The European Accessibility Act

Introduction

There are multiple identifiable needs and issues which concern persons with disabilities on a global scale. Throughout Europe it is estimated that 80 million people are living with disabilities.

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Therefore, the necessity of international co-operation to create a universal framework to uphold and enforce rights obligations towards persons with disabilities cannot be understated. The United Nations Convention on the Rights of Persons with Disabilities attempts to realise these rights and places a particular emphasis on tackling the issues of nondiscrimination, under Article 5, and encouraging improved accessibility, under Article 9. These will allow affected individuals to enjoy their human rights at the fullest capacity. The European Union and many of its member states are party to this convention. As a result, they are committed to implementing a legislative framework which will create measures which will limit and eradicate barriers faced by people with disabilities across the European Union.

This chapter will examine two recent directives of the European Union which attempt to tackle issues related to persons with disabilities and their subsequent implementation and impact on people living with disabilities in Ireland.

I. The European Accessibility Act

Overview of the European Accessibility Act Following three years of legislative and interinstitutional negotiations, the European Accessibility Act was adopted by the European Union on the 9th of April 2019. The Act attempts to regulate and set accessibility requirements to assist persons with disabilities in the private sector with regards to products and services.

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The framework of the EAA is intended to assist the realisation of the CRPD, which as noted in the Act is binding and therefore it is necessary to ensure its development by adopting ‘concrete, enforceable and timebound benchmarks for monitoring the gradual implementation of accessibility.’

145 The EAA is structured to harmonise with prior successful directives regarding

143 European Commission, 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021. 144 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70. 145 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

accessibility and rights for persons with disabilities such as Directive 2014/33/EU of the European Parliament and of the Council which concernslifts and Regulation (EC) No 661/2009 of the European Parliament and of the Council which addresses transport. It in no way amends current accessibility legislation provided by the European Union.

The European Accessibility Act largely focuses on products and services related to operating systems, computers, e-commerce, smartphones, passenger transport and audio-visual media services.

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The need for this legislation was highlighted in the May 2015 communication from the Commission on a single digital market strategy for Europe which emphasised the exponential growth of digital services and the need to regulate them in line with fair competition laws and accessibility rights.

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The methods of imposition in the EAA do not attempt to prescribe high levels of technical requirements onto the business and service providers encompassed in the directive but instead delegate certain obligations for compliance to ensure accessibility to the digital market for all people throughout Europe.

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Member States of the European Union are required to transpose the EAA into their domestic legislation and administrative procedures by June 28th, 2022, with full force of the Act to be realised by June 28th, 2025. The overall requirements outlined in the Act attempts to incorporate a multitude of both physical and cognitive disabilities. Minimal requirements and recommendations for improved accessibility are outlined in the EAA. These include,

● Ensuring that information and introduction material is available in more than one sensory channel and in comprehensible language. ● Ensuring that user interfaces can convey information in multiple ways, particularly in regard to the use of audio or images. ● Ensuring that e-commerce services are able to provide operable and robust methods for identification, payment and security systems which encourage accessibility and use for persons with disabilities.

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146 ‘European Accessibility Act’ (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021. 147 Commission, ‘Digital Single Market Strategy for Europe’ (Communication) COM (2015) 1092. 148 ‘Summary of Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services’, (Eur-LEX, 11 October 2019) <https://eur-lex.europa.eu/legalcontent/EN/LSU/?uri=CELEX:32019L0882> accessed 10 January 2021. 149 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’ (Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021.

In conjunction with the attempts to create homogenous regulations for accessibility in the EU Digital Market, the EAA also established safeguards which ensure that the Act does not over impose itself onto the market suppliers.

150 This is covered in Section 64, which states;

‘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.’

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The Act also provides a number of exemptions for the directive. These include archival websites, third party content out of the control of the providers, office files and pre-recorded formats published before 2025 and reproduced heritage items. Additionally, the obligations set out in the Act are intended to apply to both private and public economic operators. However, websites for schools and nurseries also enjoy exemptions from the EAA.

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Intended Beneficiaries of the European Accessibility Act There are two explicitly intended beneficiaries outlined in the European Accessibility Act; persons with disabilities and business, particularly small and medium-sized enterprises (SME’s).

Increased accessibility is beneficial to all EU citizens, however it is of particular benefit to persons with disabilities such as cognitive disabilities, impaired vision, deafness, and motor difficulties. The European Accessibility Act is intended to satisfy the obligation of accessibility provided for by Article 9 of the UN CRPD. Section 47 of the directive states;

150 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’ (Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021. 151 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70. 152 Laura Brady and Tzviya Siegman, ‘What does the European Accessibility Act Mean for Global Publishing?’ (Inclusive Publishing, 13 April 2021) <https://inclusivepublishing.org/blog/what-does-the-europeanaccessibility-act-mean-for-global-publishing/> accessed 20 November 2021.

‘The four principles of accessibility of websites and mobile applications … are: perceivability, meaning that information and user interface components must be presentable to users in ways they can perceive; operability, meaning that user interface components and navigation must be operable; understandability, meaning that information and the operation of the user interface must be understandable; and robustness, meaning that content must be robust enough to be interpreted reliably by a wide variety of user agents, including assistive technologies…’153

By establishing accessibility requirements for all products and services which fall within the scope of the EAA, it is hoped that the day-to-day lives of EU citizens with disabilities will be improved as computers, operating systems, ATM’s, passenger transport and public body websites become easier to navigate.

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The European Accessibility Act aims to assist the free movement of goods and services across the EU by removing the barriers of accessibility requirements which vary from EU State to State. The directive specifically notes the principle of ‘think small first’ and recognizes the importance of SMEs across Europe. Therefore, the requirements and safeguard are created to be beneficial to their functioning, while also supporting the public benefit.

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Moreover, the EAA does not place requirements on micro-enterprises, due to the serious burden it could potentially place on their resources.

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The removal of barriers through the implementation of accessibility requirements also offers significant economic incentives for businesses across the EU as they experience reduced barriers and increased access to markets in other EU countries. It is estimated in 2020 that divergent accessibility requirements see the market costs for businesses and Member States at

153 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70. 154 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021. 155 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70. 156 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.

around 20 billion euro.

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The introduction of the EAA is estimated to reduce this by 45-50%, with additional production costs assumed to be significantly lower.

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Overall, the estimated benefit for SMEs and other EU Businesses is that by introducing accessibility requirements across all member states, there is a freer movement of products and services while improving competition and effectiveness across the EU and ceasing fragmentation of the market.

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Potential Shortcomings

The EAA has been largely hailed as a large step forward in encouraging and improving accessibility on a large scale across the European Union. However, charities, non-profits, and watchdog groups for the rights of people with disabilities have noted several disparities or flaws in the legislation. The Human European Consultancy and Age Platform have noted in particular the EAA’s lack of regulation and imposition of requirements in the areas of healthcare, education, transport, and the accessibility of buildings.

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Implementation in Ireland As aforementioned, the European Accessibility Act is expected to be transposed into the national legislative framework of all member states, including Ireland, by the 28

th of June 2022,

with full enforcement of the EAA in June 2025.

In accordance with this adjustment period, requirements and procedures have been established within the EAA to ensure full compliance. On a national level, Member States are expected to withdraw any products which fail to comply with the accessibility regulations in place.161 Articles 20 and 22 of the Act place punitive sanctions onto products and services which fail to comply.

157 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021). 158 'European Accessibility Act' (Ec.europa.eu, 2021) <https://ec.europa.eu/social/main.jsp?catId=1202> accessed 17 November 2021. 159 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70. 160 Janina Arsenjeva, ‘Annotated Review of European Law and Policy with Reference to Disability’ (January 2019) Academic Network of European Disability <https://www.disability-europe.net/theme/eu-law-and-policy> accessed 21 November 2021. 161 Council Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services, [2019] OJ L151/70.