Since the merging of the competition and consumer protection authority in 2013, the Dutch Authority for Consumers and Markets (“ACM”) has increasingly emphasised its role as a consumer watchdog. In this capacity, the ACM has intensified both its formal and informal supervision of B2C traders, especially in the field of e-commerce. Alongside a longstanding track record of penalising misleading and aggressive commercial practices, the ACM has recently shifted greater attention to the pricing strategies employed by online merchants, such as the use of fake discounts, the use of fake reviews and other aspects of ‘fair design’. Since 2022, stricter rules have applied to online sales, including the use of customer reviews. In addition, new rules on the display of discounts came into force from 1 January 2023, which are strictly enforced by the ACM. This blog deals specifically with this branch of consumer supervision, which continues to evolve rapidly.

Supervision on manipulative practices

For some time now, the ACM has been reprimanding online retailers for a lack of transparency, including on terms of sale (JD, Aliexpress, Vinted), terms of use (WhatsApp, Fletcher) and subscription terms (Museumjaarkaart, HelloFresh, Knaek, On that ass). However, the ACM believes that the current level of consumer protection in the digital environment remains inadequate and continues to actively address both existing and emerging forms of unfair commercial practices.

First of all, in 2022, the ACM published an update to its Guidelines on the Protection of the online consumer incorporating the Consumer Protection Modernisation Directive. Based on this directive, consumers should for example not be given the impression that they have to make a quick decision to buy something through the use of a countdown timer. Also, cancelling a subscription should be as easy as taking it up, and a consumer should not be misled in a ranking of results where certain companies have paid for a higher position. Last summer, Panteia published its research into compliance with the Guidelines on behalf of the ACM. It showed that while many online retailers are aware of the existence of consumer protection rules, they often consider the likelihood of the ACM detecting a breach to be relatively low. It also emerged that many online shops delegate the design of their websites to third parties. The ACM, however, emphasises that the webshop owner remains ultimately responsible for any violations.

During the same period, the ACM advocated for stricter (European) rules for consumer protection, including measures to ensure fair design and to limit personalised offers. Consumer protection in online sales is also a priority for the European Commission. For example, the Commission investigated manipulative practices in online shops and found that approximately 40% was engaging in such behaviour. Common practices included the use of fake countdown timers, concealing crucial information, and steering consumers towards specific choices.

Such investigations prompt EU consumer authorities, such as the ACM, to jointly roll out a unified policy and continue with (tightened) supervision of online consumer protection. In this blog, we discuss a selection of key developments from the ACM’s recent decision-making practice.

From/to prices: unclear legislation on unclear discounts

The ACM seems to be on a mission to make discounts as transparent as possible for consumers. It previously intervened against online sales platform Wish for using fake discounts. With the introduction of the Commission’s Guidance following the European Directive on the indication of the prices of products and its Dutch implementation in the Decree on Product Price Indication, the ACM has been closely monitoring several e-commerce sectors. The new rules require online retailers to display the discounted price only in relation to the lowest (‘from’) price in the past 30 days. This is to prevent online shops from artificially raising their prices and then offering a fake discount based on that inflated price, misleading consumers into thinking they are getting a better deal.

Some exceptions apply, for example for perishable products and other short-lived products, as well as for stacking discounts. When a product price is progressively reduced over a 3-month period consecutively – from 30% to 50% to, say, 70% off – the discount may be shown relative to the price that applied at the start of the sell-out period, even if more than 30 days have passed. However, no exceptions are made for typical or legitimate temporary discounts. For instance, the ACM recently reaffirmed that a temporary Black Friday discount must be shown relative to the lowest price 30 days prior. Similarly, a new discount offer within 30 days after Black Friday must be shown relative to the Black Friday price, not the standard or original price.

In the spring of 2024, following several general ‘warnings’ on its website, the ACM fined several larger online shops in the field of clothing, consumer electronics and bedding shops for incorrectly stating discounts. The ACM monitored the price movements of 10 to 15 selected products at several large webshops over a three-month period. The fining decisions show that in calculating the fine, the ACM takes into account whether there was an artificial temporary increase in price (fake discount) or erroneous discount prices that were actually applied before (legitimate discount). In the latter case, the ACM imposed a fine at the lower end of the applicable fine range. Moreover, the ACM took into account the relatively recent entry into force of the legislation by reducing the fines by 33%. Nevertheless, given their size – and despite the cooperation of three webshops in simplified settlement and capacity defences – substantial fines ranging from € 110,250 to € 176,250 were imposed.

No fines were issued for four companies investigated because the ACM’s inquiry found no actual violations or because the number of violations was fewer than four (the ACM decided to impose penalties only when there are more than four violations). Two webshops did not opt for the simplified procedure in exchange for a 10% fine reduction. While it is understandable that the ACM would prefer to handle seemingly straightforward infringements in a simplified way, it is not always advisable to admit fault and waive the right to appeal, especially when the standard has not been previously tested by the courts. After all, there is a chance that a(n) (administrative) court may come to a different interpretation than the ACM. Additionally, questions often arise in such proceedings about whether the decision complies with the general principles of good governance, such as whether imposing a fine immediately is proportionate or whether selectively fining certain webshops violates the principle of equality. One of the fined companies (Day Traders (Koopjedeal)) lodged an objection, arguing that the ACM had violated various principles of good governance. While the ACM rejected the objection, it will be interesting to see how the administrative court views the case.

Although the ACM initially proclaimed that the ‘standard’ is rather clear, in practice there still appears to be significant room for differing interpretations. For instance, while it is still permissible for online shops to display the recommended or original price in addition to the discounted price, they must not falsely imply that the discount is based on that price. For example, in the Aldi/Süd judgment, the Court of Justice ruled that the discount percentage may only be calculated in relation to the lowest price in the past 30 days, not in relation to an older (recommended) price. However, how this is implemented remains open to debate.

It seems that the ACM also recognised the need for further clarification. At a symposium in early November 2024, it took the view that – when displaying a reference price (such as a recommended retail price, a RRP (recommended resale price) or ‘original price’) –  it should always be clearly visible and static (not hidden behind an ‘i’ symbol) what that price represents. The ACM also stated that if an item is on sale for an excessively long time, continuing to present it as a discounted item could potentially be considered misleading. The determination of what constitutes an ‘excessive’ period will be assessed on a case-by-case basis, considering factors such as whether the product is seasonal.

During this symposium, the ACM announced that it is working to incorporate these principles into new guidelines, in cooperation with other European consumer authorities within the Consumer Protection Cooperation (“CPC”). Once these guidelines are published, it is likely that the ACM will again scrutinise online shops and launch a new round of enforcement.

Meanwhile, the ACM and other national consumer authorities have already taken action against the web shop Temu for, among other things, using fake discounts, countdown clocks, and scarcity claims.

Dynamic pricing

In addition to tackling fake discounts, the ACM has long been focused on ensuring transparent pricing, particularly in the telecom, travel, and used car sectors. For example, hiding costs behind an ‘i’ symbol is not acceptable to the ACM, and all unavoidable costs must be included in the total price.

A new focus in the ACM’s policy is addressing so-called price fluctuations in the travel industry. When selling package holidays, especially when they are put together virtually, a variety of travel elements from different suppliers are offered as a single package. The price of such packages can fluctuate regularly due to factors like increasing flight prices or sold-out room types. The ACM challenged several travel providers over this practice and ultimately imposed orders subject to periodic penalty payments on three of them.

However, in the preliminary injunction proceedings brought by these three providers, the orders for periodic penalty payments were suspended. The preliminary relief judge questioned whether the price fluctuations amounted to a misleading omission. The court noted that the ACM applies a different (stricter) interpretation of the rules on price displays in the travel sector than the European Commission in its Guidelines on the Unfair Commercial Practices Directive, as well as the Advertising Code Committee and its Board of Appeal, which all recognise the possibility of sudden price changes. This highlights that the ACM’s interpretation of broad standards does not always hold up in court.

Moreover, the court sided with the travel agents’ argument that the average consumer would not make a different decision about a contract based solely on possible price changes at the beginning of the search and booking process. Lastly, the court questioned whether the travel agents’ conduct distorted competition and whether enforcement was proportionate in this case.

Fair design: from fake reviews to fake countdown timers

The ACM considers the protection of digital consumers through ‘fair design’ to be a key strategic priority. Earlier, the ACM hosted a symposium on fair design in e-commerce, focusing on online influence tactics using so-called ‘dark patterns’. For instance, the rules on online influencing dictate that only the real order of search results and filters and reliable reports on availability and popularity may be shown. Explanations must be provided for personalised offers, and offering something ‘free’ cannot require payment in the form of personal data.

The ACM, in collaboration with consumer organisations and government bodies such as the police, launched an awareness campaign encouraging online shoppers to verify the reliability of unfamiliar websites by checking reviews first. According to research, 50% of consumers encounter problems when shopping online each year. The importance of reviews means consumers must be able to trust their authenticity.

The ACM already had the power to act against the use of fake customer reviews and, since mid-2022, has been empowered to take action against the sale of fake reviews. In August 2024, the ACM already issued a general warning on its website, which may soon be followed by specific enforcement actions.

Previously, the ACM has also taken informal action against the use of fake likes and fake followers on social media. For instance, in March 2022, it forced six influencers to stop using fake likes and followers. In summer 2023, the ACM also addressed dozens of online shops using misleading countdown timers. In that context, the ACM carried out an automated check of thousands of online shops, discovering at least 41 instances where, after a countdown timer expired, the same price was still available and a new timer began.

Look ahead

The ACM is increasingly expanding its consumer protection supervision, focusing on more subtle forms of (online) deception. With its enhanced digital detection capabilities, the ACM can easily monitor sector-wide compliance with consumer protection rules. While the ACM’s approach has been largely through informal discussions, giving online shops the chance to adjust their behaviour without imposing a sanction, this is not guaranteed. When the ACM considers the standard to be clear, when sufficient warnings have been issued, and/or when consumer harm is significant, the ACM may impose sanctions, including incremental penalty payments or direct fines. These fines can quickly amount to tens or even hundreds of thousands of euros for larger online shops. It is therefore crucial for businesses to stay well informed about developments in consumer protection regulations and ensure compliance without negatively impacting their operations.

If you have any questions about consumer protection or the powers of the ACM, please contact one of our specialists.