Better Late Than Never

In January 2011, European Commissioner responsible for Justice, Fundamental Rights and Citizenship Viviane Reding promised to present, by the end of 2012, a European Accessibility Act. It took five years of tireless efforts on the part of organizations representing people with disabilities for the European Commission to honour its commitment by publishing, on December 2, 2015, the Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services.

The Proposal

There is no doubt that the Proposal is positive, as it aims to reinforce the rights of persons with disabilities in the perspective of the EU internal market and welcome recommendations made last September by the United Nations Committee on the Rights of Persons with Disabilities. The Commission has therefore decided to put in place a proposal that would be acceptable by all the different institutional and representative entities of stakeholders, manufacturers, service providers and consumers. It is appropriate to begin by saying that, in our opinion, it is a compromise, but nevertheless a positive result for the disability movement, which has fought for years and now finally gains a document on which to exercise its critical and advisory function. A dramatic challenge, if I may say, in a community dimension significantly affected by the resurgence of barriers that we thought were finally broken down. At the present time, there are laws and standards in place in EU Members States relating to the accessibility of products and services, but no harmonization of the single market. The new Directive will contribute to the harmonization of accessibility rules, ensuring the unobstructed movement of accessible products and services across the EU internal market.

In reality, people with disabilities still face many obstacles in accessing goods and services on the same terms as other citizens, limitations and barriers that are not compatible with a society that wants to be defined as inclusive and supportive. Nowadays it is possible for blind people to solve many problems through the use of expensive smartphones equipped with sophisticated technical solutions that also make it easier to use the touch screen and the complicated voice applications. People with other types of disabilities must face other barriers that are just as exclusive and stressful. We therefore need an ambitious and effective European directive on accessibility that can make a difference.

Analysis

So what does this Directive foresee once it comes into force and is binding on all Member States? The proposed Directive will be a binding standard for Member States that will integrate it in their respective jurisdictions. The European Accessibility Act (Act) is thus an appropriate measure for the implementation of the EU commitments regarding the rights of disabled persons on the basis of Union Treaties and the United Nations Convention on the Rights of Persons with Disabilities (Convention) in the context of the single market. The scope of the application includes a wide range of products and services essential to promote independent living for citizens with disabilities. The legal basis of the Directive is Article 114 of the Treaty on the Functioning of the European Union concerning the internal market. The scope of action is therefore determined by market principles and not by the principles of non-discrimination and equal treatment. However, since the European Union has ratified the Convention, these principles cannot, however, be disregarded.

Goods and services

The typologies of goods and services selected by the European Commission are the following:

Products

- advanced equipment and operating systems of common use with computers; - self-service terminals including ATMs, ticketing, and check-in machines;

- advanced computer equipment for telephony services (smartphones);

- advanced computer equipment for audiovisual services (tablets, televisions).

Services

- telephony services and related terminal equipment; - audiovisual services and related terminal equipment;

- passenger transport services, including air, rail, bus and maritime, and related websites;

- banking services;

- eBooks;

- eCommerce.

While the products and services related to ICT are widely covered, the scope of the implementation of the Act should include a larger number of products and services, ideally those commonly used. There are important issues relating to the built and urban environment regarding the provision of goods and services in the present context. A mandatory requirement of accessibility of these environments would be a reasonable solution. The obligation of providers and commercial facilities to comply with accessibility should be prescribed in the Act. The current text of the proposal does not include, however, the right to access the websites of economic operators, which should be fully accessible. In addition, the scope does not cover many types of goods and services which are of essential importance in the daily life of disabled people, such as household appliances (washing machines, cookers, ovens, remote controls) and everything concerning home automation. The POS payment terminals (ATMs) that cause problems for people with disabilities are not explicitly covered by the Act.

Beneficiaries and recipients

A positive aspect of the proposal is the identification of the beneficiaries of the Directive, that is, persons with temporary or permanent functional limitations and disabilities, a significant percentage of the population.

The proposal covers all economic operators, public and private, manufacturers, representatives, importers and distributors, in order to include the entire commercial chain and allow more control points.

Exceptions, presumption of conformity, certification and enforcement

Then there are exceptions, which are based on the principles of fundamental alteration and disproportionate burden. The use of these exceptions should be examined very carefully, because it could jeopardize the effectiveness of the Directive in situations where, to evade the law, a company announces that making a product or a service accessible is too complicated or too expensive. Another critical aspect is the presumption of conformity. According to harmonized European standards (formally recognized by the EU), products would satisfy the accessibility requirements of the Directive. Standardization as an accessibility implementation tool must be understood, but the standard development system should be more inclusive and include the involvement of representative organizations of disabled persons. Moreover, no form of certification for compliance of services with accessibility requirements is envisaged. This could be achieved with an appropriate European brand. The provision of an enforcement mechanism is a key element of the Directive, together with the determination of appropriate sanctions in case of violation.

Transposition

Finally, the transposition period of this Directive at the national level, correctly expected in two years, seems appropriate, while the period of six years for the implementation of the Directive after its entry into force is definitely too long. Given the rapidly changing nature and limited duration of the products and services covered by the Directive, it would be appropriate to provide for a gradual implementation period appropriate to the life-cycle of products and services. In conclusion, the proposed directive is a good beginning for the legislative process to come. As the American experience has taught us, a set of rules which provides a solid implementation and an effective monitoring mechanism can be a highly effective means to ensure that goods and services are accessible for persons with disabilities.

It is therefore necessary for European institutions to strengthen the proposed Directive, reviewing the text and inserting strong, binding provisions in order to address accessibility comprehensively and make it a market expansion factor within the EU.

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