Difference between UK consumer laws (including DMCC Act) and equivalent EU laws
23 February 2024
This note sets out the key differences in consumer law between UK and EU consumer laws. This includes, for the UK, the Consumer Rights Act 2015 (CRA), Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPR) and proposed changes under the Digital Markets, Competition and Consumers (DMCC) Act 2024 which received Royal Assent in May 2024. For the EU it includes the Omnibus Directive (EU) 2019/2161, the Sale of Goods Directive (EU) 2019/771 and the Digital Content Directive (EU) 2019/770 (DCD) which have become law in EEA member states since the UK left the EU.
| UK law including proposals under DMCCAct | EU Laws |
| Digital Content | |
| The CRA covers services and digital content (as well as goods). | The DCD applies to both “digital content” and “digital services”, for example digital television services and Software as a Service. |
| The CRA applies to contracts for the supply of digital content by a trader to a consumer where the consumer has paid for the digital content, or where it is supplied free with goods, services or other digital content for which the consumer has paid. Consequently, the statutory rights and remedies do not apply where digital content is provided for ‘free’, except for the remedy for damage caused to the consumer’s device or other digital content. | The DCD applies to contracts for the supply of digital content/services by a trader to a consumer where the consumer either pays a price or provides personal data to the trader in exchange. The DCD therefore treats personal information as a form of payment in certain circumstances. |
| The CRA does not specify a time of supply for digital content. Services must be performed within a reasonable time where no date or time period is specified in the contract. | Under EU law, digital content/services must be supplied by the trader without undue delay after the contract has been agreed, unless the parties agree otherwise. |
| Under the CRA, it is an implied term of the contract that the trader has the right to supply the digital content to the consumer. The consumer has the right to a refund if the trader is in breach of this implied term. This only applies to digital content that a consumer has paid for. | Consumers are entitled to remedies for non-conformity if they cannot use the digital content/services because of a breach of any third-party right, (eg intellectual property rights), unless national law provides that the contract is nullified or rescinded in such cases. |
| During the first six months, there is a presumption that the digital content did not conform with the contract when it was supplied, and the burden of proof is on the trader to prove otherwise. | Subject to limited exceptions, the burden of proof if the digital content/service conformed with the contract when it was supplied is on the trader for one year from the time the digital content/service was supplied for one-off supplies; or the length of the contract for continuous supplies (for a minimum of two years) |
| The CRA does not contain integration requirements. However, a consumer has the right to a repair or compensation where they can demonstrate that the digital content caused damage to a device or to other digital content belonging to them and the damage is of a kind that would not have occurred had the trader exercised reasonable care and skill. | Where the digital content/service is incorrectly integrated into the consumer’s digital environment either by the trader, on the trader’s behalf or by the consumer following the trader’s instructions, the consumer will be entitled to the remedies for non-conformity. |
| The CRA does not contain trader or consumer obligations on termination. |
After a contract is terminated, the trader must (subject to some exceptions) not use any content which was provided or created by the consumer when using the digital content/service. The trader must also make such content available to the consumer on request, except for personal data. In addition, the consumer must not use the digital content/service or make it available to third parties. The trader can also prevent further use of the digital content/service (eg by making it inaccessible or disabling the consumer’s user account). They can also request (within 14 days and at their cost) the return of the tangible medium on which the digital content was supplied. In these circumstances the consumer must return it without undue delay. |
| The CRA does not contain a right to redress for traders from people up the chain – traders are advised to have back-to-back contracts. | Traders have a right to redress from someone up the chain if they are liable to the consumer for a lack of conformity or a failure to supply to the consumer, so that they can cover their liability towards the consumer. |
| The CRA permits modifications (including updates and enhancements) to the digital content by the trader or a third party subject to conditions. It does not require updates. | Traders must provide updates under the terms of their contract with the consumer. In addition, they must provide consumers with any updates (including security updates) required to keep the digital content/service in conformity. If products are being supplied longer term, the trader must provide updates throughout the supply period. For one-off supplies, traders must provide updates for a period that the consumer may reasonably expect. |
| Under the CRA, a trader may make modifications to digital content, as long as the contract provides that the trader or a third party may make modifications to the digital content, and the modified digital content continues to be of satisfactory quality, fit for purpose and as described. |
A trader may make modifications to digital content if the contract allows this and there is a valid reason for the modification; the modification is made without additional cost to the consumer; the consumer is informed in a clear and comprehensible way about the modification and if the modification has a negative impact on the consumer’s access to or use of the digital content/service (in more than a minor way), the consumer is informed reasonably in advance on a durable medium of the features and time of the modification, and their right to terminate the contract within 30 days or their option to keep the digital content/service without modification. |
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The CRA provides tiered remedies (although there is no formal right to terminate). The consumer can require non-conforming digital content to be brought into conformity within a reasonable time, free of charge and without significant inconvenience. If the trader fails to do so, or this remedy is impossible or disproportionate, the consumer can request a price reduction (which can be up to the full contract price). The consumer may also request a refund where the trader does not have the necessary rights to supply the digital content, and also has the right to a repair or appropriate compensation if the digital content damages the consumer’s device/other digital content. |
The DCD provides tiered remedies. The consumer may have non-conforming digital content/services brought into conformity within a reasonable time, free of charge and without significant inconvenience. If the trader fails to do so, or this remedy is impossible or disproportionate, then the consumer can request a price reduction or terminate the contract (unless the non-conformity is minor). The consumer may also terminate where the trader fails to supply the digital/services. |
| Unfair trading practices | |
| The CPR are revoked and replaced with very similar provisions in the DMCC Act. There are no specific provisions relating to greenwashing. | The EU has proposed a new Green Claims Directive to introduce new unfair commercial practices related to greenwashing. |
| Comparative advertising is covered under the CAP and BCAP Codes. | It is a misleading commercial practice to market a good in one EU Member State as being identical to a good marketed in other EU Member States if that good has significantly different composition or characteristics (unless justified by legitimate and objective factors), if it causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise. |
| The trader’s complaint handling policy is ‘material information’ when considering whether there has been a misleading omission in respect of an invitation to purchase. | The trader’s complaint handling policy is not ‘material information’ in invitations to purchase for the misleading omission prohibition. It only has to provided pre-contract. |
| There are no provisions relating to keywords searches. | Information on the main parameters determining the ranking of products presented to the consumer as a result of a search query and the relative importance of those parameters is considered ‘material information’ under the misleading omission prohibition. Traders must provide such information to consumers in a clear, intelligible, unambiguous and timely manner. |
| The UK government has consulted on further changes to consumer law to cover online marketplaces as part of its review of product safety legislation. | For products offered on online marketplaces, whether the third party offering the products is a trader or not is ‘material information’ in invitations to purchase for the misleading omission prohibition. Traders must provide such information to consumers in a clear, intelligible, unambiguous and timely manner. |
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The DMCC Act includes new banned practices related to fake reviews. But the information will not be considered material information as under EU law. Broadly, the banned practices will be to:
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If traders publish reviews, they must provide details about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product. It is “material information”, which means it falls within the misleading omission prohibition if not provided. They must provide such information to consumers in a clear, intelligible, unambiguous and timely manner. It is a prohibited practice for sellers to state that reviews of a product were written by consumers who have actually used or bought the product without taking reasonable and proportionate steps to check this is actually the case. It is also a prohibited practice for a trader to submit or commission false consumer reviews or endorsements, or to misrepresent consumer reviews or social endorsements, to promote products. |
| Under the CPR, consumers have individual remedies (the rights to unwind, a discount and damages). However, these only apply if the trader has engaged in a misleading action or aggressive commercial practice. | Consumers have individual remedies regarding unfair commercial practices, including (as a minimum) the right to a price reduction or to terminate the contract, and the right to seek compensation. |
| The CMA investigated hotel booking sites’ failure to disclose the effect of payments on search results. It issued principles to help websites to avoid breaching the general principles of the CPR. | It is a prohibited practice to provide online search results without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results. |
| The Breaching of Limits on Ticket Sales Regulations 2018 make it a criminal offence for someone to use software or ‘bots’ to try to buy more than the permitted number of tickets to resell them for a profit. The CMA has also investigated ticket reselling but the UK government has ruled out further regulation other than allowing the CMA greater enforcement powers in the DMCC Act. | If a trader obtains tickets using automated means to get around purchase limits or other terms of purchase, it may not resell them to consumers. |
| The DMCC Act gives the CMA the power to enforce consumer protection law directly, with powers to impose fines of up to 10% of the firm’s global annual turnover or £300,000, whichever is higher, for infringements of certain consumer protection legislation. | National regulators can impose fines of at least up to 4% of a trader’s turnover for widespread cross-border infringements. This excludes breaches of the DCD. |
| Consumer Rights | |
| Ofcom has removed requirements for fax services to be provided. The trader must provide the geographic address at which the trader is established and, if available, the trader's telephone number, fax number and email address. However, this is not enforced, with chatbots increasingly becoming the norm. | A trader must provide both a telephone number and email address but no longer has to provide a fax number. |
| The UK does not have rules about personalised pricing, but other laws such as general consumer law, data protection law and discrimination laws apply. | If traders have personalised the price by automated decision making, they must tell the consumer as part of the pre-contract information. |
| Traders must provide information about compatibility and functionality regarding digital content, but not interoperability. | Traders must provide information about functionality, interoperability and compatibility for goods with digital elements, digital content and digital services.. |
| The DMCC Act tackles “subscription traps” by imposing new duties on traders. They must give specific pre-contract information to consumers, send reminders to consumers before a contract rolls over or auto-renews into a new term, provide rights for consumers to cancel subscription contracts during cooling-off periods, and ensure that consumers have a straight-forward mechanism to terminate the subscription contract. | The EU is considering changes in this area as part of its consumer law Fitness Check, see below. |
| Price Advertising | |
| The Price Marking Order 2004 is under review. The CPR and the CAP and BCAP Codes currently regulate price advertising, and there is also guidance in the Trading Standards Pricing Practices guide. | EU law says that any statement of a price reduction must specify the prior price applied by the trader for a set period before the price was reduced. “Prior price” is the lowest price charged by the seller for a period of at least 30 days before it reduced the price. |
What else is on the horizon?
The EU issued a report in April 2023 which suggested that the most common issues consumers face are around subscription practices, so-called “dark patterns”, and use of personal data. The Commission’s full report is set to be published in the second quarter of 2024. Once published, it will provide a clearer idea of whether changes may be made to EU consumer laws and if so, where. However, the interim findings suggest that there are some legal gaps and uncertainties to address.
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