The European Accessibility Act a promise for more accessibility for blind and partially sighted EU citizens?

One of the key principles of the EU foundation was to remove barriers and to facilitate cross border exchange and trade within the EU internal market ensuring better accessibility to goods, services and the labour market for EU citizens. EU member states should be equipped with the right tools and knowledge to support the prosperity and well-being of their countries towards a wealthy, connected and accessible Europe for all. Whereas EU institutions and its member states have made great efforts in creating an accessible Europe which allows free circulation of goods and services as well as greater flexibility in travelling and working abroad, access to all these promising and natural opportunities for disabled citizens is still very limited. Buying reasonable priced travel equipment at your favourite online retailer, finding and choosing the most cost effective travel option on the web or via a mobile APP, easy check-in online or at a self-service-terminal, withdrawing some cash quickly, total control and confidence where to hop off the bus, comfortable payment via debit or credit card and an entertaining movie in your cosy holiday apartment, are activities non-disabled persons take for granted.

For those among us who are blind, partially sighted or have any other sensory or physical impairment the enjoyment of these activities often turns into a daunting and frustrating experience. An inaccessible retailer's website makes it difficult to find equipment, check and selection boxes are poorly labelled, so that selecting the best price remains impossible. Buying a ticket via self-service-terminal (ticketing machine) is almost impossible, since the majority of terminals are equipped with flat touchscreens without a spoken menu as a guide to what is shown on the screen. Payments via payment terminals or cash withdrawal again an impregnable challenge, due to a lack of terminals using vocal screen readers or magnifying software. On top of that the unpleasant experience of getting off at the wrong stop, as the bus or train does not provide vocal announcements of the stops, is a problem all blind and partially sighted people have faced. Even watching a movie on TV as a deserved reward for all your trouble often leads to frustration and anger. The TV has no distinguishable buttons and the remote control is flat and plain which does not allow you to choose your favourite channel. Electronic program guides are not equipped with a spoken menu explaining how to navigate on the screen. If you were fortunate enough to accidentally select a movie, you may not have a clue of the story, since it does not provide audio description. The technology and knowledge to remove these barriers already exists. The fact that some ATMs, phones, computers, TVS etc., are already accessible to blind and partially sighted people proves that point. Most of these devices are still not accessible, however. Unless the law requires their inclusive design, most of these products will continue to be out of bounds for blind and partially sighted people.

In December 2015 the European commission launched a legislative proposal for a directive for a wide reaching “European accessibility act (EAA), which addresses accessibility as an overarching requirement in various sectors and establishes mandatory accessibility functional requirements. Former legislation has mainly focused on a specific single sector like the mandate for public authorities to make their websites accessible, or directives to encourage public service providers to procure accessible products to render accessible services etc. Some accessibility requirements are already included in EU rules, but there is no one single, coherent set of rules. The European accessibility act pursues a horizontal approach that comprises a wide range of products and services in different sectors and seeks to bridge gaps in other legislative acts, and which would fill the term accessibility with life and concrete meaning.

The EAA proposal covers computer hardware and operating systems, ATMs, ticketing machines, check-in machines, phones and smartphones, tablets, TVs, online shopping, banking services, e-books and websites of transport companies as well as related infrastructure for bus, train and waterborne transport. A range of products and services which receive EU funding need to comply with the criteria of the European Accessibility act.

EBU welcomes the commission's proposal suggesting a broader and more ambitious scope of the act. Nevertheless we feel that the act has some crucial omissions concerning accessibility which would be vital for the everyday lives and independence of blind and partially sighted Europeans.

In many surveys among persons with disabilities, one of the mostly mentioned inaccessible products in their everyday lives is household appliances. As digital technology rapidly evolves enabling the user to manage household appliances through smartphone or via internet, we believe this would be the right moment to establish mandatory accessibility criteria for user interfaces to bridge the gap between an inaccessible touch screen to a facilitation of handling and communication via smartphone between a user and a household appliance.

Besides ATMs, mandatory accessibility of payment terminals needs to be established. Payment terminals are widely used as a means of cashless payment and are likely to replace the usage of ATMs. Accessibility of these devices is indispensable to ensure that blind and partially sighted persons can pay for goods and services with ease and confidence.

One aim of the EAA is to achieve convergence between national legislation in regards to accessibility requirements and to set up harmonized minimum measures to facilitate, enforce and monitor accessibility across the EU. However we believe it needs to be stressed that Member States are allowed to “do better” and go beyond the requirements in the Accessibility Act, which can be seen as a good basis but are certainly not the best possible accessibility standard to be considered as a benchmark.

The Commission's proposal enables member states to include the built environment of passenger transport services as well as the built environment used by clients of banking services, and customer services centres and shops under the scope of telephone operators, in their national accessibility provisions. Regrettably this matter remains at the discretion of member states. EBU feels that it is of outmost importance to transform this weak provision into a mandatory one, to ensure that the built environment surrounding the goods and services of this directive is constructed in an accessible way. Not making accessibility of the built environment binding will weaken the stance of the entire Act and fails to fulfil the accessibility principles of Article 9 of the UNCRPD.

The EAA establishes a set of obligations for all economic operators in the distribution, supply and rendering chain of goods and services ranging from manufacturers to importers and distributors/retailers. All economic operators are obliged to ensure that the products and services are in conformity with the accessibility requirements of this directive. Conformity is presumed if the products and services meet the accessibility requirements of the directive in combination with adopted EU wide standards or common technical specifications describing in detail how the functional requirements can be practically implemented. Manufacturers have to produce a technical document describing in detail how and to what extent the product fulfils accessibility requirements. This internal assessment procedure has to be completed by a declaration of conformity in which the manufacturer declares that the product is in conformity with accessibility requirements. The manufacturer needs to ensure that updated versions of the product remain conform. Too often we have seen cases where the first versions of products or services were completely accessible, but after updates the new features were not accessible. Retailers and distributors who sell or introduce these products likewise need to ensure that the product assessment has been properly carried out and that all required documentation is provided. All this may sound rather formal and meaningless, but in connection with the responsibilities of the national market surveillance authorities which have the powers to regularly check and monitor the accessibility of products these measures empower them to prohibit the market distribution of inaccessible products, to entail economic operators to take corrective actions to make a product accessible and to exchange with market surveillance authorities from other EU countries, to ensure a proper application of the directive within the EU.

Since the monitoring of services with regards to their accessibility is a rather new area, member states are legally obliged to develop assessment procedures to check conformity of services with the directive's requirements and to designate authorities tasked to monitor the practical implementation of the directive, to follow up consumer and representative organizations complaints and to inform member states of the non-compliance of services. The public has to be informed about the existence and responsibilities of these authorities.

Member states are obliged to lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. Penalties for service providers or manufacturers which deliberately fail to make their products and services accessible, shall be effective, proportionate and dissuasive.

Unfortunately the act provides some exemptions which enable manufacturers and service providers to escape from their duty to make their products and services accessible. Economic operators can argue for a disproportionate burden if they can legitimately substantiate that making their product or service accessible would alter the basic nature and purpose to such an extent that its natural appearance and function cannot be maintained. Additionally, appropriate arguments to claim a disproportionate burden can be the size, nature and resources of the concerned economic operator, the estimated costs and benefits for the competent authorities concerned in relation to the estimated benefit for persons with disabilities, taking into account the frequency and duration of use of the specific product or service. The assessment of whether compliance with the accessibility requirements imposes a disproportionate burden shall be performed by the economic operator themselves who must inform the concerned authorities in the EU member state where the product or service is placed or made available.

EBU welcomes the monitoring and enforcement mechanisms of this directive but believes that they should be enhanced to increase transparency and equal treatment of all economic operators, and active participation of disabled persons and their representative organizations. Small and medium sized enterprises should be also obliged to provide their conformity assessments to the authorities and not only upon request. Market authorities need to be obliged to verify the assessment for the exemption of an undue burden. To develop coherent principles for the assessment of exemptions member states, national authorities and disability organizations need to draft and consolidate these principles in a structured dialogue. The directive should encourage member states to develop guidelines and procedures for small enterprises to facilitate their implementation of this directive, developed in consultation with disabled persons and their representative organizations. If the commission's proposal continues to contain vague and unclear assessment criteria for an undue burden we are afraid that this exemption might jeopardize the implementation of the proposed Directive as it is not entirely clear what parameters would be used to measure the “disproportionate burden” and how this will be enforced in practice. Involving disabled persons' organisations directly would guarantee a coherent approach to the exemptions, allowing verification of the use of the exemption by technical experts on accessibility issues.

Finally, it is important that the market surveillance authorities have adequate resources, staff, and knowledge to efficiently verify the assessment of the manufacturer. Stakeholders should also be involved to ensure that the principles, guidelines and benchmarks used for the assessment are coherent and adequate.

The directive needs to include guidelines and legal mechanisms to ensure a balanced representation between industrial key players and other stakeholders like disabled experts from representative organizations in standardisation processes.

EBU believes it is essential that complementary to the C-Marking (conformity marking) a simple, visible and precise indication on the product packaging needs to classify the product as accessible. The C-Marking on its own is not yet linked to the criterion of accessibility and consumers might not be aware of embedded accessibility features in the product.

The core of the EAA, annex 1 presents a detailed set of functional accessibility requirements which enable standardisation bodies and economic operators to develop standards and technical specifications following the adoption of this directive. Some common functional accessibility requirements which are applicable for all sectors are:

  • Provision of different sensory accessibility approaches to enable users with different needs to navigate and interact with the product/service
  • Provision of options to adapt magnification, colour  and contrast of information displayed on the screen,
  • Provide modes of operation with possibilities to choose between text or alternatives which display information via pictograms and other alternatives formats,
  • The possibility to connect the product/service interface with personal assistive devices to maximize accessibility

EBU is grateful for the ambitious goal of the commission to provide concrete functional requirements which are in line with the objectives of the directive. Nevertheless we believe that these requirements could be presented in a clearer manner and need to be complimented by further functional requirements emphasising the functionalities of a product or service the user should be able to understand, perceive and to operate.

One example may illustrate these additional requirements. The services and mobile applications of banks and their related consumer terminals should display their content in a simple, clear, precise and comprehensible language. Persons with and without disabilities have great difficulties in understanding and following information given by their bank service providers as these instructions are often provided in complicated language. Therefore this additional requirement is crucial to ensure an accessible interaction with these services.

Currently the Commission's EAA proposal is being negotiated in the European parliament and the council. For more than 18 months both institutions have been trying to come up with proposals which may change the proposal to the better or on the contrary downgrade its actual ambitions to vague and weak legislation. The lead committee IMCO (Internal market and consumer protection) of the European parliament has tabled a very disappointing final report, proposing amendments which favours business demands over the rights of disabled  and older persons. The report waters down the European Commission's proposal to such an extent that there is a risk that the Accessibility Act may be meaningless for millions of people in Europe.

A comprehensive update on the negotiations and proposed EBU amendments to safeguard and extend the commission's proposal for a powerful legislative tool will be available online on EBU's website in due course. What follows is a brief outline of the key counter-productive amendments the IMCO has tabled, despite strong advocacy efforts from EDF and EBU and assurances given by IMCO members to fight for a strong and robust accessibility act:

  • Exclusion of Micro enterprises: If adopted this exclusion would result in a great loss of accessible EBooks and the enjoyment of online purchases for blind and partially sighted persons, since the majority of online retailers and EBook publishers are small enterprises.
  • Limits the link to public procurement and European Union (EU) Structural Funds: It will be possible that EU funding and taxpayer's money are used to fund a school building or library which are not accessible, as there are still no binding accessibility requirements. Entering a school or using the features of this library will, thus, continue to be impossible for many children or readers with disabilities in Europe.
  • Exempts both Small and Medium Enterprises (SMEs) and micro enterprises from the notification obligation to the authorities: A “small” company of up to 250 employees can continue making inaccessible products without having to notify the authorities, if they consider that making their products and services accessible would be too much of a burden for them. In practice, it will therefore be difficult to check if they are applying the accessibility requirements correctly.

Looking at these rather gloomy prospects we have to fight all the more for an ambitious act, which is urgently needed to transform Europe into an accessible Europe for all. National governments, parliamentary members and key industrial players need to understand that investing in accessibility will be a future-proof investment, benefiting society at large, fostering growth and technical innovation and paving the way to a more inclusive and equal society for disabled persons.

Jessica Schroeder, Head of International Relations, DBSV (German Federation of the Blind and Partially Sighted)