Netherlands: ACM’s position on the Digital Fairness Act

The European Commission (EC) is preparing the Digital Fairness Act (DFA), a legislative initiative intended to address manipulative online practices and enhance consumer protection in the digital environment. As part of preparing the legislative proposal, the EC  launched a public consultation and call for evidence. Amongst other stakeholders, the Netherlands Authority for Consumers & Markets (ACM) submitted its contribution, outlining the reforms it believes are necessary for a modernised consumer law framework.

Below, we outline the ACM's key recommendations and highlight potential implications for businesses operating in digital markets regarding definitions, due diligence obligations, and simplification and harmonisation.

Rethinking EU consumer law for the digital age

The ACM considers the current EU consumer law framework — including the Unfair Commercial Practices Directive, Consumer Rights Directive, and Unfair Contract Terms Directive — insufficient for today’s digital environment. It proposes stronger consumer protection whilst streamlining the regulatory landscape for businesses. 

Average consumer

The ACM suggests an adjustment of EU consumer law's cornerstone concept: the "average consumer". The Dutch regulator argues that consumer behaviour is shaped by bounded rationality, meaning decisions are influenced by limited time, attention, and cognitive capacity. Traditionally, consumers are presumed to be “reasonably well-informed, observant, and circumspect.” The CJEU’s recent Compass Banca ruling allows this presumption to be challenged using behavioural evidence. Whilst the ACM welcomes this development, it considers it insufficient. To strengthen consumer protection, the ACM calls on the EU legislator to modernise and codify the definition. It puts forward an initial proposal:

“Consumers have limited time and cognitive bandwidth and often rely on heuristics and other psychological processes.”

If adopted, businesses would need to rethink how they design and justify consumer-facing practices.

Fair design

Another central theme in the paper is the impact of “digital choice architecture” on consumer behaviour. The ACM highlights that design elements — such as noticeability, pre-selected options, friction in cancellation flows, and layered disclosures — can significantly influence decisions. The ACM therefore advocates for embedding fairness-by-design principles into the Unfair Commercial Practices Directive through a general open norm, following the model of Article 25 of the Digital Services Act (DSA). Unlike the DSA, the ACM envisions a broader scope covering systemic dark patterns beyond interface design.

The ACM recommends supplementing this open norm with a black list and a grey list of specific rule-based prohibitions to further facilitate enforcement. The black list would prohibit practices considered inherently unfair. Examples mentioned by the ACM are obstructing the cancellation of subscriptions, pre-selecting boxes and adding unsolicited items to the consumer’s basket. The grey list would cover practices that are not inherently unlawful under all circumstances but which create a strong presumption of unfairness. For the grey list the ACM mentions drip pricing, the gamification of marketing, and nagging practices.

The attention economy: Extending consumer protection to ‘wellbeing and time’

Current EU consumer law focuses on economic transactions and the financial interests of consumers, rather than (emotional) wellbeing or the use of consumers’ time and attention. However, the ACM states that many business models increasingly rely on design features that encourage continued engagement, including infinite scroll, autoplay, push notifications and social cues. 

In that light the ACM has called for consumer protection to go beyond economic outcomes and consider the effects on wellbeing and time spent. It suggests drawing inspiration from Article 34 of the DSA, which requires large platforms to assess systemic risks, including those affecting physical and mental wellbeing.

Furthermore, the ACM proposes treating time spent as a form of payment under the Unfair Commercial Practices Directive.  In the ACM’s view, practices that encourage consumers to spend more time than they otherwise would, should be subject to the same scrutiny as practices that distort purchasing decisions.. The ACM highlights social media and online games as areas where this risk is particularly relevant.

Due diligence and AI governance

Beyond interface design, the ACM proposes introducing due diligence obligations. Businesses would need to demonstrate that fairness and consumer interests are considered when developing digital products. This would enable proactive audits by regulators, shifting compliance from reactive enforcement to preventive oversight.

The ACM highlights specific concerns relating to the treatment of vulnerable groups, referring in particular to high‑spending players in online games (sometimes described as “whales”),, impulsive buyers in e-commerce, minors, and elderly consumers. The ACM emphasises that practices exploiting vulnerable groups would be subject to proactive audits under the proposed due diligence framework.

Simplification and harmonisation of consumer protection

The ACM recognizes the complexity of overlapping EU consumer rules and divergent national laws, which create legal uncertainty and administrative burdens for businesses. It calls for convergence and maximum harmonisation in the DFA, aligning definitions, terminology, and requirements across instruments like the Unfair Commercial Practices Directive, DSA, GDPR, DMA, and AI Act. 

To improve enforcement, the ACM also proposes the creation of an independent EU-level consumer authority to address cross-border infringements efficiently, while retaining national authorities for local cases. Clear cooperation mechanisms between authorities should ensure consistent interpretation, coordinated enforcement, and streamlined information exchange across the EU.

Gaming sector in focus

Together with its broader position paper on digital fairness, the ACM published a specific paper on gaming, inter alia identifying risks associated with loot boxes and similar variable reward features. It argues that loot boxes and variable reward systems — randomised rewards where players pay (or play) for unknown outcomes — strongly resemble gambling mechanics. The ACM proposes an EU-wide ban on loot boxes, including paid and unpaid models. If such an approach was to be adopted on an EU level, game developers would need to phase out loot boxes and revise freemium revenue structures, with non-compliance likely to attract regulatory scrutiny.

Going forward

The EC’s Factual Summary Report – published on 19 December 2025 – summarises feedback of stakeholders and shows broad alignment with the ACM’s position. For instance, 72% of the respondents support new binding rules on deceptive design and 70% of the respondents support new binding rules in relation to digital products, such as video games. As such, should the Commission decide to follow this broad consensus when drafting the legislative proposal, the ACM’s contribution may well offer a strong indication of the direction the Digital Fairness Act might take.

As a next step, the legislative proposal is expected by the end of 2026. How far the consultation results and positions of authorities such as the ACM will be reflected in the final proposal will only become clear as the legislative process progresses.