Recital 41

(41)Dark patterns on traders’ online interfaces are practices that materially distort or impair, either on purpose or in effect, the ability of consumers who are recipients of the financial service to make autonomous and informed choices or decisions. This is particularly true for financial services contracts concluded at a distance. Such practices can be used by traders to persuade the consumers who are recipients of their service to engage in unwanted behaviours or to take undesired decisions which may have negative consequences for them. Traders should therefore be prohibited from deceiving or ‘nudging’ consumers who are recipients of their service and from distorting or impairing their autonomy, decision-making, or choice via the structure, design or functionalities of an online interface or a part thereof. This can include, but is not limited to, exploitative design choices to direct the consumer to choices or actions that benefit the trader, but which may not be in the consumer’s interests, by presenting choices in a non-neutral manner, such as giving more prominence to certain choices through visual, auditory, or other components, when asking the consumer for a decision. While Regulation (EU) 2022/2065 of the European Parliament and of the Council ¹⁴ prohibits intermediary service providers operating online platforms from using dark patterns in the design and organisation of their online interfaces, this Directive should oblige Member States to prevent traders offering financial services at a distance from using such patterns when concluding contracts for such services. The provisions of that Regulation and this Directive are therefore complementary, since they apply to traders acting in different capacities. Since, by reason of their complexity and inherent serious risks, financial services might necessitate further detailed requirements regarding dark patterns, Member States, by way of derogation from the full level of harmonisation, should be allowed to maintain or introduce more stringent provisions, provided that such provisions are in conformity with Union law. That possibility is in line with Article 3(9) of Directive 2005/29/EC of the European Parliament and of the Council ¹⁵ , with regard to unfair commercial practices related to financial services, which provides that Member States can also impose requirements which are more restrictive or prescriptive in the framework of financial services.