Consumer Decision-Making Autonomy in the Digital Environment: Towards a New Understanding of National Courts’ Obligation to Assess Ex Officio Violations of Fair Commercial Practices

Abstract

Digitalisation has changed traders’ possibilities of influencing the autonomy of consumer choice in the digital environment. The digital market of the European Union involves a wide spectrum of commercial practices – such as dark and addictive patterns, target advertising and personalisation – that nudge consumers to take decisions that are not in their favour. One of the main aims of the Unfair Commercial Practices Directive 2005 is to protect the freedom of consumer decision-making. However, currently, the Directive’s capacity to safeguard consumer choice in the digital environment is not sufficiently effective. Through the lens of law prohibiting unfair commercial practices, this article analyses the means available to consumer courts to strengthen consumer decision-making autonomy in the digital environment. The article argues that regulation of prohibition of unfair commercial practices regarding the digital environment should be modernised by obliging – in certain circumstances – national courts ex officio to assess violations of fair commercial practices and by reversing the burden of argumentation and proof.