INTRODUCTION

One of the key priorities of the European Commission is to ensure that people living with disabilities do not face barriers preventing them from participating fully in society. One of the main areas for improvement identified by the European Commission is in relation to "accessibility", specifically in relation to products and services. In order to address this area of concern, the European Commission has produced a proposal for the European Accessibility Act ("EAA"), actually a Directive with its principal aim to "...improve the functioning of the internal market for accessible products and services by removing barriers created by divergent legislation".

The proposal for the EAA was adopted in December 2015, and whilst not yet in force, it is prudent for businesses to be aware of the draft legislation setting out the accessibility requirements, to ensure they are one step ahead and that the products and services they provide do not fall foul of the future provisions.

CURRENT REQUIREMENTS REGARDING ACCESSIBILITY

National accessibility requirements differ between Member States, in terms of both the level of detail and the technical requirements. As things currently stand, there is no EU-wide coordination of national legislation regarding the accessibility of products and services, and in particular, no common definition of how products and services should be made accessible. The result is that there is a fragmentation of the single market, creating difficulties for business wanting to operate across it.

WHAT WILL THE EAA DO?

In order to overcome this issue, the European Commission has proposed the EAA as a harmonising Directive. Whilst this does not aim to cover all products and services, a priority list has been created, identifying those which are most in need of harmonised accessibility requirements.

The following products and services will be covered by the Directive:

  • General purpose computer hardware and operating systems;
  • Self-service terminals including ATMs, ticketing machines, and check-in machines;
  • Consumer terminal equipment with advanced computing capability related to telephony services and audio-visual media services;
  • Passenger transport services, including air, rail, bus and maritime;
  • e-Commerce;
  • e-Books; and
  • Banking services.

Businesses providing the above products and services will need to ensure compliance with the accessibility requirements, which are set out in the Annex to the EAA.

Whilst there are specific requirements for each of the products and services listed above, as a general overview, the accessibility requirements cover components such as the labelling on and the packaging of the product, the instructions for the products and the user interface.

In order to make the products and services "accessible", the EAA provides that they must be designed, where applicable, to ensure the following:

  • Provide for communication via more than one sensory channel;
  • Provide for alternatives to speech for communication;
  • Provide for flexible magnification and contrast;
  • Provide for an alternative colour to convey information;
  • Provide for flexible ways to separate and control foreground from background, including reducing background noise and improving clarity;
  • Provide for user control of volume;
  • Provide for sequential control and alternatives to fine motor control;
  • Provide for modes of operation with limited reach and strength; and
  • Provide avoidance of triggering photosensitive seizures.

The need for businesses to ensure the accessibility requirements are met, however, will only apply to the extent they do not introduce a fundamental change in an aspect or feature of the product or service, or impose a disproportionate burden. It will be left to the business to determine whether, as a result of complying with the accessibility requirements, there will be a fundamental change or disproportionate burden.

In order to prevent businesses from wrongly determining that there would be a fundamental change or disproportionate burden in achieving compliance, the EAA provides that market surveillance authorities have the power to review the assessment of the businesses, and also have the authority to force the withdrawal of the inaccessible products and services.

As can be seen from the above, the EAA does not provide any specific technical details which need to be met, to ensure the products and services are accessible. It has however garnered criticism, with commentators stating that it is still too prescriptive, and fails to create a future-proof legal framework. Given the speed in which developments in technology occur, it is likely that any attempt to prescribe how products and services are to be made "accessible" will only outdate the advancements made by the businesses providing those products and services. A better approach may be to focus on outcome based requirements, without the detailed prescriptions specified above, providing businesses with the flexibility to determine how it will ensure accessibility.

NEXT STEPS

It is currently unknown what the final draft of the EAA will look like, or when this will come into force. Concerns have been raised over the scope of the EAA, therefore there is the possibility that the accessibility requirements as they currently stand, and the products and services which they apply to, will be watered down.

In addition, given the lack of clarity over current Brexit negotiations, it is unclear how the EAA will apply to UK businesses. On implementation however, those businesses who wish to sell their products and services within the Single Market will need to ensure that they comply with any requirements set out, or risk having them withdrawn.

Despite this however, it is clear that the European Union are taking the issue of accessibility seriously, therefore businesses should have regard to this and the products and services they provide, to ensure that they can be prepared for the regulatory requirements which are afoot.