The European Accessibility Act (EAA) does provide an exception where if accessibility would amount to a disproportionate burden on covered entities, then the entity would only be required to comply with those requirements to the extent that they do not impose a disproportionate burden. However, this isn’t an easy out.
First, entities claiming the disproportionate burden exception must meet several requirements. And second, entities must make their products and services accessible up to the point where there would be a disproportionate burden. In this post, we’ll analyze the language from the directive itself to determine how to qualify and what is required to claim this exception under the EAA.
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Table of Contents
EAA Language
We first start with paragraphs 64 and 66 of the EAA:
Paragraph 64
For reasons of proportionality, accessibility requirements should only apply to the extent that they do not impose a disproportionate burden on the economic operator concerned, or to the extent that they do not require a significant change in the products and services which would result in their fundamental alteration in the light of this Directive. Control mechanisms should nevertheless be in place in order to verify entitlement to exceptions to the applicability of accessibility requirements.
This paragraph speaks plainly. Covered entities should only need to comply with accessibility requirements to the extent they either 1) don’t impose a disproportionate burden or 2) require a significant change in products or services. The last sentence states that there needs to be mechanisms in place to ensure that entities claiming this exception are indeed entitled to it.
Paragraph 66
In exceptional cases, where the compliance with accessibility requirements of this Directive would impose a disproportionate burden on economic operators, economic operators should only be required to comply with those requirements to the extent that they do not impose a disproportionate burden. In such duly justified cases, it would not be reasonably possible for an economic operator to fully apply one or more of the accessibility requirements of this Directive. However, the economic operator should make a service or a product that falls within the scope of this Directive as accessible as possible by applying those requirements to the extent that they do not impose a disproportionate burden. Those accessibility requirements which were not considered by the economic operator to impose a disproportionate burden should apply fully. Exceptions to compliance with one or more accessibility requirements due to the disproportionate burden that they impose should not go beyond what is strictly necessary in order to limit that burden with respect to the particular product or service concerned in each individual case. Measures that would impose a disproportionate burden should be understood as measures that would impose an additional excessive organisational or financial burden on the economic operator, while taking into account the likely resulting benefit for persons with disabilities in line with the criteria set out in this Directive. Criteria based on these considerations should be defined in order to enable both economic operators and relevant authorities to compare different situations and to assess in a systematic way whether a disproportionate burden exists. Only legitimate reasons should be taken into account in any assessment of the extent to which the accessibility requirements cannot be met because they would impose a disproportionate burden. Lack of priority, time or knowledge should not be considered to be legitimate reasons.
This selection is an important one. The first part states that covered entities still need to comply with accessibility requirements up until the point there is a disproportionate burden. This means that products and services still need be made as accessible as possible, up to the point where a disproportionate burden would be imposed.
The second part sets out what would be considered a disproportionate burden and balancing it against the benefit to people with disabilities. It also sets up criteria that will be defined later in the directive so that authorities and operators can determine whether the operator qualifies for the exception.
Last, the selection states that lack of priority, time, or knowledge does not constitute a disproportionate burden.
Now let’s look at paragraphs 67, 68, and 69.
Paragraph 67
The overall assessment of a disproportionate burden should be done using the criteria set out in Annex VI. The assessment of disproportionate burden should be documented by the economic operator taking into account the relevant criteria. Service providers should renew their assessment of a disproportionate burden at least every five years.
The criteria for assessing disproportionate burden are set out in Annex IV. Also, the assessment should be documented by the operator and the assessment must be renewed at least once every five years.
Paragraph 68
The economic operator should inform the relevant authorities that it has relied on the provisions of this Directive related to fundamental alteration and/or disproportionate burden. Only upon a request from the relevant authorities should the economic operator provide a copy of the assessment explaining why its product or service is not fully accessible and providing evidence of the disproportionate burden or fundamental alteration, or both.
The operator must inform authorities that it is invoking an exception. And upon a request from the authorities, the operator should provide a copy of the assessment.
Paragraph 69
If on the basis of the required assessment, a service provider concludes that it would constitute a disproportionate burden to require that all self-service terminals, used in the provision of services covered by this Directive, comply with the accessibility requirements of this Directive, the service provider should still apply those requirements to the extent that those requirements do not impose such a disproportionate burden on it. Consequently, the service providers should assess the extent to which a limited level of accessibility in all self-service terminals or a limited number of fully accessible self-service terminals would enable them to avoid a disproportionate burden that would otherwise be imposed on them, and should be required to comply with the accessibility requirements of this Directive only to that extent.
This section refers to self-service terminals and repeats that the requirements should apply to the extent that they don’t impose a disproportionate burden. The second half states that service providers should assess whether limited accessibility would enable them to avoid a disproportionate burden.
Chapter 5
Chapter 5 Article 14 memorializes the desires set out above with specifics. Let’s cover only the select details that are not obvious from the above paragraphs and most relevant to EAA compliance.
3. Economic operators shall document the assessment referred to in paragraph 2. Economic operators shall keep all relevant results for a period of five years to be calculated from the last making available of a product on the market or after a service was last provided, as applicable.
4. By way of derogation from paragraph 3, microenterprises dealing with products shall be exempted from the requirement to document their assessment. However, if a market surveillance authority so requests, microenterprises dealing with products and which have chosen to rely on paragraph 1 shall provide the authority with the facts relevant to the assessment referred to in paragraph 2.
5. Service providers relying on point (b) of paragraph 1 shall, with regard to each category or type of service, renew their assessment of whether the burden is disproportionate:
(a) when the service offered is altered; or
(b) when requested to do so by the authorities responsible for checking compliance of services; and
(c) in any event, at least every five years.
6. Where economic operators receive funding from other sources than the economic operator’s own resources, whether public or private, that is provided for the purpose of improving accessibility, they shall not be entitled to rely on point (b) of paragraph 1.
8. Where economic operators rely on paragraph 1 for a specific product or service they shall send information to that effect to the relevant market surveillance authorities, or authorities responsible for checking the compliance of services, of the Member State where the specific product is placed on the market or the specific service is provided.
Annex IV
Annex IV is the conformity assessment procedure for products referenced from the above language. Remember, Annex VI sets out criteria for assessing disproportionate burden.
Here is the language most relevant for disproportionate burden:
- Internal production control
Internal production control is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2, 3 and 4 of this Annex, and ensures and declares on its sole responsibility that the product concerned satisfy the appropriate requirements of this Directive.
2. Technical documentation
The manufacturer shall establish the technical documentation. The technical documentation shall make it possible to assess the conformity of the product to the relevant accessibility requirements referred to in Article 4 and, in case the manufacturer relied on Article 14, to demonstrate that relevant accessibility requirements would introduce a fundamental alteration or impose a disproportionate burden. The technical documentation shall specify only the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the product.
5. Authorised representative
The manufacturer’s obligations set out in point 4 may be fulfilled by its authorised representative, on its behalf and under its responsibility, provided that they are specified in the mandate.
Annex VI
This is a very important section because it sets out the criteria to carry out and document the assessment. The three criteria are below, but note that this doesn’t include the elements to use to assess the net costs of compliance with accessibility requirements. For full details, refer to Annex VI of the Directive.
- Ratio of the net costs of compliance with accessibility requirements to the overall costs (operating and capital expenditures) of manufacturing, distributing or importing the product or providing the service for the economic operators.
- The estimated costs and benefits for the economic operators, including production processes and investments, in relation to the estimated benefit for persons with disabilities, taking into account the amount and frequency of use of the specific product or service.
- Ratio of the net costs of compliance with accessibility requirements to the net turnover of the economic operator.
Summary
The European Accessibility Act does allow operators of products and services an exemption for accessibility requirements which cause an disproportionate burden or fundamental alteration. However, covered entities still must comply with accessibility requirements to the extent in which they do not cause a disproportionate burden or fundamental alteration.
Additionally, covered entities claiming this exception must fully assess and document this claim and documentation may be inspected by authorities.
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Legal Disclaimer: This post represents our interpretation and analysis of the European Accessibility Act (EAA) and related accessibility requirements and obligations but does not constitute legal advice. While we strive for accuracy, Directives and their interpretation may vary by EU member state and change over time. Consult with legal counsel regarding your specific situation.
