The Digital Fairness Act is open to public feedback and planned for adoption in the third quarter 2026. Our blog series provides legal insights analysing the European Commission’s (EC) Digital Fairness Fitness Check. This instance puts a spotlight on an area that is modestly headlined as “other problems” in the Digital Fairness Fitness Check report but nevertheless is considered to pose significant risks to consumers. It encompasses dropshipping, AI chatbots, scalper bots and ticket sales.
I. What may be problematic about dropshipping, bots and ticket sales?
Dropshipping is a retail model where sellers offer products that they don’t physically stock. Instead, when a consumer places an order, the seller passes the order to a third party who ships it directly to the customer and takes care of possible returns. The third party may be a wholesaler or producer and is oftentimes located outside the EU. This practice poses certain challenges regarding its transparency, as consumers may face difficulties identifying where the traders are based and from where their products are shipped; as well as uncertainties regarding the protection of consumer rights against traders that are based outside the EU.
Chatbots that are powered by AI may be used by traders to support efficient and targeted communication. Consumers also increasingly start to use AI chatbots as a search engine for product and service recommendations. The use of such technology may affect the effective exercise of consumer rights if consumers cannot contact a human interlocutor and if there is lack of human intervention. It is also important to maintain transparency where responses to users’ queries are based on or include sponsored content, advertorials or other commercial communications.
Scalper bots are automated software programs designed to purchase products in high demand such as concert tickets, limited-edition sneakers, or gaming consoles, with a view to reselling them at a (much) higher price. These bots are typically used by non-EU resellers (or "scalpers") to buy up inventory the moment it becomes available. Since these resellers will then only sell the products with a surcharge, the use of scalper bots may increase the price level of products and services in high demand and deprive consumers of equal opportunities to purchase them directly.
Certain practices regarding ticket sales in the event sector – while not problematic per se – can have detrimental effects on consumers. This includes dynamic pricing and certain ticket reselling practices. Dynamic pricing refers to the practice of adjusting product prices rapidly and flexibly in response to real-time market demand and conditions.
II. What are the main results of the Digital Fairness Fitness Check?
Main results on dropshipping
Dropshipping is generally legal under EU consumer law, provided that consumer protection rules are complied with, e.g., regarding product safety or pre-contractual information. There have only been a few examples of enforcement and emerging laws on dropshipping in the EU: France launched a scam awareness campaign in 2021 and introduced a law targeting influencer marketing in 2023 (Law No. 2023-451) that requires transparency about suppliers and product legality. Additionally, the European 2021 reform of VAT rules on cross-border B2C e-commerce activities removed the small parcel exemption and imposed new rules on low-value imports, presumably impacting dropshipping’s appeal according to the report. In the consumer survey conducted for the Digital Fairness Fitness Check, 45% of consumers encountered situations where they did not consider it sufficiently clear that the website or app was an intermediary passing order details to a third-party manufacturer or seller. As we have pointed out in our first blog of this series, the results of the surveys for the Digital Fairness Fitness Check must be taken with a grain of salt, mainly because they ask for subjective impressions and because the quality of the data is often limited.
Main results on AI chatbots
According to the Digital Fairness Fitness Check, 44% of consumers reported that they struggled to resolve issues with a company because they were limited to communication with automated chatbots with no access to a human. 64% of the participants expressed concern about businesses using AI chatbots. It is unclear whether such concerns – which are not uncommon if people are confronted with new technologies – will vanish over time as AI systems quickly become more reliable and common. In any event, there is no general rule that consumers must always have the possibility to interact with a human when they are in touch with a company. However, certain rules apply, for example:
- The EU AI Act mandates human oversight for high-risk AI systems, and allows individuals to request explanations for decisions made by such systems. See our EU AI Act unpacked blogpost series #5: “Key governance obligations in relation to high-risk AI systems” for further details.
- In financial services, the revised Directive on Distance Financial Services (Directive (EU) 2023/2673) introduced a right to human intervention at the pre-contractual stage and, in justified cases, after the distance contract has been concluded. Similarly, the revised Consumer Credit Directive (Directive (EU) 2023/2225) grants a right to human intervention where the creditworthiness assessment involves the use of automated processing of personal data.
- The Digital Services Act established that providers of intermediary services must not solely rely on automated tools for their direct communication with recipients of the service, and that decisions by online platforms in the internal complaint-handling process must be taken under the supervision of appropriately qualified staff, and not solely on the basis of automated means.
- The General Data Protection Regulation provides the right not to be subject solely to an automated decision-making that has legal or similarly significant effects, for example in the context of credit scoring.
Main results on scalper bots
The use of scalper bots is subject to the limitations set by the revised Unfair Commercial Practices Directive (Directive 2005/29/EC) which prohibits reselling events tickets to consumers if the trader acquired them by using automated means to circumvent any limit imposed on the number of tickets that a person can buy or any other rules applicable to the purchase of tickets.
The Digital Fairness Check report further mentions media reports and consumer complaints about scalping practices in case of other products, such as gaming consoles, graphic cards and sneakers. In fact, media reported on scalping practices during the COVID-19 pandemic that were targeting gaming consoles (PlayStation 5 and Xbox Series X), high-end graphic cards, and limited-edition sneakers (by Nike, Adidas Yeezy); see for example the extensive use of scalper bots to buy up sneakers reported by Bloomberg.
However, the Digital Fairness Check report lacks details as regards the magnitude of scalper bot practices specifically in the EU and in recent years, particularly after the limits introduced by the revised Unfair Commercial Practices Directive in May 2022. Consumer complaints raised by consumer organizations do not include scalping explicitly, they rather reflect similar consumer concerns about unfair pricing, artificial scarcity, and exploitative tactics. The lack of clarity regarding the frequency and scope of the scalper bot issue may well be linked to the difficulty in detecting scalper bots. In any event, the limited factual basis in this regard makes it more difficult to assess whether (and, if so: which) legislative intervention is appropriate.
Main results on ticket sales
Currently, dynamic pricing is not prohibited under EU consumer law. As a core principle of the freedom to conduct a business, traders are of course generally free to set their prices, provided that consumers are clearly informed of the total price before purchase. However, certain commercial practices related to dynamic pricing may, in specific cases, violate the Unfair Commercial Practices Directive, for example, if prices increase during the booking process after the consumer has already initiated payment.
In July 2023, Members of the European Parliament called on the EC to further investigate dynamic pricing practices in the event ticketing sector. They urged the EC to consider additional legislative measures, such as enhancing transparency requirements or introducing price caps. The EC’s written answer pointed to the Digital Fairness Fitness Check being conducted at that time and further mentioned that dynamic pricing is allowed under EU consumer protection law, that there are no proceedings opened in this regard but that the EC will continue to monitor practices in the media and entertainment markets, including pricing patterns.
Regarding ticket reselling, the consumer survey revealed that 33% of respondents had encountered situations where they wished to purchase tickets for an event but found only secondary market offers available, often at significantly higher prices. This, in itself, is however no reliable proof of problematic practices in the ticketing sector: The number of tickets to (popular) concerts or sporting events is (naturally) limited, so situations of scarcity will always occur. The mere fact that consumers found that tickets were still available on the secondary market does not allow for conclusions to be drawn about the scale of such offers.
III. Taking Action: Potential countermeasures
Dropshipping
The Digital Fairness Fitness Check targeted survey found that only 28% of survey respondents felt that EU consumer law offers sufficient clarity on dropshipping, while 57% supported introducing more transparency requirements, leading the EC to conclude a potential need for enhanced consumer information on this business model. The Digital Fairness Fitness Check does not consider any specific measures, however, considering the fact that France as the only EU Member State to date has passed laws in this field, one may assume that the EC is aiming at a solution similar to the French model. Therefore, future transparency obligations may include the obligation to clearly disclose when products that are promoted (or sold) via dropshipping, identifying the actual supplier and ensuring the availability and legality of the products.
AI chatbots
65% of the participants expressed support for a consumer right to request human interaction when AI chatbots are used, particularly for handling complaints and inquiries. The result and above-mentioned recent legislations prove a shift towards a more human-centred approach to AI in business-to-consumer customer service. The EC found that the impact of AI on areas such as search advertising and other stages of the consumer’s transactional journey requires ongoing monitoring as the market evolves. Given the proliferation and advancement of AI chatbots in customer service, further regulatory measures may be necessary to safeguard consumer choice and ensure that consumers can effectively exercise their rights. At least, businesses should not assume that they will be able to handle all their customer service exclusively by automated means. On the other hand, restricting the use of AI chatbots seems unnecessary if a company still offers a variety of other communication channels (e-mail, telephone, etc.).
Scalper bots
The Digital Fairness Fitness Check report highlighted the need for continued monitoring of scalper bot usage in relation to event tickets and other high-demand products, in order to better assess the extent of consumer harm. At this stage, it remains uncertain whether specific obligations will be imposed on traders. Instead, the EC is expected to focus on clarifying the definition of scalping, establishing acceptable resale price thresholds, and addressing the practical enforcement challenges posed by the cross-border nature of such practices. Establishing acceptable resale price thresholds appears to be a particularly problematic tool in this context: While it may discourage scalpers, it also restricts the ability of businesses to set their prices freely as an important pillar of a free market. The justification for such drastic measures may be difficult, given that scalping usually concerns mere consumer goods, not basic necessities. However, according to the targeted survey, only 27% of respondents believed that EU consumer law currently offers moderate or strong regulatory clarity regarding scalping. In the public consultation, 60% of stakeholders expressed support for further restrictions on scalping for resale purposes.
Ticket sales
The Digital Fairness Check report highlights that several stakeholders identified ongoing issues in the secondary ticketing market and proposed additional regulatory measures, including:
- requiring resellers to disclose additional information such as the original ticket price, added fees or charges, and seat location,
- setting price caps on resale,
- ensuring that uncapped resale platforms clearly indicate their status in search engine results, and
- creating official resale platforms managed by event organizers or authorized entities to promote fair pricing and ticket authenticity.
In the public consultation, 53% of stakeholders supported stricter information requirements for secondary market ticket sales. The EC concluded that the extent of the problems with dynamic pricing in the event ticket sector should be further monitored, and that enhanced transparency in resale practices regarding ticket reselling may become necessary.
Overall, the EC appears to be taking an oversight-oriented approach to dropshipping, bots and ticket sales, adopting a monitoring role with respect to current practices and their impact on consumers prior to considering further invention, as emphasized in the Digital Fairness Fitness Check Furthermore, while dynamic pricing is mentioned in the call for evidence for the impact assessment, dropshipping, bots, and ticket sales are not included in the survey for the public consultation on the Digital Fairness Act. Thus, it remains to be seen whether (and how) the upcoming Digital Fairness Act will introduce changes in the legislative framework.
In our next instalment of our Digital Fairness Fitness Check blog series, we will shed a light on cross-jurisdictional enforcement through the CPC network. Stay tuned!
