New regulations in Art. 246b § 4 EGBGB and § 5 (6) UWG
What is new?
On 19 June 2026, the new Art. 246b § 4 Introductory Act to the Civil Code (“EGBGB”) will come into force. The provision prohibits the use of manipulative practices ("dark patterns") – specifically when concluding distance contracts for financial services. "Dark patterns" are digital design techniques that are likely to mislead users into making decisions that have negative consequences for them or deceiving them.
Specifically, the new legal situation requires companies to design their online user interfaces (especially websites and apps) in such a way that consumers are "not deceived or manipulated or otherwise materially distorted or impaired in their ability to make a free and informed decision" when concluding an online financial services contract (Art. 246b § 4 (1) EGBGB (new)).
At the same time, a new Sec. 5 (6) Unfair Competition Act (“UWG”) stipulates that a commercial act that violates Sec. 312d (2) sentence 2 BGB in conjunction with Art. 246b § 4 (1) EGBGB – i.e. the prohibition of dark patterns in the distance selling of financial services – is misleading and thus also constitutes a violation of the UWG and is therefore unfair.
Legal background
The background to the new standard are the provisions of Art. 16e (1) of Directive (EU) 2023/2673 amending the Directive on the distance marketing of financial services contracts. Art. 16e (1) reproduces almost verbatim Art. 25(1) of the Digital Services Act, which applies only to online platforms, thereby incorporating it into the regulatory context of the Consumer Rights Directive in the area of financial services with the applicable requirements and sanctions. Unlike, for example, in the UWG (Unfair Competition Act), there is currently no written prohibition on misleading or unfairly influencing consumers in German civil law. The EU regulation is implemented in Art. 2 of the Act Amending Consumer Contract and Insurance Contract Law (Federal Law Gazette 2026 I No. 28) with the new Art. 246b § 4 EGBGB. The obligations apply from 19 June 2026.
Who is affected?
The new provisions of Art. 246b § 4 EGBGB apply to
- the conclusion of financial services contracts (including banking services and any service related to the granting of credit, insurance, personal pensions, financial investments or payments) via
- so-called "online user interfaces" (software, including websites, as well as mobile apps) by consumers.
What needs to be done? Requirements and prohibitions
Art. 246b § 4 EGBGB now contains specific prohibitions on individual dark patterns:
a) Giving more prominence to certain choices when asking the consumers who are recipients of their service for a decision (e.g. so-called "visual interference").
- In particular, designs using colour, size, labelling or other web design elements that graphically influence the choice.
- When decision-making is made more difficult by requiring more effort or more steps in web design, e.g. through long click paths.
b) Repeatedly requesting that consumers who are recipients of the service make a choice where that choice has already been made, especially by presenting pop-ups that interfere with the user experience.
- Displaying a pop-up window (known as "nagging").
- Even if the consumer deliberately does not click on a button but simply closes the website.
c) Making the procedure for terminating a service more difficult than subscribing to it (so-called "roach motel").
- Examples include misleading texts or designs or long click paths. The principle of mirroring applies: terminating the service must not be more complicated than registering for it.
At the same time, providers have a legitimate interest in implementing user-friendly menu navigation and customer experience on their websites and application processes.
Only "material" distortion or impairment is relevant
As an additional requirement, the new Art. 246b § 4 EGBGB stipulates that the consumer must not be "materially" distorted or impaired in their decision. However, the law leaves open what exactly is meant by a "material" distortion or impairment.
According to a decision by the Higher Regional Court of Bamberg on 5 February 2025 (Ref. UKL 11/24 e) on the identical requirements in Art. 25 (1) of the Digital Services Act, there is no violation if a manipulative practice within the meaning of the Digital Services Act is used and thereby impairs "any" potential user in their free decision-making, but only if the materiality threshold is exceeded. In this context, reference must be made to an average and thus "reasonably well-informed and reasonably observant and circumspect user". Only when this user is impaired to such an extent that they adapt their behaviour in line with the operator's objective is the materiality threshold exceeded. The relevance of the Higher Regional Court's ruling is also underlined by its mention in the legislative materials for the amendment to the UWG. However, in the absence of a legal definition of the criterion of materiality, uncertainties remain regarding the exact scope of the new ban on dark patterns.
Consequences of violations
A violation of the new provisions is also considered a misleading commercial practice under the new Sec. 5(6) UWG, which gives rise to claims under the UWG (in particular injunctive relief, removal and damages).
Further injunctive relief may arise from Sec. 2 UKlaG. Claims for damages may also be considered.
It should also be noted that dark patterns may also constitute a violation of data protection law (in particular the requirement of voluntary and informed consent).
What should be done?
Providers of financial services are advised to check their websites and apps to see whether and what adjustments they need to make in order to comply with the requirements on dark patterns from 19 June 2026. In addition to the landing pages, the entire customer journey/online application process should be included in the review.
At this stage, it is only possible to predict to a limited extent which specific design and layout patterns will be classified as inadmissible dark patterns by the courts in future. It is therefore advisable for financial service providers to design their online user interfaces as neutrally and transparently as possible in order to prevent legal risks without unduly impairing the user experience.
In view of the effort involved, it is advisable to make any necessary adjustments at an early stage.
