The Planned Digital Fairness Act
The Digital Fairness Act was proposed by the European Commission on 11 November 2026. The regulation would replace the Unfair Commercial Practices Directive and add rules on dark patterns, influencer marketing, personalisation, virtual currencies, addictive design, subscriptions and AI agents. This guide summarises the proposal and what German businesses selling to consumers should prepare for.
Key takeaways
- The Commission proposed the Digital Fairness Act on 11 November 2026 as a regulation.
- It would repeal the Unfair Commercial Practices Directive and apply 12 months after entry into force.
- Dark patterns, harmful personalisation and loot boxes for minors would be prohibited.
- Free trials, renewals and online cancellation would be regulated EU-wide.
- Commission fines of up to 6% of worldwide turnover are proposed for cross-border cases.
The Digital Fairness Act proposal at a glance
The Digital Fairness Act is no longer just a plan. On 11 November 2026, the European Commission adopted its proposal for a Digital Fairness Act (COM(2026) 1100), a regulation "on promoting fair business-to-consumer commercial practices in the offline and digital single market". It would repeal the Unfair Commercial Practices Directive 2005/29/EC and replace it with a directly applicable regulation that keeps the general rules on misleading and aggressive practices and adds specific rules for the digital economy: dark patterns, influencer marketing, personalised advertising and pricing, virtual currencies and loot boxes, addictive design, free trials, subscription renewals, online cancellation, customer service and AI agents contracting on behalf of consumers.
The proposal follows the Commission's Fitness Check of EU consumer law on digital fairness, which found that the existing directives remain relevant but do not adequately address practices of the data and attention economy. It now goes to the European Parliament and the Council. As proposed, the regulation would apply 12 months after its entry into force. Since adoption and negotiation will take time, the final text may differ considerably; but German businesses selling to consumers online should already map their practices against the proposal.
Main content of the Digital Fairness Act
| Topic | Proposed rule | Article |
|---|---|---|
| Dark patterns | General prohibition of interfaces likely to deceive or manipulate consumers or otherwise materially distort their behaviour; blacklist in Annex I, Part III | Article 10 |
| Influencer marketing | Clear disclosure with the terms "advertisement" or "commercial collaboration"; platform disclosure tools; protection of minors; traders using influencers must ensure compliance | Article 11 |
| Personalised advertising | No profiling-based ads using minors' data or special categories of personal data (outside DSA-regulated platforms) | Article 12 |
| Personalised pricing | No harmful profiling-based price personalisation for known minors or vulnerable consumers | Article 13 |
| Virtual currencies and loot boxes | Monetary value of virtual items; virtual currencies off by default for minors; probability disclosure and opt-out for paid variable rewards; no paid loot boxes for minors | Articles 14–15 |
| Pay-to-win for minors | Prohibition of pay-to-progress and pay-to-win mechanisms for minors | Article 16 |
| Addictive design | Tools to disable autoplay, non-essential notifications, streaks and similar features | Article 17 |
| Subscriptions | Free trial reminders with consumer opt-in; renewal reminders; online termination function | Articles 20–23 |
| Customer service | Access to a human being on request where other means are not effective | Article 25 |
| AI agents | Consumer control over automated systems that conclude contracts on their behalf | Articles 26–27 |
Dark patterns and addictive design
Article 10 would prohibit designing, organising or operating online interfaces in a manner likely to deceive or manipulate consumers or otherwise materially distort their economic behaviour. A list of dark patterns that are always unfair would be set out in Annex I and could be extended by delegated act. Unlike Article 25 of the Digital Services Act, which applies only to online platforms, the rule would apply to all traders dealing with consumers, including online shops, apps and service providers.
Article 17 would require traders whose digital products are designed in a way intended or reasonably foreseeable to encourage compulsive or excessive use to offer easily accessible tools to disable features such as autoplay without regular interruption, notifications not triggered by the user's activity, engagement streaks and penalties for not engaging, and features simulating interpersonal relationships. Services covered by the parallel proposal for an EU KIDS Act would be partly carved out.
Influencer marketing and personalisation
Traders carrying out influencer marketing would have to disclose the commercial intent of each communication clearly and prominently, using the terms "advertisement" or "commercial collaboration", and on online platforms through the platform's disclosure functionality under Article 26(2) of the Digital Services Act. Direct exhortations to minors and the marketing of dangerous or advertising-restricted products would be prohibited. Brands using influencers would have to ensure compliance contractually (Article 11(6)). See our insight on influencer marketing.
The proposal would also prohibit targeting ads based on profiling with minors' data or special categories of personal data — extending the DSA's platform rule to all traders — and prohibit harmful personalised pricing aimed at minors or consumers whose vulnerability the trader is aware of (Articles 12 and 13).
Review subscription and checkout journeys now. Pre-ticked add-ons, confirmshaming, hidden cancellation paths, automatic conversion of free trials into paid subscriptions and default-on notifications are all likely targets of the Digital Fairness Act — and many are already challenged under existing German unfair competition law.
Subscriptions, cancellation and customer service
For free trials concluded online, traders would have to send a reminder on a durable medium before the trial ends, and the consumer would be bound by a paid contract only if he or she expressly agrees before the end of the trial (Article 20). Reminders would also be required before automatic extensions of supply contracts (Articles 21 and 22). An online contract termination function — labelled "terminate the contract here" or equivalent — would have to be available wherever contracts can be concluded online, regardless of how the contract was concluded (Article 23).
German businesses will recognise this concept: § 312k BGB has required a cancellation button for online consumer subscription contracts since 2022. The EU rule would broaden and harmonise it.
Consumers would also have a right to communicate with a human being in post-contractual online customer service, on request and where other means are not effective (Article 25) — relevant for companies relying on chatbots. Investment services would be excluded from this rule.
Event tickets, virtual queues and direct marketing
The proposal contains several sector-specific rules. Where event ticket prices can rise because of the trader's actions or algorithmic pricing, traders would have to disclose how many tickets are available at the advertised price and the maximum price a consumer may have to pay; resellers would have to show the original price and seat details (Article 18).
Traders using virtual queues would have to display the current price, whether it may vary and the maximum price while the consumer waits (Article 19). Article 28 would move the consent requirement for direct marketing by automated calls, SMS and email into the regulation, with the established exception for marketing similar products to existing customers who can object at any time. Article 29 would prohibit any conduct, including interface design, that undermines effective compliance with the digital-specific obligations.
AI agents and automated contracting
Articles 26 and 27 address a new phenomenon: AI systems that conclude and perform contracts on behalf of consumers. Traders that make such systems available would have to ensure that consumers can set and adjust parameters and, on first use, choose whether to confirm all contracts, only certain types of contracts (for example below a maximum price), or none. These rules complement the AI Act's transparency duties and will matter for e-commerce, travel and financial comparison services.
Relationship to other EU digital laws
The explanatory memorandum presents the Digital Fairness Act as a consumer protection safety net alongside the Digital Services Act, the Digital Markets Act, the AI Act, the GDPR and the Digital Omnibus, and as complementary to the Commission's proposal for an EU KIDS Act and the upcoming review of the Audiovisual Media Services Directive.
Several provisions contain carve-outs to avoid overlaps: the personalised advertising rule does not apply to online platforms already covered by the DSA's advertising rules, and certain addictive design and virtual currency rules do not apply to services covered by the EU KIDS Act proposal. Companies will therefore need to map which regime applies to each feature of their service, which may differ depending on whether they are an online platform, a game provider or an ordinary online shop.
Enforcement and what it means for Germany
Enforcement would remain largely decentralised. Member States must provide for actions by persons and organisations with a legitimate interest, including competitors (Article 30) — in Germany, the established system of injunctions by competitors and associations under the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG). For coordinated cross-border actions, fines would have to reach at least 4% of turnover in the Member States concerned, and the Commission could impose fines of up to 6% of worldwide annual turnover in cases it investigates under a revised Consumer Protection Cooperation Regulation (Article 35).
Because the Digital Fairness Act would be a regulation, the UWG provisions implementing the Unfair Commercial Practices Directive in business-to-consumer relations, including § 5 UWG and the blacklist in the annex to the UWG, would have to be adapted. Business-to-business rules would remain national.
Evidence and burden of proof
Two procedural rules deserve attention. Courts and authorities would be able to require traders to substantiate factual claims made in their commercial practices and treat them as inaccurate if the evidence is insufficient (Article 33).
In addition, where a claimant has presented facts making an unfair online practice likely, courts and authorities could order traders to disclose relevant evidence on the design and operation of their interfaces and their impact on consumer behaviour (Article 34). For companies that test interface variants and measure conversion effects, this means that internal A/B testing data could become evidence in proceedings. Traders held liable could take recourse against business partners, such as agencies or software providers, whose acts contributed to the infringement (Article 36).
What companies should do now
- Inventory consumer-facing digital journeys: sign-up, checkout, upsell, subscription, cancellation and customer service.
- Identify practices that resemble the proposed dark pattern and addictive design rules.
- Review influencer contracts and disclosure practices.
- Check in-app currencies, loot boxes and age assurance in games and apps.
- Prepare for free trial and renewal reminders and a harmonised termination function.
- Monitor the legislative process, in particular changes to the dark pattern blacklist and the application date. The legislative process will determine how much of the proposal survives. The European Parliament and the Council will each adopt positions before trilogue negotiations Substantial amendments to the dark pattern blacklist, the personalisation rules and the treatment of games are possible, as are changes to the proposed 12-month transition period, a short period for businesses that need to redesign interfaces, contracts and internal processes across several markets and product lines. German courts' extensive case law on misleading advertising would remain relevant as guidance but would be subject to the interpretation of the new regulation by the Court of Justice.
How TRW & Co helps with the Digital Fairness Act
We follow the Digital Fairness Act through the legislative process and help companies assess its impact on their websites, apps, games, subscriptions, influencer campaigns and AI services. We review user journeys for dark patterns, design compliant subscription and cancellation processes, draft influencer contracts and advise on enforcement risks under the UWG and EU consumer law. See our pages on commercial law and digital platforms and the DSA, or contact us.
Frequently asked questions
What is the Digital Fairness Act?
A proposed EU regulation, adopted by the Commission on 11 November 2026 (COM(2026) 1100), on fair business-to-consumer commercial practices. It would repeal the Unfair Commercial Practices Directive and add rules on dark patterns, influencer marketing, personalised advertising and pricing, virtual currencies, addictive design, subscriptions and automated contracting.
When would the Digital Fairness Act apply?
The proposal must first be adopted by the European Parliament and the Council, which usually takes well over a year. As proposed, the regulation would apply 12 months after its entry into force. The final content and dates may change during negotiations.
Does the proposal ban loot boxes?
For minors, largely yes. Traders whose products are directed at minors or are known to be used by minors would not be allowed to offer paid variable reward systems or pay-to-win mechanisms to them. For adults, traders would have to disclose probabilities and offer tools to disable paid variable reward systems.
How does it affect German subscription businesses?
Germany already requires a cancellation button under § 312k BGB. The proposal would harmonise and extend this with an online termination function, reminders before free trials end and before automatic renewals, and a requirement that consumers expressly agree before a free trial converts into a paid contract.
Who would enforce the Digital Fairness Act in Germany?
As with current consumer law, enforcement would rely on national means, which in Germany include injunction claims by competitors and associations under the UWG, plus authority action in cross-border cases. The Commission could fine traders up to 6% of worldwide turnover in cases it investigates.
Sources
General information only, not legal advice. References to statutes, courts and authorities describe published law and practice at the date shown.