The purpose of this Directive is to contribute to the proper functioning of the internal market by approximating laws, regulations and administrative provisions of the Member States as regards accessibility requirements for certain products and services by, in particular, eliminating and preventing barriers to the free movement of certain accessible products and services arising from divergent accessibility requirements in the Member States. This would increase the availability of accessible products and services in the internal market and improve the accessibility of relevant information.
(2)
The demand for accessible products and services is high and the number of persons with disabilities is projected to increase significantly. An environment where products and services are more accessible allows for a more inclusive society and facilitates independent living for persons with disabilities. In this context, it should be borne in mind that the prevalence of disability in the Union is higher among women than among men.
(3)
This Directive defines persons with disabilities in line with the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 (UN CRPD), to which the Union has been a Party since 21 January 2011 and which all Member States have ratified. The UN CRPD states that persons with disabilities ‘include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. This Directive promotes full and effective equal participation by improving access to mainstream products and services that, through their initial design or subsequent adaptation, address the particular needs of persons with disabilities.
(4)
Other persons who experience functional limitations, such as elderly persons, pregnant women or persons travelling with luggage, would also benefit from this Directive. The concept of ‘persons with functional limitations’, as referred to in this Directive, includes persons who have any physical, mental, intellectual or sensory impairments, age related impairments, 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 those products and services to be adapted to their particular needs.
(5)
The disparities between the laws, regulations and administrative provisions of Member States concerning the accessibility of products and services for persons with disabilities, create barriers to the free movement of products and services and distort effective competition in the internal market. For some products and services, those disparities are likely to increase in the Union after the entry into force of the UN CRPD. Economic operators, in particular small and medium-sized enterprises (SMEs), are particularly affected by those barriers.
(6)
Due to the differences in national accessibility requirements, individual professionals, SMEs and microenterprises in particular are discouraged from entering into business ventures outside their own domestic markets. The national, or even regional or local, accessibility requirements that Member States have put in place currently differ as regards both coverage and level of detail. Those differences negatively affect competitiveness and growth, due to the additional costs incurred in the development and marketing of accessible products and services for each national market.
(7)
Consumers of accessible products and services and of assistive technologies, are faced with high prices due to limited competition among suppliers. Fragmentation among national regulations reduces potential benefits derived from sharing with national and international peers experiences concerning responding to societal and technological developments.
(8)
The approximation of national measures at Union level is therefore necessary for the proper functioning of the internal market in order to put an end to fragmentation in the market of accessible products and services, to create economies of scale, to facilitate cross-border trade and mobility, as well as to help economic operators to concentrate resources on innovation instead of using those resources to cover expenses arising from fragmented legislation across the Union.
(9)
The benefits of harmonising accessibility requirements for the internal market have been demonstrated by the application of Directive 2014/33/EU of the European Parliament and of the Council (3) regarding lifts and Regulation (EC) No 661/2009 of the European Parliament and of the Council (4) in the area of transport.
(10)
In Declaration No 22, regarding persons with a disability, annexed to the Treaty of Amsterdam, the Conference of the Representatives of the Governments of the Member States agreed that, in drawing up measures under Article 114 of the Treaty on the Functioning of the European Union (TFEU), the institutions of the Union are to take account of the needs of persons with disabilities.
(11)
The overall aim of the communication of the Commission of 6 May 2015‘A Digital Single Market Strategy for Europe’, is to deliver sustainable economic and social benefits from a connected digital single market, thereby facilitating trade and promoting employment within the Union. Union consumers still do not enjoy the full benefits of prices and choice that the single market can offer, because cross-border online transactions are still very limited. Fragmentation also limits demand for cross-border e-commerce transactions. There is also a need for concerted action to ensure that electronic content, electronic communications services and access to audiovisual media services are fully available to persons with disabilities. It is therefore necessary to harmonise accessibility requirements across the digital single market and to ensure that all Union citizens, regardless of their abilities, can enjoy its benefits.
(12)
Since the Union became a Party to the UN CRPD, its provisions have become an integral part of the Union legal order and are binding upon the institutions of the Union and on its Member States.
(13)
The UN CRPD requires its Parties to take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. The United Nations Committee on the Rights of Persons with Disabilities has identified the need to create a legislative framework with concrete, enforceable and time-bound benchmarks for monitoring the gradual implementation of accessibility.
(14)
The UN CRPD calls on its Parties to undertake or promote research and development of, and to promote the availability and use of, new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities. The UN CRPD also calls for priority to be given to affordable technologies.
(15)
The entry into force of the UN CRPD in the Member States’ legal orders entails the need to adopt additional national provisions on accessibility of products and services. Without Union action, those provisions would further increase disparities between the laws, regulations and administrative provisions of the Member States.
(16)
It is therefore necessary to facilitate the implementation in the Union of the UN CRPD by providing common Union rules. This Directive also supports Member States in their efforts to fulfil their national commitments, as well as their obligations under the UN CRPD regarding accessibility in a harmonised manner.
(17)
The communication of the Commission of 15 November 2010‘European Disability Strategy 2010-2020 – A Renewed Commitment to a Barrier-Free Europe’ – in line with the UN CRPD, identifies accessibility as one of the eight areas of action, indicates that it is a basic precondition for participation in society, and aims to ensure the accessibility of products and services.
(18)
The determination of the products and services falling within the scope of this Directive is based on a screening exercise which was carried out during the preparation of the Impact Assessment that identified relevant products and services for persons with disabilities, and for which Member States have adopted or are likely to adopt diverging national accessibility requirements disruptive to the functioning of the internal market.
(19)
In order to ensure the accessibility of the services falling within the scope of this Directive, products used in the provision of those services with which the consumer interacts should also be required to comply with the applicable accessibility requirements of this Directive.
(20)
Even if a service, or part of a service, is subcontracted to a third party, the accessibility of that service should not be compromised and the service providers should comply with the obligations of this Directive. Service providers should also ensure proper and continuous training of their personnel in order to ensure that they are knowledgeable about how to use accessible products and services. That training should cover issues such as information provision, advice and advertising.
(21)
Accessibility requirements should be introduced in the manner that is least burdensome for the economic operators and the Member States.
(22)
It is necessary to specify accessibility requirements for the placing on the market of products and services which fall within the scope of this Directive, in order to ensure their free movement in the internal market.
(23)
This Directive should make functional accessibility requirements compulsory and they should be formulated in terms of general objectives. Those requirements should be precise enough to create legally binding obligations and sufficiently detailed so as to make it possible to assess conformity in order to ensure the good functioning of the internal market for the products and services covered by this Directive, as well as leave a certain degree of flexibility in order to allow for innovation.
(24)
This Directive contains a number of functional performance criteria related to modes of operations of products and services. Those criteria are not meant as a general alternative to the accessibility requirements of this Directive but should be used in very specific circumstances only. Those criteria should apply to specific functions or features of the products or services, to make them accessible, when the accessibility requirements of this Directive do not address one or more of those specific functions or features. In addition, in the event that an accessibility requirement contains specific technical requirements, and an alternative technical solution for those technical requirements is provided in the product or service, this alternative technical solution should still comply with the related accessibility requirements, and should result in equivalent or increased accessibility, by applying the relevant functional performance criteria.
(25)
This Directive should cover consumer general purpose computer hardware systems. For those systems to perform in an accessible manner, their operating systems should also be accessible. Such computer hardware systems are characterised by their multipurpose nature and their ability to perform, with the appropriate software, the most common computing tasks requested by consumers and are intended to be operated by consumers. Personal computers, including desktops, notebooks, smartphones and tablets are examples of such computer hardware systems. Specialised computers embedded in consumer electronics products do not constitute consumer general purpose computer hardware systems. This Directive should not cover, on an individual basis, single components with specific functions, such as a mainboard or a memory chip, that are used or that might be used in such a system.
(26)
This Directive should also cover payment terminals, including both their hardware and software, and certain interactive self-service terminals, including both their hardware and software, dedicated to be used for the provision of services covered by this Directive: for example automated teller machines; ticketing machines issuing physical tickets granting access to services such as travel ticket dispensers; bank office queuing ticket machines; check-in machines; and interactive self-service terminals providing information, including interactive information screens.
(27)
However, certain interactive self-service terminals providing information installed as integrated parts of vehicles, aircrafts, ships or rolling stock should be excluded from the scope of this Directive, since these form part of those vehicles, aircrafts, ships or rolling stock which are not covered by this Directive.
(28)
This Directive should also cover electronic communications services including emergency communications as defined in Directive (EU) 2018/1972 of the European Parliament and of the Council (5). At present, the measures taken by Member States to provide access to persons with disabilities are divergent and are not harmonised throughout the internal market. Ensuring that the same accessibility requirements apply throughout the Union will lead to economies of scale for economic operators active in more than one Member State and facilitate the effective access for persons with disabilities, both in their own Member State and when travelling between Member States. For electronic communications services including emergency communications to be accessible, providers should, in addition to voice, provide real time text, and total conversation services where video is provided by them, ensuring the synchronisation of all those communication means. Member States should, in addition to the requirements of this Directive, in accordance with Directive (EU) 2018/1972, be able to determine a relay service provider that could be used by persons with disabilities.
(29)
This Directive harmonises accessibility requirements for electronic communications services and related products and complements Directive (EU) 2018/1972 which sets requirements on equivalent access and choice for end-users with disabilities. Directive (EU) 2018/1972 also sets requirements under universal service obligations on the affordability of internet access and voice communications and on the affordability and availability of related terminal equipment, specific equipment and services for consumers with disabilities.
(30)
This Directive should also cover consumer terminal equipment with interactive computing capability foreseeably to be primarily used to access electronic communications services. For the purposes of this Directive that equipment should be deemed to include equipment used as part of the setup in accessing electronic communications services such as a router or a modem.
(31)
For the purposes of this Directive, access to audiovisual media services should mean that the access to audiovisual content is accessible, as well as mechanisms that allow users with disabilities to use their assistive technologies. Services providing access to audiovisual media services could include websites, online applications, set-top box-based applications, downloadable applications, mobile device-based services including mobile applications and related media players as well as connected television services. Accessibility of audiovisual media services is regulated in Directive 2010/13/EU of the European Parliament and of the Council (6), with the exception of the accessibility of electronic programme guides (EPGs) which are included in the definition of services providing access to audiovisual media services to which this Directive applies.
(32)
In the context of air, bus, rail and waterborne passenger transport services this Directive should cover, inter alia, the delivery of transport service information including real-time travel information through websites, mobile device-based services, interactive information screens and interactive self-service terminals, required by passengers with disabilities in order to travel. This could include information about the service provider’s passenger transport products and services, pre-journey information, information during the journey and information provided when a service is cancelled or its departure is delayed. Other elements of information could also include information on prices and promotions.
(33)
This Directive should also cover websites, mobile device-based services including mobile applications developed or made available by operators of passenger transport services within the scope of this Directive or on their behalf, electronic ticketing services, electronic tickets and interactive self-service terminals.
(34)
The determination of the scope of this Directive with regard to air, bus, rail and waterborne passenger transport services should be based on the existing sectorial legislation relating to passenger rights. Where this Directive does not apply to certain types of transport services, Member States should encourage service providers to apply the relevant accessibility requirements of this Directive.
(35)
Directive (EU) 2016/2102 of the European Parliament and of the Council (7) already lays down obligations for public sector bodies providing transport services, including urban and suburban transport services and regional transport services, to make their websites accessible. This Directive contains exemptions for microenterprises providing services, including urban and suburban transport services and regional transport services. In addition, this Directive includes obligations to ensure that e-commerce websites are accessible. Since this Directive contains obligations for the large majority of private transport service providers to make their websites accessible, when selling tickets online, it is not necessary to introduce in this Directive further requirements for the websites of urban and suburban transport service providers and regional transport service providers.
(36)
Certain elements of the accessibility requirements, in particular in relation to the provision of information as set out in this Directive, are already covered by existing Union law in the field of passenger transport. This includes elements of Regulation (EC) No 261/2004 of the European Parliament and of the Council (8), Regulation (EC) No 1107/2006 of the European Parliament and of the Council (9), Regulation (EC) No 1371/2007 of the European Parliament and of the Council (10), Regulation (EU) No 1177/2010 of the European Parliament and of the Council (11) and Regulation (EU) No 181/2011 of the European Parliament and of the Council (12). This includes also relevant acts adopted on the basis of Directive 2008/57/EC of the European Parliament and of the Council (13). To ensure regulatory consistency, the accessibility requirements set out in those Regulations and those acts should continue to apply as before. However, additional requirements of this Directive would supplement the existing requirements, improving the functioning of the internal market in the area of transport and benefiting persons with disabilities.
(37)
Certain elements of transport services should not be covered by this Directive when provided outside the territory of the Member States even where the service has been directed towards the Union market. With regard to those elements, a passenger transport service operator should only be obliged to ensure that the requirements of this Directive are met with regard to the part of the service offered within the territory of the Union. However, in the case of air transport, Union air carriers should ensure that the applicable requirements of this Directive are also satisfied on flights departing from an airport situated in a third country and flying to an airport situated within the territory of a Member State. Furthermore, all air carriers, including those which are not licenced in the Union, should ensure that the applicable requirements of this Directive are satisfied in cases where the flights depart from a Union territory to a third country territory.
(38)
Urban authorities should be encouraged to integrate barrier-free accessibility to urban transport services in their Sustainable Urban Mobility Plans (SUMPs), as well as to regularly publish lists of best practices regarding barrier-free accessibility to urban public transport and mobility.
(39)
Union law on banking and financial services aims to protect and provide information to consumers of those services across the Union but does not include accessibility requirements. With a view to enabling persons with disabilities to use those services throughout the Union, including where provided through websites and mobile device-based services including mobile applications, to make well-informed decisions, and to feel confident that they are adequately protected on an equal basis with other consumers, as well as ensure a level playing field for service providers, this Directive should establish common accessibility requirements for certain banking and financial services provided to consumers.
(40)
The appropriate accessibility requirements should also apply to identification methods, electronic signature and payment services, since they are necessary for concluding consumer banking transactions.
(41)
E-book files are based on a electronic computer coding that enables the circulation and consultation of a mostly textual and graphical intellectual work. The degree of precision of this coding determines the accessibility of e-book files, in particular regarding the qualification of the different constitutive elements of the work and the standardised description of its structure. The interoperability in terms of accessibility should optimise the compatibility of those files with the user agents and with current and future assistive technologies. Specific features of special volumes like comics, children’s books and art books should be considered in the light of all applicable accessibility requirements. Divergent accessibility requirements in Member States would make it difficult for publishers and other economic operators to benefit from the advantages of the internal market, could create interoperability problems with e-readers and would limit the access for consumers with disabilities. In the context of e-books, the concept of a service provider could include publishers and other economic operators involved in their distribution.
It is recognised that persons with disabilities continue to face barriers to accessing content which is protected by copyright and related rights, and that certain measures have already been taken to address this situation for example through the adoption of Directive (EU) 2017/1564 of the European Parliament and of the Council (14) and Regulation (EU) 2017/1563 of the European Parliament and of the Council (15), and that further Union measures could be taken in this respect in the future.
(42)
This Directive defines e-commerce services as a service provided at a distance, through websites and mobile device-based services, by electronic means and at the individual request of a consumer, with a view to concluding a consumer contract. For the purposes of that definition ‘at a distance’ means that the service is provided without the parties being simultaneously present; ‘by electronic means’ means that the service is initially sent and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and transmitted, conveyed and received in its entirety by wire, by radio, by optical means or by other electromagnetic means; ‘at the individual request of a consumer’ means that the service is provided on individual request. Given the increased relevance of e-commerce services and their high technological nature, it is important to have harmonised requirements for their accessibility.
(43)
The e-commerce services accessibility obligations of this Directive should apply to the online sale of any product or service and should therefore also apply to the sale of a product or service covered in its own right under this Directive.
(44)
The measures related to the accessibility of the answering of emergency communications should be adopted without prejudice to, and should have no impact on, the organisation of emergency services, which remains in the exclusive competence of Member States.
(45)
In accordance with Directive (EU) 2018/1972, Member States are to ensure that access for end-users with disabilities to emergency services is available through emergency communications and is equivalent to that enjoyed by other end-users, in accordance with Union law harmonising accessibility requirements for products and services. The Commission and the national regulatory or other competent authorities are to take appropriate measures to ensure that, whilst travelling in another Member State, end-users with disabilities can access emergency services on an equivalent basis with other end-users, where feasible without any pre-registration. Those measures seek to ensure interoperability across Member States and are to be based, to the greatest extent possible, on European standards or specifications laid down in accordance with Article 39 of Directive (EU) 2018/1972. Such measures do not prevent Member States from adopting additional requirements in order to pursue the objectives set out in that Directive. As an alternative to fulfilling the accessibility requirements with regard to the answering of emergency communications for users with disabilities set out in this Directive, Member States should be able to determine a third party relay service provider to be used by persons with disabilities to communicate with the public safety answering point, until those public safety answering points are capable of using electronic communications services through internet protocols for ensuring accessibility of answering the emergency communications. In any case, obligations of this Directive should not be understood to restrict or lower any obligations for the benefit of end-users with disabilities, including equivalent access to electronic communications services and emergency services as well as accessibility obligations as set out in Directive (EU) 2018/1972.
(46)
Directive (EU) 2016/2102 defines accessibility requirements for websites and mobile applications of public sector bodies and other related aspects, in particular requirements relating to the compliance of the relevant websites and mobile applications. However, that Directive contains a specific list of exceptions. Similar exceptions are relevant for this Directive. Some activities that take place via websites and mobile applications of public sector bodies, such as passenger transport services or e-commerce services, which fall within the scope of this Directive, should in addition comply with the applicable accessibility requirements of this Directive in order to ensure that the online sale of products and services is accessible for persons with disabilities irrespective whether the seller is a public or private economic operator. The accessibility requirements of this Directive should be aligned to the requirements of Directive (EU) 2016/2102, despite differences, for example, in monitoring, reporting and enforcement.
(47)
The four principles of accessibility of websites and mobile applications, as used in Directive (EU) 2016/2102, 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. Those principles are also relevant for this Directive.
(48)
Member States should take all appropriate measures to ensure that, where the products and services covered by this Directive comply with the applicable accessibility requirements, their free movement within the Union is not impeded for reasons related to accessibility requirements.
(49)
In some situations, common accessibility requirements of the built environment would facilitate the free movement of the related services and of persons with disabilities. Therefore, this Directive should enable Member States to include the built environment used in the provision of the services under the scope of this Directive, ensuring compliance with the accessibility requirements set out in Annex III.
(50)
Accessibility should be achieved by the systematic removal and prevention of barriers, preferably through a universal design or ‘design for all’ approach, which contributes to ensuring access for persons with disabilities on an equal basis with others. According to the UN CRPD, that approach ‘means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design’. In line with the UN CRPD, ’‘universal design’ shall not exclude assistive devices for particular groups of persons with disabilities where this is needed’. Furthermore, accessibility should not exclude the provision of reasonable accommodation when required by Union law or national law. Accessibility and universal design should be interpreted in line with General Comment No 2(2014) – Article 9: Accessibility as written by the Committee on the Rights of Persons with Disabilities.
(51)
Products and services falling within the scope of this Directive do not automatically fall within the scope of Council Directive 93/42/EEC (16). However, some assistive technologies which are medical devices, might fall within the scope of that Directive.
(52)
Most jobs in the Union are provided by SMEs and microenterprises. They have a crucial importance for future growth, but very often face hurdles and obstacles in developing their products or services, in particular in the cross-border context. It is therefore necessary to facilitate the work of the SMEs and microenterprises by harmonising the national provisions on accessibility while maintaining the necessary safeguards.
(53)
For microenterprises and SMEs to benefit from this Directive they must genuinely fulfil the requirements of Commission Recommendation 2003/361/EC (17), and the relevant case law, aimed at preventing the circumvention of its rules.
(54)
In order to ensure the consistency of Union law, this Directive should be based on Decision No 768/2008/EC of the European Parliament and of the Council (18), since it concerns products already subject to other Union acts, while recognising the specific features of the accessibility requirements of this Directive.
(55)
All economic operators falling within the scope of this Directive and intervening in the supply and distribution chain should ensure that they make available on the market only products which are in conformity with this Directive. The same should apply to economic operators providing services. It is necessary to provide for a clear and proportionate distribution of obligations which correspond to the role of each economic operator in the supply and distribution process.
(56)
Economic operators should be responsible for the compliance of products and services, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of accessibility and to guarantee fair competition on the Union market.
(57)
The obligations of this Directive should apply equally to economic operators from the public and private sectors.
(58)
The manufacturer having detailed knowledge of the design and production process is best placed to carry out the complete conformity assessment. While the responsibility for the conformity of products rests with the manufacturer, market surveillance authorities should play a crucial role in checking whether products made available in the Union are manufactured in accordance with Union law.
(59)
Importers and distributors and should be involved in market surveillance tasks carried out by national authorities, and should participate actively, providing the competent authorities with all necessary information relating to the product concerned.
(60)
Importers should ensure that products from third countries entering the Union market comply with this Directive and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to those products.
(61)
When placing a product on the market, importers should indicate, on the product, their name, registered trade name or registered trade mark and the address at which they can be contacted.
(62)
Distributors should ensure that their handling of the product does not adversely affect the compliance of the product with the accessibility requirements of this Directive.
(63)
Any economic operator that either places a product on the market under its name or trademark or modifies a product already placed on the market in such a way that compliance with applicable requirements might be affected should be considered to be the manufacturer and should assume the obligations of the manufacturer.
(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.
(65)
This Directive should follow the principle of ‘think small first’ and should take account of the administrative burdens that SMEs are faced with. It should set light rules in terms of conformity assessment and should establish safeguard clauses for economic operators, rather than providing for general exceptions and derogations for those enterprises. Consequently, when setting up the rules for the selection and implementation of the most appropriate conformity assessment procedures, the situation of SMEs should be taken into account and the obligations to assess conformity of accessibility requirements should be limited to the extent that they do not impose a disproportionate burden on SMEs. In addition, market surveillance authorities should operate in a proportionate manner in relation to the size of undertakings and to the small serial or non-serial nature of the production concerned, without creating unnecessary obstacles for SMEs and without compromising the protection of public interest.
(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.
(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.
(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.
(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.
(70)
Microenterprises are distinguished from all other undertakings by their limited human resources, annual turnover or annual balance sheet. The burden of complying with the accessibility requirements for microenterprises therefore, in general, takes a greater share of their financial and human resources than for other undertakings and is more likely to represent a disproportionate share of the costs. A significant proportion of cost for microenterprises comes from completing or keeping paperwork and records to demonstrate compliance with the different requirements set out in Union law. While all economic operators covered by this Directive should be able to assess the proportionality of complying with the accessibility requirements of this Directive and should only comply with them to the extent they are not disproportionate, demanding such an assessment from microenterprises providing services would in itself constitute a disproportionate burden. The requirements and obligations of this Directive should therefore not apply to microenterprises providing services within the scope of this Directive.
(71)
For microenterprises dealing with products falling within the scope of this Directive the requirements and obligations of this Directive should be lighter in order to reduce the administrative burden.
(72)
While some microenterprises are exempted from the obligations of this Directive, all microenterprises should be encouraged to manufacture, import or distribute products and to provide services that comply with the accessibility requirements of this Directive, in order to increase their competitiveness as well as their growth potential in the internal market. Member States should, therefore, provide guidelines and tools to microenterprises to facilitate the application of national measures transposing this Directive.
(73)
All economic operators should act responsibly and in full accordance with the legal requirements applicable when placing or making products available on the market or providing services on the market.
(74)
In order to facilitate the assessment of conformity with the applicable accessibility requirements it is necessary to provide for a presumption of conformity for products and services which are in conformity with voluntary harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (19) for the purpose of drawing up detailed technical specifications of those requirements. The Commission has already issued a number of standardisation requests to the European standardisation organisations on accessibility, such as standardisation mandates M/376, M/473 and M/420, which would be relevant for the preparation of harmonised standards.
(75)
Regulation (EU) No 1025/2012 provides for a procedure for formal objections to harmonised standards that are considered not to comply with the requirements of this Directive.
(76)
European standards should be market-driven, take into account the public interest, as well as the policy objectives clearly stated in the Commission’s request to one or more European standardisation organisations to draft harmonised standards, and be based on consensus. In the absence of harmonised standards and where needed for internal market harmonisation purposes, the Commission should be able to adopt in certain cases implementing acts establishing technical specifications for the accessibility requirements of this Directive. Recourse to technical specifications should be limited to such cases. The Commission should be able to adopt technical specifications for instance when the standardisation process is blocked due to a lack of consensus between stakeholders or there are undue delays in the establishment of a harmonised standard, for example because the required quality is not reached. The Commission should leave enough time between the adoption of a request to one or more European standardisation organisations to draft harmonised standards and the adoption of a technical specification related to the same accessibility requirement. The Commission should not be allowed to adopt a technical specification if it has not previously tried to have the accessibility requirements covered through the European standardisation system, except where the Commission can demonstrate that the technical specifications respect the requirements laid down in Annex II of Regulation (EU) No 1025/2012.
(77)
With a view to establishing, in the most efficient way, harmonised standards and technical specifications that meet the accessibility requirements of this Directive for products and services, the Commission should, where this is feasible, involve European umbrella organisations of persons with disabilities and all other relevant stakeholders in the process.
(78)
To ensure effective access to information for market surveillance purposes, the information required to declare compliance with all applicable Union acts should be made available in a single EU declaration of conformity. In order to reduce the administrative burden on economic operators, they should be able to include in the single EU declaration of conformity all relevant individual declarations of conformity.
(79)
For conformity assessment of products, this Directive should use the Internal production control of ‘Module A’, set out in Annex II to Decision No 768/2008/EC, as it enables economic operators to demonstrate, and the competent authorities to ensure, that products made available on the market conform to the accessibility requirements while not imposing an undue burden.
(80)
When carrying out market surveillance of products and checking compliance of services, authorities should also check the conformity assessments, including whether the relevant assessment of fundamental alteration or disproportionate burden was properly carried out. When carrying out their duties authorities should also do so in cooperation with persons with disabilities and the organisations that represent them and their interests.
(81)
For services, the information necessary to assess conformity with the accessibility requirements of this Directive should be provided in the general terms and conditions, or in an equivalent document, without prejudice to Directive 2011/83/EU of the European Parliament and of the Council (20).
(82)
The CE marking, indicating the conformity of a product with the accessibility requirements of this Directive, is the visible consequence of a whole process comprising conformity assessment in a broad sense. This Directive should follow the general principles governing the CE marking of Regulation (EC) No 765/2008 of the European Parliament and of the Council (21) setting out the requirements for accreditation and market surveillance relating to the marketing of products. In addition to making the EU declaration of conformity, the manufacturer should inform consumers in a cost-effective manner about the accessibility of their products.
(83)
In accordance with Regulation (EC) No 765/2008, by affixing the CE marking to a product, the manufacturer declares that the product is in conformity with all applicable accessibility requirements and that the manufacturer takes full responsibility therefor.
(84)
In accordance with Decision No 768/2008/EC, Member States are responsible for ensuring strong and efficient market surveillance of products in their territories and should allocate sufficient powers and resources to their market surveillance authorities.
(85)
Member States should check the compliance of services with the obligations of this Directive and should follow up complaints or reports related to non-compliance in order to ensure that corrective action has been taken.
(86)
Where appropriate the Commission, in consultation with stakeholders, could adopt non-binding guidelines to support coordination among market surveillance authorities and authorities responsible for checking compliance of services. The Commission and Member States should be able to set up initiatives for the purpose of sharing the resources and expertise of authorities.
(87)
Member States should ensure that market surveillance authorities and authorities responsible for checking compliance of services check the compliance of the economic operators with the criteria set out in Annex VI in accordance with Chapters VIII and IX. Member States should be able to designate a specialised body for carrying out the obligations of market surveillance authorities or authorities responsible for checking compliance of services under this Directive. Member States should be able to decide that the competences of such a specialised body should be limited to the scope of this Directive or certain parts thereof, without prejudice to the Member States’ obligations under Regulation (EC) No 765/2008.
(88)
A safeguard procedure should be set up to apply in the event of disagreement between Member States over measures taken by a Member State under which interested parties are informed of measures intended to be taken with regard to products not complying with the accessibility requirements of this Directive. The safeguard procedure should allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage in respect of such products.
(89)
Where the Member States and the Commission agree that a measure taken by a Member State is justified, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings in the harmonised standards or in the technical specifications.
(90)
Directives 2014/24/EU (22) and 2014/25/EU (23) of the European Parliament and of the Council on public procurement, defining procedures for the procurement of public contracts and design contests for certain supplies (products), services and works, establish that, for all procurement which is intended for use by natural persons, whether general public or staff of the contracting authority or entity, the technical specifications are, except in duly justified cases, to be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users. Furthermore, those Directives require that, where mandatory accessibility requirements are adopted by a legal act of the Union, technical specifications are, as far as accessibility for persons with disabilities or design for all users are concerned, to be established by reference thereto. This Directive should establish mandatory accessibility requirements for products and services covered by it. For products and services not falling under the scope of this Directive, the accessibility requirements of this Directive are not binding. However, the use of those accessibility requirements to fulfil the relevant obligations set out in Union acts other than this Directive would facilitate the implementation of accessibility and contribute to the legal certainty and to the approximation of accessibility requirements across the Union. Authorities should not be prevented from establishing accessibility requirements that go beyond the accessibility requirements set out in Annex I to this Directive.
(91)
This Directive should not change the compulsory or voluntary nature of the provisions related to accessibility in other Union acts.
(92)
This Directive should only apply to procurement procedures for which the call for competition has been sent or, in cases where a call for competition is not foreseen, where the contracting authority or contracting entity has commenced the procurement procedure after the date of application of this Directive.
(93)
In order to ensure the proper application of this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of: further specifying the accessibility requirements that, by their very nature, cannot produce their intended effect unless they are further specified in binding legal acts of the Union; changing the period during which economic operators are to be able to identify any other economic operator who has supplied them with a product or to whom they have supplied a product; and further specifying the relevant criteria that are to be taken into account by the economic operator for the assessment of whether compliance with the accessibility requirements would impose a disproportionate burden. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (24). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(94)
In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to the technical specifications. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (25).
(95)
Member States should ensure that adequate and effective means exist to ensure compliance with this Directive and should therefore establish appropriate control mechanisms, such as a posteriori control by the market surveillance authorities, in order to verify that the exemption from the accessibility requirements application is justified. When dealing with complaints related to accessibility, Member States should comply with the general principle of good administration, and in particular with the obligation of officials to ensure that a decision on each complaint is taken within a reasonable time-limit.
(96)
In order to facilitate the uniform implementation of this Directive, the Commission should establish a working group consisting of relevant authorities and stakeholders to facilitate exchange of information and of best practices and to provide advice. Cooperation should be fostered between authorities and relevant stakeholders, including persons with disabilities and organisations that represent them, inter alia, to improve coherence in the application of provisions of this Directive concerning accessibility requirements and to monitor implementation of its provisions on fundamental alteration and disproportionate burden.
(97)
Given the existing legal framework concerning remedies in the areas covered by Directives 2014/24/EU and 2014/25/EU, the provisions of this Directive relating to enforcement and penalties should not be applicable to the procurement procedures subject to the obligations imposed by this Directive. Such exclusion is without prejudice to the obligations of Member States under the Treaties to take all measures necessary to guarantee the application and effectiveness of Union law.
(98)
Penalties should be adequate in relation to the character of the infringements and to the circumstances so as not to serve as an alternative to the fulfilment by economic operators of their obligations to make their products or services accessible.
(99)
Member States should ensure that, in accordance with existing Union law, alternative dispute resolutions mechanisms are in place that allow the resolution of any alleged non-compliance with this Directive prior to an action being brought before courts or competent administrative bodies.
(100)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (26), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a Directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(101)
In order to allow service providers sufficient time to adapt to the requirements of this Directive, it is necessary to provide for a transitional period of five years after the date of application of this Directive, during which products used for the provision of a service which were placed on the market before that date do not need to comply with the accessibility requirements of this Directive unless they are replaced by the service providers during the transitional period. Given the cost and long life-cycle of self-service terminals, it is appropriate to provide that, when such terminals are used in the provision of services, they may continue to be used until the end of their economic life, as long as they are not replaced during that period, but not for longer than 20 years.
(102)
The accessibility requirements of this Directive should apply to products placed on the market and services provided after the date of application of the national measures transposing this Directive, including used and second-hand products imported from a third country and placed on the market after that date.
(103)
This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, this Directive seeks to ensure full respect for the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community and to promote the application of Articles 21, 25 and 26 of the Charter.
(104)
Since the objective of this Directive, namely, the elimination of barriers to the free movement of certain accessible products and services, in order to contribute to the proper functioning of the internal market, cannot be sufficiently achieved by the Member States because it requires the harmonisation of different rules currently existing in their respective legal systems, but can rather, by defining common accessibility requirements and rules for the functioning of the internal market, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,
