‘Dark patterns’ case sees digital regulation and consumer law collide

Influencing consumer behaviour positively is the aim of every business, but strict rules apply to online platforms in the EU over how they do that – the Digital Services Act (DSA) provides for a general ban on use of so-called ‘dark patterns’.

A ruling by a regional court in Germany earlier this year, however, confirmed that online platforms might need to look beyond their compliance with the DSA to more general EU consumer law provisions when assessing whether their practices constitute banned dark patterns.

The Federal Court of Justice in Germany has been asked to hear an appeal in the case. If it decides to do so, it could set much wider legal precedent across Germany and could influence how compliance with the DSA’s dark patterns rules is assessed elsewhere in the EU too.

Dark patterns and the German case

Dark patterns are described in the DSA as being practices that materially distort or impair, either on purpose or in effect, the ability of recipients of online services to make autonomous and informed choices or decisions. Article 25(1) of the DSA prohibits online platforms from designing, organising or operating their online interfaces in a way that deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.

In a case ruled on in February, the Higher Regional Court of Bamberg ruled that a consumer organisation could not rely on article 25(1) of the DSA to bring an end to alleged dark patterns used on an event ticketing website.

The Verbraucherzentralen Bundesverband e.V. (“Verbraucherzentrale”) complained that Eventim – a platform where organisers can promote and sell tickets for their events – repeatedly nudged consumers to take out optional insurance when purchasing tickets on its platform in a way that impaired their decision-making choices – including by how it placed visual emphasis on the insurance option. It brought a legal action seeking a court order requiring Eventim to cease the practices.

German law on unfair competition and injunctions

Under German law, private enforcement of competition rules is well established and allows competitors, consumer protection associations, and other qualified entities to bring claims before civil courts. This mechanism serves as an important complement to public enforcement, enabling private actors to challenge anti-competitive practices directly.

The Act Against Unfair Competition (UWG) provides the legal basis for such claims, particularly under Sections 8 to 10. In addition, the Injunctive Relief Act (UKlaG) empowers qualified entities to seek injunctions against unlawful commercial practices, especially those affecting consumer rights. These provisions ensure that market participants can actively contribute to maintaining fair competition and protecting consumer interests through judicial remedies.

The arguments and decision in the Eventim case

In support of its case, the Verbraucherzentrale cited article 25(3) of the DSA.

Article 25(3) provides scope for the European Commission to issue guidelines to specify practices that are subject to the article 25(1) ban. No such guidelines have yet been issued, but practices that could be specified in guidelines could, according to article 25(3), include giving more prominence to certain choices when asking the recipient of the service for a decision; repeatedly requesting that the recipient of the service make a choice where that choice has already been made, especially by presenting pop-ups that interfere with the user experience, and; making the procedure for terminating a service more difficult than subscribing to it.

Eventim opposed the claim filed against it. It said the practices complained of were not subject to the DSA’s dark patterns ban, because they fell within the scope of article 25(2) of the DSA.

Article 25(2) provides that the article 25(1) ban on dark patterns does not apply to practices covered by either the EU’s Unfair Commercial Practices Directive (UCPD) or General Data Protection Regulation (GDPR). In this case, Eventim claimed the practices constituted business-to-consumer commercial practices pertaining to sales covered by the UCPD – and that since the practices complained of were not expressly prohibited under the UCPD, Verbraucherzentrale’s application under Article 25 of the DSA was precluded.

The Higher Regional Court of Bamberg ruled that Verbraucherzentrale could not rely on articles 25(1) and 25(3) of the DSA to support its claim for an injunction, since it considered the practices were covered by the UCPD as Eventim had argued.

Implications of the ruling

In this case, the court considered that the legality of Eventim’s insurance offering practice fell to be assessed under the UCPD as a potential unfair commercial practice, and not under the DSA. However, it does not mean that the principles laid out in article 25(1) and (3) DSA will not be relevant to how the UCPD will be interpreted by the courts going forward in the context of other complaints over alleged dark patterns.

According to article 5(2) of the UCPD, a commercial practice is considered to be unfair if it is contrary to the requirements of professional diligence, and it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

Article 2(e) of the UCPD confirms that: ‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer's ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise.

By prohibiting certain interface design practices in article 25(1) of the DSA, EU law makers imposed design obligations on commercial online platform providers that arguably constitute ‘requirements of professional diligence’. In addition, the article 25(1) provisions and examples cited in article 25(3) make clear that deviations from these standards can significantly impair a consumer’s ability to make informed decisions, potentially leading them to make transactional choices they would not have otherwise made.

Therefore, depending on the facts of a case, it is possible that online platforms could be considered in breach of professional diligence requirements under article 5(2) of the UCPD if they use dark patterns in how they design their services.

This reasoning by the court introduces article 25(1) DSA through the back door. It raises a conceptual concern: if a violation of article 25 DSA were automatically deemed an unfair commercial practice under Article 5(2) of the UPCD, then article 25(1) of the DSA would never apply due to the precedence of unfair competition law – a somewhat circular line of argument.

Other rules under the UCPD that provide for misleading or aggressive commercial practices to be considered unfair too, could also be relevant.

With the Bamberg court establishing a link between articles 25(1) and 25(3) of the DSA and article 5(2) of the UCPD, it suggests that compliance with unfair commercial practices law could take on added relevance for online platforms in relation to the way they seek to influence consumer behaviour.

The case is subject to appeal before the Federal Court of Justice in Germany, which has still to decide whether to hear that appeal. If it does, the federal court could give a significant judgment of binding relevance in Germany and of broader influence potentially across the EU, on how German unfair competition law applies, and/or on how article 25 of the DSA and the UPCD interact, in the context of dark patterns, in what is a relatively new area of law and amidst ever-changing commercial practice.