, on the basis of the personal data, a product that may have a detrimental effect on the consumer. These prohibitions should not extend to personalisation to the benefit of consumers, such as student or senior rebates. These prohibitions should in particular not preclude the use of consumers’ personal data, including data that may be related to vulnerabilities, for the purposes of personalised pricing or differentiation of contractual terms, where such personalisation or differentiation is based on lawful, relevant, objective and transparent factors, such as evidence-based insurance risk or additional costs for the trader, provided that the processing of such data complies with the applicable requirements of Union and national law and that such personalisation does not exploit vulnerabilities.

Consumers are often exposed to commercial practices that have the effect of reducing the transparency of their economic transactions or that consist in offering products that can increase spending beyond the level they would choose. Such spending-maximising commercial practices include the use of virtual currencies, making available variable reward systems or making available pay-to-progress or pay-to-win mechanisms. The use of virtual currencies or other tokens or coins, that can be acquired in full or in part through payment transactions within the meaning of Article 3, point 8 of Regulation (EU) 2027/(…) (Payment Services Regulation, PSR) or though other paid-for virtual currencies, to purchase virtual items or other products, makes it more difficult for consumers to assess the true cost of an economic transaction. Virtual currencies that are locked inside that specific video game, gaming platform or app, hold no external cash value and cannot be cashed out or traded outside the video game, gaming platform or app, do not fall within the scope of the PSR or Regulation (EU) 2023/1114 of the European Parliament and of the Council⁴³. In order to allow consumers to make informed purchasing decisions when paying for virtual items or other products by exchanging in-game virtual currencies that have been purchased through payment transactions within the meaning of Article 3, point 8 PSR or through other paid-for virtual currencies, the real-world monetary value of such products in the currency used to purchase the virtual currency should be indicated to them in a prominent, clear and comprehensible manner, irrespective of any legal classification or definition of in-game currencies in Union law. Where the monetary value cannot be directly determined, it may be estimated based on what the consumer would have to pay in full, directly or indirectly through another virtual currency without applying quantity discounts or other promotional offers.

It may be particularly difficult for minors to understand the real monetary value of virtual currencies. Therefore, where a product is directed at minors or when the trader is aware with reasonable certainty that the product is used by minors, virtual currencies should be disabled by default, and the trader should only allow their activation upon prior approval of a parent or guardian. A product is directed at minors, for instance in cases where it has obtained an age rating, whether from traders themselves or from third-parties, such as those that the providers of software application stores have to put in place on the basis of Regulation (EU) [EU KIDS Act], or the Pan-European Game Information (PEGI) age classification system or comparable reliable age rating schemes, that indicates that the product’s use is appropriate for persons under the age of 18. Where a product is accessed through a customer account that a trader has established and that allows the trader directly or indirectly to establish that it belongs to a minor, the trader is considered to be aware with reasonable certainty that the recipient of the product is a minor. For the purpose of complying with their obligations under this Regulation, traders subject to the Regulation (EU) [EU KIDS Act] may rely on tools for guardians set forth under that Regulation.

Variable reward systems that offer random rewards or variable odds, such as loot boxes, wheels of fortune, or collectible card packs, are prone not only to cause unwanted spending by consumers but can also be harmful due to the fact that they share the speculative features of gambling. In order to ensure that the invitation to purchase those products complies with existing consumer protection rules, it is necessary to clarify traders’ obligations. Consequently, traders should inform consumers in a clear and prominent manner about the types of products available in such variable reward systems and the probabilities of obtaining them. Investment services relating to financial instruments which by nature offer variable returns are not to be considered variable reward systems.

Minors are particularly exposed to the persuasive effects of spending-maximising products. Therefore, where a product is directed at minors or when the trader is aware with reasonable certainty that the product is used by minors, variable reward systems that can be acquired in full or in part through payment transactions within the meaning of Article 3, point 8 of Regulation (EU) 2027/(…) or though paid-for virtual currencies should not be made available to minors. In addition, consumers should be able to use effective, easily accessible and simple tools enabling them to disable variable reward systems. The prohibition to offer variable reward systems to minors provided for in this Regulation should not apply to the providers of online social networking services, of video-sharing platform services and of AI companions and of general conversational chatbots which are subject to the same prohibition under Article 13(2) of Regulation (EU) [EU KIDS Act].

Pay-to-win and pay-to-progress mechanisms may make it impossible for consumers to advance in a video game or in an app or may lead them to reasonably believe that they cannot advance or compete without paying. Such mechanisms may include artificial difficulty barriers, progression speeds that render the unpaid path illusory, or competitive structures in which outcomes are effectively determined by expenditure. It may be difficult for minors to resist such perceived pressure to pay. Therefore, where a product is directed at minors or when the trader is aware with reasonable certainty that the product is used by minors, pay-to-progress or pay-to-win mechanisms that can be acquired in full or in part through payment transactions within the meaning of Article 3, point 8 of Regulation (EU) 2027/(…) or though paid-for virtual currencies should not be made available to minors.

Digital products are increasingly designed not merely to serve the purposes for which consumers use them, but to capture and retain consumers' attention, thereby encouraging prolonged engagement which may translate into harm of consumers’ economic interests. Certain design features and functionalities exploit consumers' cognitive, psychological and other vulnerabilities for economic purposes. This Regulation complements Regulation (EU) 2022/2065, which focuses on specific risks caused by very large online platforms and very large online search engines in relation to the design of online interfaces which intentionally or unintentionally exploit the weaknesses and inexperience of minors or which may cause addictive behaviour, or serious negative consequences to a person's physical and mental well-being. Nothing in this Regulation should affect the application of Regulation (EU) 2022/2065 to protect the recipient of the services against addictive design by designated entities. It also complements Regulation (EU) [EU KIDS Act], which imposes safety by design measures tailored to the specific characteristics and risks stemming from those systems in order to offer minors an age-appropriate experience. In particular, that Regulation bans addictive design features that exploit minors’ vulnerabilities and encourage compulsive or excessive use of the service, with adverse effects on minors’ mental, emotional and physical well-being, beyond their role as consumers. It also sets out specific features that shall be deemed to encourage such use on online social networking services and video-sharing platform services as well as to a certain extent on online games and AI companions and general conversational chatbots, in view of the specific characteristic of such services. For instance, video-sharing platforms and online social networks often feature the automatic play of content and incentivise “infinite scrolling”; video games may incentivise engagement by penalising the consumer if they do not engage; AI companions and general conversational chatbots, in turn, may simulate interpersonal relations to incentivise prolonged use. While the relevant features should not be available to minors on these services, pursuant to Article 9, 14 and 15 of Regulation (EU) [EU KIDS Act], in light of the extensive evidence on the harmfulness of such features also for adult consumers and beyond such services, it is necessary to enable consumers to disable features that encourage compulsive or excessive use. The provisions of this Regulation related to addictive design should not apply to traders subject to the relevant provisions of Regulation (EU) [EU KIDS Act] for practices concerning minors.

Access to cultural, sporting, and entertainment events is an important aspect of consumer participation in social and cultural life, and the market for tickets to such events has become increasingly digitalised. However, information asymmetry between traders and consumers and the emotional or social value attached to an event make consumers particularly vulnerable to practices designed to obscure the real price of the ticket, impairing their ability to take an informed decision. It is therefore necessary to establish specific transparency requirements applicable to traders offering event tickets. In particular, where traders make event tickets available at prices that may increase as a result of the trader’s actions or the use of automated or algorithmic pricing mechanisms, consumers should be informed, in a clear and prominent manner, of the number of tickets available at the advertised price and of the maximum price that may be charged, including any additional charges or fees that the consumer may be required to pay.

Traders often use virtual queuing systems in the event ticketing and other sectors for products in limited supply and for which there is strong consumer demand. Consumers waiting in a virtual queue for their chance to buy are particularly vulnerable to opaque pricing practices that can distort their transactional decisions. To ensure the necessary transparency, consumers should be informed, in a clear, prominent and timely manner, about the price of the product applicable at the time of the entry into the queue and whether that price is subject to variation during the waiting time. Consumers should also be notified about the current price changes in real time and about the maximum selling price while they are waiting in a virtual queue.

When first entering into a contract for the continuous provision of goods or services by means of an online interface or by other digital means, consumers are usually not able to see the goods or experience the service before concluding the contract. For that reason, traders often allow consumers to test the goods or services covered by such subscriptions during a free trial period at the end of which a paid contract period starts. The practice whereby after a free trial period a paid period starts automatically without informing the consumer unduly restricts consumers’ freedom of choice. Therefore, the trader should give the consumer clear and comprehensible information sufficiently ahead of the start of the paid period, allowing the consumer to decide whether to continue the contract against payment. Such information should include at least the end date of the free trial period and the start of the paid period, the detailed characteristics of the paid contract, such as the price, duration and termination procedure for the paid contract, as well as the procedure by which the consumer can confirm the start of the paid contract period. No payment should be required from the consumer during a free trial period, unless the consumer has expressly accepted the provision of the goods or services against payment.

Contracts for the continuous supply of goods or for the continuous provision of services concluded by means of an online interface or by other digital means often contain automatic extension clauses. Such automatic extension clauses may unduly restrict consumers’ freedom of choice in particular concerning the possibility of changing suppliers. It is difficult for consumers to keep track of the notice periods of all the contracts they have concluded. Traders should therefore be obliged to give consumers clear and comprehensible information sufficiently in advance of the renewal date, allowing consumers to decide whether to terminate the current contracts. Moreover, contracts that are automatically renewed for an indeterminate duration, even after a reminder, can lead to customer lock-in. Consequently, consumers should have the right to terminate such long-term contracts with a short notice period.

Short-term supply contracts containing automatic renewal clauses can unduly restrict consumers’ freedom of choice, if their cumulative duration, extensions included, exceeds a certain duration and the consumer is not informed about such extension. Consequently, it is appropriate also in such cases to require traders to provide consumers with information enabling them to decide whether to terminate their existing contracts. Such information should include at least the contract renewal date, price, duration, and termination procedure of the renewed contract, including a reference or direct link to the contract termination function.

In order to ensure the effective exercise of the right to terminate a contract, the procedure for the exercise of that right should not be more burdensome than the procedure for the conclusion of a contract. Where the trader offers the possibility of concluding contracts by means of an online interface, the trader should enable the consumer to terminate a contract concluded with that trader via an online function. This should ensure that consumers can terminate a contract just as easily as they can conclude it. To strengthen trust in the termination process, traders should be able to use a European Business Wallet established under Regulation (EU) [2025/xxx], or, in the case of sole traders, a European Digital Identity Wallet issued under Regulation (EU) No 910/2014, as amended by Regulation (EU) 2024/1183, to identify and authenticate themselves towards the consumer when the online function is used. Acknowledgements of receipt of the termination statement could also be issued by means of qualified trust services, such as qualified electronic seals, qualified time stamps and qualified electronic registered delivery services, which benefit from legal effect across the Union. The use of such means should remain optional, should not make the procedure for terminating the contract more burdensome than the procedure for concluding it, and should not prevent the use of other equivalent technical solutions.

Where the trader offers the possibility of concluding distance contracts that are subject to the right of withdrawal under Directive 2011/83/EU by means of an online interface, such as through a website or application, Directive 2011/83/EU already requires traders to provide an online function for exercising the consumer’s right of withdrawal. Traders should be able to rely on a European Business Wallet, or on a European Digital Identity Wallet in the case of sole traders, to identify and authenticate themselves when providing this function, in order to help consumers verify that the function is operated by the trader with whom they contracted. Traders should also be able to use trust services to send consumers a sealed and time-stamped acknowledgement of the withdrawal statement, including by means of qualified electronic registered delivery service. Such an acknowledgement should provide reliable evidence of the date and time at which the withdrawal statement was submitted, without prejudice to the consumer’s right to prove the exercise of the right of withdrawal by other means.

The contract termination function and the withdrawal function should be provided in a similar manner, thus potentially requiring only one-time changes to the design of the online interface, with the distinction that the withdrawal function should only be available during the withdrawal period while the newly introduced contract termination function should be available throughout the contract duration. Therefore, it is appropriate to set out the requirements for both functions in this Regulation. The obligation to provide a withdrawal or contract termination function should not in itself grant any right to withdraw from or terminate a contract but should only regulate the technical means of exercising such rights where they exist.

The withdrawal function and the contract termination function should be easy for the consumer to find, continuously available and clearly visible during the withdrawal period or throughout the contract respectively. The consumer should not have to undertake procedures to find or access those functions, such as downloading an application if the contract was not concluded through that application. The withdrawal function and contract termination function should enable consumers to provide or confirm the information necessary to identify themselves and the contract. For instance, consumers who have already identified themselves by logging in, should be able to withdraw from or terminate the contract without the necessity of providing once more their identification data or, where applicable, the identification of the contract from which the consumer wishes to withdraw or which the consumer wishes to terminate. In order to avoid the unintended exercise of the right of withdrawal or unintended termination of the contract by the consumer, the trader should request the consumer to confirm the decision to withdraw or terminate the contract. Where the consumer uses the function to exercise the right of withdrawal or to terminate a contract, the trader should communicate to the consumer an acknowledgement of receipt of such a withdrawal or a contract termination on a durable medium without undue delay.

An increasing number of traders use online tools for communication with and provision of customer service to consumers, both as regards distance and other contracts. To ensure that the consumer can manage an ongoing contract in a way that suits their needs, the consumer should have the right to request communication with a human being, whether online or otherwise, in the same language as the one the trader used for communicating pre-contractual information, free of charge, without undue delay during business hours of the trader, after the contract has been concluded. This could include human intervention when renewing a contract, in the event of major difficulties for the consumer or where further explanation regarding the contractual terms and conditions is needed. In undertaking their assessment of infringements of this obligation, competent authorities and, where applicable, the Commission, may take into account the nature and extent of the difficulties experienced by consumers and whether human intervention could result in undue burden for the trader in such cases, particularly given the size of the trader’s undertaking. Investment services as defined under Article 4(1)(2) of Directive 2014/65/EU of the European Parliament and of the Council⁴⁴ should be excluded from this provision in view of the applicable financial services legislation.

Automated systems programmed to interact with natural persons or with other automated systems in contracting, including through the deployment of artificial intelligence (AI) systems, are becoming increasingly more relevant both for traders and consumers. It is, therefore, important to enhance legal certainty and commercial predictability, including in cross-border transactions, through the harmonisation of certain rules on the use of automation in contracting in a technology neutral manner. Automated systems are capable of carrying out actions without the necessity of review or intervention of a natural person. However, the fact that an automated system is subject to human oversight does not imply that it would cease to be considered an automated system.

Consumers can use automated systems, including those provided by third parties, for their contractual relations with traders, but should not be obliged by traders to use automated systems to access their online interfaces, including to access special offers or conditions, or to conclude commercial transactions. Consumers may decide to use automated systems not only at the pre-contractual stage, but also for contract conclusion and performance. It is therefore important to clarify that consumer law continues to apply when consumers use automated systems and to safeguard the existing consumer rights also in this context. Consumers should be able to maintain a level of control over the actions of automated systems they use by having the possibility to express certain choices and set the key parameters for such automated systems and modify such settings as needed. For the purpose of setting those key parameters, traders making available to consumers automated systems should, therefore, ensure that such automated systems used for contracting contain easily accessible and effective tools, enabling the consumers to set and adjust the main parameters. To maintain a sufficiently high level of consumer protection, traders should ensure that on the first use of an automated system, consumers are required to expressly choose whether they wish to confirm all contracts proposed by the automated system before they are bound by such contracts, only certain contracts, based on specific parameters to be set by the consumer, or whether no confirmation of any contracts before being bound by them is necessary. The use of an automated system by the consumer does not imply any waiver of consumer rights accorded under Directive 2011/83/EU, even in case the consumer decides not to pre-approve any contracts before being bound by them. In all cases, traders should make available to the automated system used by the consumer for contracting the pre-contractual information required under Directive 2011/83/EU. Where consumers choose to confirm certain or all contracts, they should receive through the automated system at least the information provided for in Article 6(1), points (a) to (e), (h) to (k), (o) and (p), of Directive 2011/83/EU in a human-readable format to allow them to take informed decisions. When choosing to confirm only certain contracts proposed by the automated system, consumers should be able to set the parameters that they find important for their decision-making. For instance they should be able to exclude contracts above a certain monetary value that they set up-front, limit automated contracts to only those with specific traders as a counterpart or only those traders that provide a right of withdrawal or specific guarantees. Moreover, consumers should be able to indicate a time limit for the applicability of their choice to only confirm certain contracts before they are bound by them. Where the trader making available to consumers an automated system for contracting receives any payment for proposing a contract, for instance in case of a sponsored suggestion by the automated system or in case of any other conflict of interest with the trader concerned by the proposed contract, such as preferencing of that trader’s products in the proposals made by the automated system, the automated system should disclose the existence of such payment or other conflict of interest to the consumer on whose behalf it is acting and request a confirmation of the contract by the consumer, independently of the choice expressed by the consumer as regards the confirmation or not of all or certain contacts.

Where automated systems interact with traders on behalf of consumers, it is important that both sides can rely on trusted information on who is acting and on whose behalf, as well as to the effect of identifying the particular system. To that end, traders and providers of automated systems that are economic operators should be able to identify and authenticate themselves by means of their European or Digital Identity Wallets. Further, the interoperability with and use of European Business Wallets may aid in the identification and authentication of such systems, in order to boost the trust of the ecosystem used.

Traders making available to consumers automated systems for contracting should ensure that the automated system used by the consumer is programmed in such manner that when concluding a contract on the consumer’s behalf with a trader, it transmits to the latter trader the consumer’s contact details, including the e-mail and the geographical address, on the basis of consumer’s consent in compliance with the requirements of Regulation (EU) 2016/679 to process such information for that purpose.

At the same time, to decrease the administrative burden of traders, where a contract is concluded by the trader and the consumer solely through automated systems, the trader should be allowed to provide the pre-contractual information required under Article 6(1) of Directive 2011/83/EU only in machine-readable format and should be exempted from providing the information required under Article 6a. Articles 8(1), (2), (3), (4) and (8) of Directive 2011/83/EU should not apply to such situations.

Directive 2002/58/EC protects the users of electronic communications services from unsolicited communications for direct marketing purposes by means of telephone calls, electronic mail, SMS, MMS and telefax. This protection is highly relevant for consumers. It is therefore appropriate to integrate it into the Union consumer law framework. At the same time, the rules should be modernised by removing telefax which has lost its relevance as a means of communication in business to consumer relations. The use of electronic communications for direct marketing purposes should be possible with prior consumer consent which should be interpreted in line with Regulation (EU) 2016/679. Member States may in their national laws allow direct marketing calls operated with human intervention if the consumer has not opted out from receiving such calls. The modalities of the opt-out should be determined by national law provided that it is free of charge for the consumer.

It is appropriate to provide a role for codes of conduct, which enable traders to apply the principles of this Regulation effectively in specific economic fields. In sectors where there are specific mandatory rules regulating the behaviour of traders, it is appropriate that such rules also provide evidence as to the requirements of professional diligence in that sector. The control exercised by code owners at national or Union level to eliminate unfair commercial practices may avoid the need for recourse to administrative or judicial action and should therefore be encouraged. With the aim of pursuing a high level of consumer protection, consumers' organisations could be informed and involved in the drafting of codes of conduct.

Persons or organisations regarded under national law as having a legitimate interest should have legal remedies for initiating proceedings against unfair commercial practices, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. Such proceedings should also include proceedings under Directive (EU) 2020/1828 of the European Parliament and of the Council⁴⁵. While it is for national law to determine the burden of proof, it is appropriate to enable courts and administrative authorities to require traders to produce evidence as to the accuracy of factual claims they have made.

Business-to-consumer relationships are often characterised by information asymmetries, and the necessary evidence can be held exclusively by the trader. This is particularly the case in the online environment, due to the high technical complexity of commercial practices, which are increasingly data-driven and personalised. To ensure the effective enforcement of this Regulation, it is appropriate to enable courts and competent authorities to require traders to produce, at the request of a claimant who has presented facts and evidence sufficient to support the likelihood of an unfair commercial practice, or where the administrative authority has a reasonable suspicion of an infringement, relevant evidence relating to the design, operation and impact on the behaviour of consumers of the relevant commercial practice. Such evidence should be presented in an easily accessible and understandable manner. Courts and competent authorities should ensure that the disclosure of evidence is limited to what is necessary and proportionate. Confidential information, such as trade secrets must be protected in accordance with Union and national law, in particular Directive (EU) 2016/943.

Remedies should be available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. A clear framework for individual remedies would facilitate private enforcement. Consumers should have access to compensation for damage and, where relevant, a price reduction or termination of the contract, in a proportionate and effective manner. The remedies available to consumers shall be without prejudice to other remedies available to consumers under Union or national law, including the right to compensation under Directive (EU) 2024/2853 of the European Parliament and of the Council⁴⁶. Member States should not be prevented from maintaining or introducing rights to other remedies such as repair or replacement for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices. Member States should not be prevented from determining conditions for the application and effects of remedies for consumers. When applying the remedies, the gravity and nature of the unfair commercial practice, damage suffered by the consumer and other relevant circumstances, such as the trader’s misconduct or the infringement of the contract, could be taken into account, where appropriate.

In order to ensure that enforcement acts as a deterrent, Member States should lay down penalties for infringements of this Regulation and they should ensure that these are enforced. The penalties should be effective, proportionate and dissuasive. Moreover, the Commission should have the possibility to impose fines for breaches of this Regulation pursuant to Regulation (EU) [New CPC Regulation], as this would contribute to deterrence also in cases of very large-scale infringements that have a significant impact on the functioning of the internal market for consumers.

This Regulation ensures the same high level of consumer protection irrespective of the size of the trader, since consumers are equally exposed to unfair practices whether these originate from a large undertaking or from a micro, small or medium-sized enterprise. At the same time, in order to ensure that the enforcement of this Regulation is effective, proportionate and dissuasive, and does not impose an unnecessary burden on micro, small and medium-sized enterprises within the meaning of Commission Recommendation 2003/361/EC⁴⁷, competent authorities and courts should take the size and economic capacity of the trader into account when determining the type and amount of the penalties or amount of compensation. In particular, competent authorities and courts should have due regard to the size, turnover and financial resources of the trader, without prejudice to the level of protection afforded to consumers.

It should remain a matter for the Member States to choose the types of penalty to be imposed and to lay down in their national law the relevant procedures for the imposition of those penalties.

To facilitate more consistent application of penalties, in particular in the case of intra-Union infringements, widespread infringements and widespread infringements with a Union dimension as defined in Regulation (EU) 2017/2394 of the European Parliament and of the Council⁴⁸/ Regulation (EU) [New CPC Regulation], it is necessary to lay down common non-exhaustive and indicative criteria for the application of penalties. Those criteria should include the nature, gravity, scale and duration of the infringement, and any redress provided by the trader to consumers for the harm caused. Repeated infringement by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The financial benefits gained, or losses avoided, due to the infringement should be taken into account, if the relevant data are available. Other aggravating or mitigating factors applicable to the circumstances of the case may also be taken into account.

Those common non-exhaustive and indicative criteria for the application of penalties might not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of ne bis in idem.

In accordance with Article 21 of Regulation (EU) 2017/2394/Regulation (EU) [New CPC Regulation], Member States’ competent authorities concerned by the coordinated action are to take within their jurisdiction all necessary enforcement measures against the trader responsible for the widespread infringement or the widespread infringement with a Union dimension to bring about the cessation or prohibition of that infringement. Where appropriate, they are to impose penalties, such as fines or periodic penalty payments, on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension. Enforcement measures are to be taken in an effective, efficient and coordinated manner to bring about the cessation or prohibition of the widespread infringement or the widespread infringement with a Union dimension. The competent authorities concerned by the coordinated action are to seek to take enforcement measures simultaneously in the Member States concerned by that infringement.

To ensure that Member States’ authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement measures in accordance with Regulation (EU) 2017/2394/Regulation (EU) [New CPC Regulation], fines should be introduced as an element of penalties for such infringements. In order to ensure that the fines have a deterrent effect, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4 % of the trader’s annual turnover in the Member State or Member States concerned. In certain cases, a trader can also be a group of companies. For infringements of this Regulation investigated by the Commission pursuant to Regulation (EU) [New CPC Regulation] the Commission should have the possibility to impose fines not exceeding 6% of the trader’s worldwide annual turnover.

As laid down in Regulation (EU) 2017/2394/Regulation (EU) [New CPC Regulation], when imposing penalties due regard should be given, as appropriate, to the nature, gravity and duration of the infringement in question. The penalties imposed should be appropriate to the nature and the overall actual or potential harm of the infringement of Union laws that protect consumers’ interests. The power to impose penalties should be exercised either directly by competent authorities under their own authority, or, where appropriate, by recourse to other competent authorities or other public authorities, or by instructing designated bodies, if applicable, or by application to courts competent to grant the necessary decision, including, where appropriate, by appeal, if the application to grant the necessary decision is not successful.

Where, as a result of the coordinated action under Regulation (EU) 2017/2394/ Regulation (EU) [New CPC Regulation], a single competent authority within the meaning of that Regulation imposes a fine on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension, it should be able to impose a fine of at least 4 % of the trader’s annual turnover in all Member States concerned by the coordinated enforcement action.

Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension. It should also be possible for Member States to base such fines on the trader’s worldwide turnover, or to extend the rules on fines to other infringements not covered by this Regulation and that relate to enforcement measures in coordinated actions under Regulation (EU) 2017/2394/ Regulation (EU) [New CPC Regulation]. The requirement to set the fine at a level of not less than 4 % of the trader’s annual turnover should not apply to any additional Member State rules on periodic penalty payments, such as daily fines, for non-compliance with any decision, order, interim measure, trader’s commitment or other measure with the aim of bringing to an end the infringement.

When allocating revenues from fines, Member States should consider enhancing the protection of the general interest of consumers as well as other protected public interests.

Online traders increasingly rely on software components and services provided by third parties for the design of their digital products, online interfaces, algorithmic systems and other digital functionalities and processes. This is particularly true for small and medium-sized enterprises. Where a trader is held liable for an infringement of this Regulation, it is important to ensure that they have appropriate recourse rights against persons whose actions or omissions caused or contributed to the infringement. Such rights should be limited to commercial relationships and they should therefore not cover situations where the trader is liable for an infringement that resulted from the use of software which was supplied without the payment of a price under a free and open-source licence by another person.

Sustainability labels can relate to many characteristics of a product, process or business, and it is essential to ensure their transparency and credibility. Therefore, the displaying of sustainability labels which are not based on a certification scheme, or which have not been established by public authorities should be prohibited. Before displaying a sustainability label, the trader should ensure that, according to the publicly available terms of the certification scheme, it meets minimum conditions of transparency and credibility, including the existence of objective monitoring of compliance with the requirements of the scheme. Such monitoring should be carried out by a third party whose competence and independence from both the scheme owner and the trader are ensured based on international, Union or national standards and procedures, for example by demonstrating compliance with relevant international standards, such as ISO 17065 ‘Conformity assessment – Requirements for bodies certifying products, processes and services’ or through the mechanisms provided for in Regulation (EC) No 765/2008 of the European Parliament and of the Council⁴⁹. The displaying of sustainability labels remains possible without a certification scheme when such labels are established by a public authority, or where additional forms of expression and presentation of food are used in accordance with Article 35 of Regulation (EU) No 1169/2011 of the European Parliament and of the Council⁵⁰. Examples of sustainability labels established by public authorities are logos awarded when complying with the requirements of Regulations (EC) No 1221/2009⁵¹ or (EC) No 66/2010⁵² of the European Parliament and of the Council. Some certification marks, as defined in Article 27 of Directive (EU) 2015/2436 of the European Parliament and of the Council⁵³, can also operate as sustainability labels if they promote a product, process or business with reference, for example, to its environmental or social characteristics or both. The trader should be able to display such certification marks only if they are established by public authorities or based on a certification scheme. This rule complements Annex I, point (4), to this Regulation, which prohibits the making of a claim that a trader, the commercial practices of a trader or a product have been approved, endorsed or authorised by a public or private body when that is not the case, or the making of such a claim without complying with the terms of the approval, endorsement or authorisation. Voluntary market-based standards and voluntary public standards for green and sustainable bonds do not primarily target retail investors and are subject to specific laws. For those reasons, those standards should not be considered to be sustainability labels under this Regulation. It is important that public authorities, as far as possible and in compliance with Union law, promote measures to facilitate access to sustainability labels for small and medium-sized enterprises.

Where the displaying of a sustainability label involves a commercial communication that suggests or creates the impression that a product has a positive or zero impact on the environment or is less damaging to the environment than competing products, that sustainability label should also be considered as constituting an environmental claim.

This Regulation should also prohibit the making of a generic environmental claim without recognised excellent environmental performance which is relevant to the claim. Examples of generic environmental claims include ‘environmentally friendly’, ‘eco-friendly’, ‘green’, ‘nature’s friend’, ‘ecological’, ‘environmentally correct’, ‘climate friendly’, ‘gentle on the environment’, ‘carbon friendly’, ‘energy efficient’, ‘biodegradable’, ‘biobased’ or similar statements that suggest or create the impression of excellent environmental performance. Such generic environmental claims should be prohibited when recognised excellent environmental performance cannot be demonstrated. Whenever the specification of the environmental claim is provided in clear and prominent terms on the same medium, such as the same advertising spot, the product’s packaging or online selling interface, the environmental claim is not considered to be a generic environmental claim. For example, the claim ‘climate-friendly packaging’ would be a generic claim, whilst claiming that ‘100 % of energy used to produce this packaging comes from renewable sources’ would be a specific claim, which would not fall under this prohibition, without prejudice to other provisions of this Regulation remaining applicable to those specific claims. Furthermore, a claim made in written form or orally combined with implicit claims such as colours or images could constitute a generic environmental claim.

Recognised excellent environmental performance can be demonstrated by compliance with Regulation (EC) No 66/2010 or with officially recognised EN ISO 14024 ecolabelling schemes in the Member States, or by corresponding to top environmental performance for a specific environmental characteristic in accordance with other applicable Union laws, such as class A in accordance with Regulation (EU) 2017/1369 of the European Parliament and of the Council⁵⁴. The recognised excellent environmental performance in question should be relevant to the entire claim. For example, a generic environmental claim such as ‘energy efficient’ could be made based on recognised excellent environmental performance in accordance with Regulation (EU) 2017/1369. By contrast, a generic environmental claim such as ‘biodegradable’ could not be made based on recognised excellent environmental performance in accordance with Regulation (EC) No 66/2010, insofar as there are no requirements for biodegradability in the specific EU Ecolabel criteria related to the product in question. Similarly, a trader should not make a generic claim such as ‘conscious’, ‘sustainable’ or ‘responsible’ based exclusively on recognised excellent environmental performance, because such claims relate to other characteristics in addition to environmental characteristics, such as social characteristics.

This Regulation should also prohibit making an environmental claim about the entire product or the trader’s entire business when it actually concerns only a certain aspect of the product or a specific, unrepresentative activity of the trader’s business. That ban would apply, for example, when a product is marketed as ‘made with recycled material’ giving the impression that the entire product is made of recycled material, when in fact only the packaging is made of recycled material, or when a trader gives the impression that it is only using renewable energy sources when in fact several of the trader’s business facilities still use fossil fuels. Accordingly, the ban should not prevent a trader from making environmental claims about its entire business, provided that those claims are accurate and verifiable and that they do not overstate the environmental benefit, such as would be the case in the second of those examples, if that trader were to report a decrease in the use of fossil fuels for its business as a whole.

It is particularly important to prohibit the making of claims, based on the offsetting of greenhouse gas emissions, that a product, either a good or service has a neutral, reduced, or positive impact on the environment in terms of greenhouse gas emissions. Such claims should be prohibited in all circumstances as they mislead consumers by making them believe that such claims relate to the product itself or to the supply and production of that product, or as they give the false impression to consumers that the consumption of that product does not have an environmental impact. Examples of such claims are ‘climate neutral’, ‘CO2 neutral certified’, ‘carbon positive’, ‘climate net zero’, ‘climate compensated’, ‘reduced climate impact’ and ‘limited CO2 footprint’. Such claims should only be allowed when they are based on the actual lifecycle impact of the product in question, and not based on the offsetting of greenhouse gas emissions outside the product’s value chain, as the former and the latter are not equivalent. Such a prohibition should not prevent companies from advertising their investments in environmental initiatives, including carbon credit projects, as long as they provide such information in a way that is not misleading and that complies with the requirements laid down in Union law.

Traders frequently use price comparisons to promote products with the display of percentage reduction or absolute monetary saving and crossing-out the reference price. Such techniques suggesting a specific price advantage exert a significant influence on the transactional decisions of average consumers. To ensure transparency, traders should use such techniques only in comparisons with a verifiable price of the same product charged by a specific competitor, or when comparing the price of a second-hand or refurbished product with the price of the same new product. In contrast, these techniques suggesting a specific price advantage should not be used in comparisons based on mere estimated or recommended prices, such as the manufacturer’s recommended retail price. This should be without prejudice to the possibility for traders to present estimated or recommended reference price as a means of promotion, for example in coordinated promotional campaigns in retail networks, subject to the general requirements of fairness and transparency laid down in this Regulation. The rules on price comparisons of this Regulation should be without prejudice to the requirements for price reductions laid down in Directive 98/6/EC.

When traders present a price to consumers that does not include mandatory or unavoidable charges, which they only add at a later stage of the purchasing process, they limit consumers’ ability to compare offers and make informed transactional decisions. Such practices also undermine the effectiveness of price transparency requirements established under this Regulation and Directive 2011/83/EU. Traders should therefore be prohibited from presenting a price to the consumer for a product without including, in the price that is first communicated to the consumer, all foreseeable fees, taxes, charges or other payments that the consumer will unavoidably incur if the consumer purchases the product. This prohibition should apply whenever the fee or charge cannot be avoided and their amount is known in advance, such as an administration fee for an event ticket or a fixed delivery fee. It should not apply where the charge or fee depends on the individual parameters of the transaction that are only established in subsequent steps of the ordering process, such as delivery costs that depend on the consumer’s address, total amount of the order or the chosen means of delivery. This prohibition should apply regardless of the technical means or commercial channel through which the offer is presented.

Presenting requirements that are imposed by law on all products within the relevant product category on the Union market, including imported products, as a distinctive feature of the trader’s offer, should be prohibited in all circumstances. This prohibition should apply, for example, where a trader advertises a given product as not including a specific chemical substance when that substance is already forbidden by law for all products within that product category in the Union. Conversely, the prohibition should not cover commercial practices promoting traders’ or products’ compliance with legal requirements that only apply to some products but not to other competing products of the same category on the Union market, such as products of non-Union origin. It could be the case that certain products on the market are required to comply with certain legal requirements while other products in the same product category are not required to comply with those requirements. For example, as regards fish products produced sustainably in accordance with Union law, it would be allowed to promote the sustainability characteristics of those products that comply with Union legal requirements, if fish products of third country origin offered on the Union market are not required to comply with those Union legal requirements.

Practices where a trader provides information to a consumer in the form of search results in response to the consumer’s online search query without clearly disclosing any paid advertising or payment specifically for achieving higher ranking of products within the search results should be prohibited. When a trader has directly or indirectly paid the provider of the online search functionality for a higher ranking of a product within the search results, the provider of the online search functionality should inform consumers of that fact in a concise, easily accessible and intelligible form. Indirect payment could be in the form of the acceptance by a trader of additional obligations towards the provider of the online search functionality of any kind which have higher ranking as its specific effect. The indirect payment could consist of increased commission per transaction as well as different compensation schemes that specifically lead to higher ranking. Payments for general services, such as listing fees or membership subscriptions, which address a broad range of functionalities offered by the provider of the online search functionality to the trader, should not be considered to be a payment for specifically achieving higher ranking of products, provided that such payments are not dedicated to achieving higher ranking. Online search functionality can be provided by different types of online trader, including intermediaries, such as online marketplaces, search engines and comparison websites.

Traders should be prohibited from reselling to consumers tickets to cultural and sports events that they have acquired by using software such as ‘bots’ enabling them to buy tickets in excess of the technical limits imposed by the primary ticket seller or to bypass any other technical means put in place by the primary seller to ensure accessibility of tickets for all individuals. That prohibition should be without prejudice to any other national measures that Member States can take to protect the legitimate interests of consumers and to secure cultural policy and broad access of all individuals to cultural and sports events, such as regulating the resale price of the tickets.

Traders should be prohibited from misleading consumers by stating that reviews of a product were submitted by consumers who actually used or purchased that product when no reasonable and proportionate steps were taken to ensure that they originate from such consumers. Such steps could include technical means to verify the reliability of the person posting a review, for example by requesting information to verify that the consumer has actually used or purchased the product.

Traders should also be prohibited from submitting fake consumer reviews and endorsements, such as ‘likes’ on social media, or commissioning others to do so in order to promote products, as well as from manipulating consumer reviews and endorsements, such as publishing only positive reviews and deleting the negative ones. Such practice could also occur through the extrapolation of social endorsements, where a user’s positive interaction with certain online content is linked or transferred to different but related content, creating the appearance that that user also takes a positive stance towards the related content.

In order to improve the welfare of consumers, this Regulation should also address several practices associated with early obsolescence, including planned early obsolescence practices, understood as a commercial policy involving deliberately planning or designing a product with a limited lifespan so that it prematurely becomes obsolete or non-functional after a certain period or after a predetermined intensity of use. Purchasing products that are expected to last longer than they actually do causes consumer detriment. Furthermore, early obsolescence practices have an overall negative impact on the environment in the form of increased waste and increased use of energy and materials. Therefore, addressing information related to early obsolescence practices is also likely to reduce the amount of waste, contributing to a more sustainable consumption.

It should also be prohibited to withhold information from consumers about the fact that a software update will negatively impact the functioning of goods with digital elements or the use of digital content or digital services. In general, traders responsible for the development of software updates are expected to have such information, while in other cases traders can rely on reliable information provided by, for example, software developers, suppliers or competent national authorities. For example, when inviting consumers to update the operating system on their smartphone, the trader should not withhold information from the consumer that such an update will negatively impact the functioning of any of the features of the smartphone, such as the battery, the performance of certain applications or cause a complete slowdown of the smartphone. The prohibition should apply to any update, including security and functionality updates. For updates, including security updates, that are necessary to keep the good, digital content and digital service in conformity, Article 8 of Directive (EU) 2019/770 and Article 7 of Directive (EU) 2019/771 of the European Parliament and of the Council⁵⁵ should also apply. This should be without prejudice to Article 19 of Directive (EU) 2019/770.

Software updates that are security updates are necessary for the secure use of the product while updates related to enhancing functionality features are not. Therefore, this Regulation should prohibit the presentation of a software update as necessary to keep the product in conformity where that update only enhances functionality features.

Commercial communications for goods that contain a feature introduced to limit their durability is a commercial practice that is detrimental to consumers and the environment as they encourage the sale of such goods which leads to higher costs for consumers and unnecessary use of resources, waste production and greenhouse gas emissions. Such commercial communications should therefore be prohibited when information on the feature and its effects on the durability of the good are available to the trader. Examples of such features could be software which stops or downgrades the functionality of the good after a particular period, or a piece of hardware which is designed to fail after a particular period. It could also be a design or manufacturing flaw which, although not introduced as a feature for that purpose, leads to the premature failure of the good, if it is not fixed once information about the existence and effect of the feature has become available to the trader. In the context of that prohibition, commercial communications include communications designed to promote, directly or indirectly, the goods. The manufacturing of goods and making them available on the market do not constitute commercial communications. That prohibition should aim to cover mainly traders who are also the producers of the goods, as it is they who determine the durability of the goods. Therefore, in general, when a good is identified as containing a feature to limit the durability, the producer of that good should be expected to be aware of that feature and its effect on the durability of that good. Nevertheless, traders who are not the producers of the goods, such as the sellers, should be targeted by that prohibition where reliable information is available to them about the feature and its effects on durability, such as a statement from a competent national authority or information provided by the producer. Therefore, as soon as such information is available to the trader, the prohibition should apply irrespective of whether the trader is actually aware or unaware of that information, for example by neglecting it. For such a commercial practice to be considered unfair, it should not be necessary to demonstrate that the purpose of the feature is to stimulate the replacement of the respective good, but it would be sufficient to prove that the feature has been introduced to limit the durability of the good. This prohibition complements and does not affect the remedies available to consumers in the event of a lack of conformity under Directive (EU) 2019/771. The use of features limiting the durability of the goods should be distinguished from manufacturing practices using materials or processes of general low quality resulting in limited durability of the goods. Lack of conformity of a good resulting from the use of low quality materials or processes should continue to be governed by the rules on the conformity of goods set out in Directive (EU) 2019/771.

This Regulation should also prohibit the practice of falsely claiming that a good has a certain durability in terms of usage time or intensity under normal conditions of use. That would be the case, for instance, if a trader informs consumers that a washing machine is expected to last a certain number of washing cycles, in accordance with normal expected use indicated in the instructions, while the actual use of the washing machine under the prescribed conditions shows that is not the case. Such claims are largely made by the producers, as it is they who determine the durability of the goods. Therefore, in general, traders who are also the producers of the goods are expected to be aware of false claims regarding the durability of the goods, whereas other traders such as sellers should rely on reliable information available to them, for instance based on a statement from a competent national authority or information provided by the producer. Lack of conformity of a good resulting from occasional faults in the manufacturing of a good should continue to be governed by the rules on the conformity of goods set out in Directive (EU) 2019/771.

Another practice associated with early obsolescence which should be prohibited is inducing the consumer to replace or replenish the consumables of a product earlier than would otherwise be necessary for technical reasons. Such practices mislead the consumer into believing that the goods will no longer function unless their consumables are replaced, thus leading the consumer to purchase more consumables than necessary. For example, the practice of urging the consumer, via the settings of the printer, to replace the printer ink cartridges before they are actually empty in order to stimulate the purchase of additional ink cartridges should be prohibited.

This Regulation should also prohibit the withholding of information from the consumer about the impairment of the functionality of a good when using consumables, spare parts or accessories that are not provided by the original producer. For example, if a printer is designed in such a way that its functionality is limited when using ink cartridges not provided by the original producer of the printer, that information should not be hidden from the consumer because such a practice could mislead the consumer into purchasing an alternative ink cartridge which cannot be used for that printer, thus leading to unnecessary waste streams or additional costs for the consumer. Similarly, if a smart device is designed in such a way that its functionality is limited when using chargers or spare parts that are not provided by the original producer, that information should not be hidden from the consumer at the time of purchase. It should also be prohibited to mislead the consumer into believing that using consumables, spare parts or accessories not supplied by the original producer will impair the functionality of a good when this is not the case. In general, traders who are also the producers of the goods are expected to have that information, whereas other traders such as sellers should rely on reliable information available to them, for instance based on a statement from a competent national authority or information provided by the producer.

Accurate and unambiguous statements about the availability or popularity of a product can contribute to well-informed consumer decisions. However, consumers tend to assign greater value to products that are perceived as limited, difficult to obtain or desired by other consumers. Traders should therefore be prohibited from making false claims about the availability or popularity of a product. Such claims include statements about other consumers’ activity, such as how many consumers have purchased a product. Equally, traders should be prohibited from making statements about the availability or popularity of a product which do not clearly and unambiguously disclose relevant qualifications about the availability or popularity of that product. For example, where a product offered by a trader can be purchased elsewhere, the trader should disclose that any claims they make about availability concern only the respective trader’s supply.

Techniques relying on default options which the consumer is required to reject, such as pre-ticked boxes, and other means of inferring consumers’ consent to payment for additional products, a different product quantity or a different product exploit consumers’ strong behavioural tendency to accept default options. Such techniques should therefore be prohibited. This prohibition is to complement Article 22 of Directive 2011/83/EU. This prohibition should cover practices that may impact the consumers’ consent to acquire additional products, a different product quantity or different products, and should not extend to consumers’ consent to execute the underlying payment.

False or fake notifications serve no legitimate purpose and are inherently deceptive. This includes alerts, messages, badges, pop-ups or other signals which falsely suggest that another consumer, the trader or a third party has contacted, or taken an action concerning the consumer, or which falsely suggest that a matter requires the consumer’s attention. Such notifications should therefore be prohibited in all circumstances.

The types of dark patterns used by traders in the digital environment can change quickly and substantially. In order to ensure that a high level of consumer protection can be maintained in the event that traders use dark patterns on online interfaces which are not explicitly covered by Annex I to this Regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the list of dark patterns that are prohibited under all circumstances in Part III of Annex I. Given the evolving nature of digital products and features that are intended or which can reasonably be foreseen to encourage compulsive or excessive use of the service by consumers, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commissions in order to amend the list of features intended or which can reasonably be foreseen to encourage compulsive or excessive use of the service, which traders should enable consumers to disable. When adopting delegated acts under this Regulation, it is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making(12). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

Directive 2005/29/EC should therefore be repealed.

Since the objective of this Regulation, namely to contribute to the proper functioning of the internal market through the achievement of a high level of consumer protection, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve a high common level of consumer protection,