In a non-paper dated 14 October and seen by Agence Europe, the German government stresses the need to ensure that the proposed Digital Fairness Act (DFA) works alongside existing EU legislation. Germany believes that existing legislation, particularly consumer protection directives, should be amended without creating a “new horizontal legal act”.
Berlin calls for regulatory duplication and “legal uncertainty” to be avoided, warning that they could undermine enforcement and “generate unnecessary burden for businesses”. This need for consistency applies to the Digital Services Act (DSA), the General Data Protection Regulation (GDPR), the Artificial Intelligence Act (AI Act), the ‘Digital Omnibus’ to simplify digital legislation and the proposed regulation on the protection of minors online (EU Kids Act).
Germany nevertheless considers that the need to turn the Unfair Commercial Practices Directive (UCPD) into a regulation to improve enforcement in cases of serious cross-border infringements “has not yet been sufficiently demonstrated”. If that change were made, the EU’s largest economy would seek safeguards, particularly to preserve Member States’ existing mechanisms.
Germany is calling for “clear and practical guidelines” under the UCPD “to ensure that there is legal certainty regarding the distinction between unfair practices and legally permissible and legitimate commercial practices” in e-commerce and apps.
To define deceptive interfaces, Berlin wants to draw on Article 25 of the DSA. That article prohibits online platforms from designing their interfaces in ways that manipulate users or “impair their ability to make free and informed decisions”. The non-paper proposes adopting this approach in the UCPD by creating a new category containing a general prohibition on manipulative practices.
This prohibition would be accompanied by broader principles of prevention. Germany proposes incorporating the principles of “fairness by design” and “fairness by default” into the interpretation of “professional diligence” under the UCPD, making them “a specific standard and interpretation guideline for online interfaces”. These principles “must be made legally binding”. The corresponding rules should be “applicable in practice”. This should not include any specific fairness-related documentation, reporting or evidence requirements. See the non-paper: https://aeur.eu/f/o3a (Original version in French by Louis Dubar)