Information, Transparency and Fairness for Consumers in the Digital Environment
Expanded FIDMA commentary on Emilia Mišćenić’s chapter, with emphasis on doctrinal nuance, case law, and regulatory coherence.
Executive point. EU consumer protection in digital markets remains disclosure-centric, yet the form and timing of disclosure often miss the decision point—and sometimes the medium altogether. Interface design, profiling and dark patterns exploit structural asymmetries, turning the “average” consumer into a digitally vulnerable one, while an expanding legal patchwork produces uncertainty for both traders and users.
1) From the “average” consumer to the digitally vulnerable one
The benchmark “average consumer”—“reasonably well informed and reasonably observant and circumspect”—originates in Gut Springenheide and migrated from the UCPD into the interpretive fabric of the CRD, UCTD and sectoral rules. Its protective function is elastic: under contextual pressures, that benchmark slides toward a weak or vulnerable consumer (e.g., because of informational or bargaining imbalances). Mišćenić situates digital markets as the crucible where this slide routinely occurs: choice is shaped by design patterns, tracking and algorithmic persuasion; users “click and accept” T&Cs, cookies and privacy notices—often without receiving essential information on a durable medium beforehand.
Commission sweeps corroborate this: many webshops failed to inform about withdrawal rights, non-conformity remedies or ODR—an enforcement reality that undercuts transparency in practice.
2) A dense, fragmented acquis—and why coherence matters
Today’s B2C digital transaction may simultaneously engage the CRD (distance contracts), UCTD (fairness of terms), UCPD (commercial practices), GDPR (lawful
processing/consent), the P2B Regulation, the DMA/DSA, and the “Twin Directives” for goods and digital content. Each instrument contains its own transparency or “clear and comprehensible” requirements, yet coordination remains imperfect. The DSA’s dark-pattern ban (Article 25) exempts practices already covered by the UCPD/GDPR, a carve-out that invites overlap questions precisely where B2C interface manipulation is most acute. Against this backdrop, the Commission’s Digital Fairness – Fitness Check (public consultation launched 28 November 2022) explicitly tests the adequacy of CRD/UCTD/UCPD in the digital environment and probes horizontal coherence with platform rules, data protection and AI. Its questionnaire foregrounds issues such as manipulative designs, consent to online contracts, subscription cancellations/renewals, and the role of influencers—again tying them back to information and transparency.
Influencer marketing illustrates the coordination challenge: amendments via the Omnibus Directive demand disclosures on trader status, sponsored content and ranking parameters, but businesses and consumers cannot be expected to puzzle this out from CJEU decisions alone.
3) What recent CJEU case law actually requires
Content Services. Hyperlinks hosting pre-contractual information on a trader’s website are not a “durable medium.” Making mandatory information “accessible via a link” does not satisfy the formal duties. The Court set its face against purely web-hosted information as a substitute for durable-medium confirmation.
Tiketa. A decade later, the Court acknowledged market and technology evolution: pre- contractual information may be presented in online T&Cs that the consumer actively accepts (e.g., tick-box)—provided it is brought to the consumer’s attention “in a clear and comprehensible manner.” Yet this does not displace the separate obligation to confirm the contract on a durable medium under Article 8(7) CRD.
Fuhrmann-2. For “obligation to pay” under Article 8(2) CRD, assessment focuses on the words on the payment button itself and how the average consumer would understand them. National courts must verify whether terms like “booking” necessarily signal a payment obligation.
EIS. Where a trader’s telephone number appears so as to suggest it is used for consumer contact, that number is “available” under the CRD—again measured against the average consumer’s expectation.
Victorinox. The duty to inform about a manufacturer’s commercial guarantee under Article 6(1)(m) CRD arises only if the consumer has a legitimate interest in that information—e.g., where the trader makes the guarantee a “central or decisive” element of the offer. Factors include layout, prominence, potential confusion, and the overall objective need to protect the consumer.
Through-line. The jurisprudence does not reward more disclosure; it demands effective transparency at the right juncture (pre-contractually and on a durable medium) and calibrated to the average consumer.
4) Availability, timing and medium: the often-missed pillars of transparency
Multiple instruments insist that information be available, accessible, clear, legible and timely. The E-Commerce Directive requires that conditions of promotional offers and unsolicited communications be easily accessible and clearly identifiable (Recital 30). The CRD demands that Article 6(1) information be “given or made available” in a manner appropriate to the means of communication, “in plain and intelligible language,” and—where provided on a durable medium—legible. The Omnibus Directive further requires that ranking parameters be directly and easily accessible from the offers page. The Twin Directives add transparency hooks for modifications to digital content/services (DCD Article 19) and for commercial guarantees (CSD/Article 17(2); plain, intelligible language). Yet empirical reality diverges: pre-contractual information becomes post-contractual; essential items are buried in T&Cs; unilateral changes occur without valid reason; and consumers rarely receive a durable-medium confirmation before commitment.
5) The subscription economy and “digital nudges”
The Fitness Check floats concrete measures for subscriptions: reminders before automatic renewal, explicit consent for payment data, and a one-click termination button—each mapping transparency duties to moments that matter (renewal, charge, cancellation). As Mišćenić notes, complementary efforts also leverage technology against unfairness—e.g., CLAUDETTE, an automated detector of potentially unfair terms.
The broader policy worry is algorithmic persuasion and its impact on cognitive autonomy: “fine-grained, subconscious and personalized” nudges can compromise independent decision- making, making a re-design of transparency duties urgent.
6) Disclosure overload versus meaningful transparency
Mandating ever longer lists of pre-contractual items imposes compliance cost while
predictably producing noise. Consumers are “rather confused than enlightened” by volume-heavy disclosures; traders “purportedly comply” while obscuring salient terms in hyperlinked T&Cs. The problem is not new in EU consumer law: uncoordinated, unsystematic layering of rules can do more harm than good, especially when new instruments (DSA/DMA) add requirements but little practical guidance.
7) An “essentials-first” model the acquis can actually sustain
Mišćenić’s core proposal is to re-engineer the disclosure architecture around quality and timing:
(i) Distinguish “essential” from ancillary information. Essential content—core subject matter, total price, principal rights and obligations (withdrawal/termination, remedies, dispute pathways)—should be delivered on a durable medium at or before commitment; ancillary detail may be provided by modular hyperlinking adapted to digital realities.
(ii) Nudge comprehension without manipulation. Surface the essentials in context (pop- ups/drop-downs) at the precise decision point, pairing behavioural insights with formal law.
(iii) Standardise presentation. Implement concise summaries of key T&Cs in an easily accessible section, connected to the Fitness Check’s proposal for online disclosure of summarized T&Cs. Provide annexed examples and templates across directives to anchor enforcement and compliance.
This evolution is consistent with Tiketa (accepting digital-first presentation if clear) and still faithful to Content Services/Article 8(7) CRD (non-waivable durable-medium confirmation). It also aligns with transparency clauses already scattered across the DCD/CSD and the E-Commerce and CRD frameworks, which can be concretised through guidance and interface-level exemplars.
8) Why this re-calibration advances fairness
A calibrated, essentials-first regime would (a) reduce the gap between law-on-the-books and law-in-use, (b) lower compliance cost through predictable formatting and timing duties, and (c) improve risk allocation and liability clarity. Mišćenić explicitly links such reform to guidelines and annexes showing what good compliance looks like online (e.g., structure of T&Cs; key rights such as withdrawal), akin to standardised forms in consumer credit but without reproducing their complexity.
Bottom line for regulators and practitioners. The Fitness Check provides the institutional window to exchange disclosure maximalism for effective transparency: fewer items, better timed, on the right medium, and presented so that an average—often digitally vulnerable—consumer can truly understand the economic and legal consequences of the click. That is how informational duties can again serve fairness rather than gesturing at it.
Primary source: Emilia Mišćenić, Information, Transparency and Fairness for Consumers in the Digital Environment (open access via Nomos eLibrary). The analysis above draws on her discussion of the Fitness Check, the interaction of CRD/UCTD/UCPD with DSA/DMA/GDPR, and CJEU decisions including Content Services, Tiketa, Fuhrmann-2, EIS and Victorinox.