Back to the Future-Proof: Four Reforms for the Better Regulation of Dark Patterns under the Unfair Commercial Practices Directive and Article 25 of the Digital Services Act

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.