European Commission Proposes European Accessibility Act
In 2011 the European Commission announced it would propose a “European Accessibility Act” in 2012. The “Act” was to be an EU instrument which would seek to ensure a free market in products and services which were accessible to people with disabilities.
Preparing the “Act” clearly proved more difficult than initially envisaged. However, some five years later, in December 2015, the Commission finally published the long awaited proposal. The “Act” takes the form of a directive “on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services”(COM(2015) 615/2). The proposed directive has Article 114 TFEU (on the internal market) as its legal basis, and “aims to contribute to improve the proper functioning of the internal market and remove and prevent barriers for the free movement of accessible products and services”. Such barriers result from differing national and regional standards regarding accessibility requirements for products and services. These barriers are only likely to increase in the near future as EU Member States are under an obligation to promote accessibility under the UN Convention on the Rights of Persons with Disabilities. The EU is also a party to the Convention, and this is referred to in the proposal. Stimulating an internal market in accessible products and services thus does not only promote economic goals, but also respects the rights of persons with disabilities to use and access goods and services, and therefore encourages participation and independent living. This is recognized in the proposal.
The proposal does not cover all products and services. Instead, a selection has been made based on those products and services where the Commission feels barriers already exists, or are likely to emerge in the future. The proposal therefore covers computer hardware and operating systems, self-service terminals (ATMs, ticketing machines and check-in machines), and consumer terminal equipment related to telephony and audio-visual media services (under products); and telephony and audio-visual media services, passenger transport services, banking services, e-books and e-commerce (under services). The proposal also provides that for those existing EU instruments which establish accessibility obligations without providing exact accessibility requirements or specifications, accessibility is to be defined by reference to the new directive. This applies for example to the Public Procurement Directives, which strongly encourage the purchase of accessible goods and services.
Accessibility for the covered products and services is not defined in terms of detailed technical requirements. Instead the proposal makes use of what are called “functional accessibility requirements”. This means the proposal identifies what aspects of the good/service have to be accessible but it does not specify how this is technically done. The proposal defines “accessible products and services” as “products and services that are perceptible, operable and understandable for persons with functional limitations, including persons with disabilities, on an equal basis with others”. “Persons with functional limitations” are defined as “persons who have any physical, mental, intellectual or sensory impairment, age related impairment, or other human body performance related causes, permanent or temporary, which in interaction with various barriers result in their reduced access to products and services, leading to a situation that requires adaptation to their particular needs of those products and services”. The proposal thus addresses accessibility needs beyond the group of people with disabilities.
Whilst the proposal does not set out technical accessibility requirements, the EU standardization bodies have produced harmonised technical standards relating to accessibility for some products and services (this was done following earlier requests from the European Commission) and, if a product or service complies with such existing standards, there will be a “presumption of conformity” that it is accessible and can be marketed throughout the EU. The Commission also retains the right to adopt common technical specification relating to accessibility under the proposal if necessary. The obligation to provide accessibility is not absolute, and can be removed if providing accessibility would result in a fundamental alteration to the product or service, or result in a disproportionate burden for the economic operator concerned.
The duty to provide accessibility will fall on a wide variety of economic operators: manufacturers, importers, distributors and service providers. In the first instance it will be up to the economic operators to determine compliance with the accessibility requirement, but market surveillance authorities have the power to review this assessment and can even order the withdrawal or an inaccessible product from a market. Consumers are also to be enabled to initiate action in ensure compliance with national measures based on the Directive.
The proposal has generally been welcomed by the European Disability Forum, which is the main civil society organization representing people with disabilities in Europe, although the organization would like see more comprehensive provisions. It is certainly true that a rather limited number of products and services, albeit highly important ones, are covered by the proposal.