Abstract The efficacy of the “future-proof” Unfair Commercial Practices Directive against dark patterns is undermined by the fragmented regulatory landscape introduced by the Digital Services Act. Article 25 DSA creates four weaknesses: a general prohibition that is vague compared to the UCPD’s detailed framework; a narrow subjective scope that excludes many online traders; an exclusion clause in Article 25(2) that replaces cumulative application with an opaque hierarchy; and slow soft-law mechanisms for updating the law in response to new dark patterns. To resolve these contradictions, this article proposes four targeted reforms: first, repurposing Article 25(1) DSA as an institutional gateway for DSA authorities to apply substantive UCPD rules using the stronger DSA sanctions and enforcement regime; second, extending the prohibition’s scope to all intermediary service providers; third, the repeal of Article 25(2) DSA; and fourth, granting the Commission the power to update the UCPD blacklist via delegated acts for a swift response to emerging dark patterns. These reforms, particularly in combination, offer a coherent, future-proof regulatory framework that restores the centrality of the UCPD, preserves the innovations of the DSA, and equips EU law to address both current and emerging forms of dark patterns.
Esposito et al. (Thu,) studied this question.