EdLaw
Fundamental alteration, disproportionate burden and presumption of conformity
The two escape valves — requirements apply only to the extent they do not require a fundamental alteration of the product/service or impose a disproportionate burden, assessed against the Annex VI criteria and documented — and the presumption of conformity for products and services meeting harmonised standards or technical specifications.
Article 14 — Fundamental alteration and disproportionate burden
Verbatim from EUR-Lex (Directive (EU) 2019/882, OJ text 32019L0882), via the Publications Office Cellar API.
1. The accessibility requirements referred to in Article 4 shall apply only to the extent that compliance:
- (a) does not require a significant change in a product or service that results in the fundamental alteration of its basic nature; and
- (b) does not result in the imposition of a disproportionate burden on the economic operators concerned.
2. Economic operators shall carry out an assessment of whether compliance with the accessibility requirements referred to in Article 4 would introduce a fundamental alteration or, based on the relevant criteria set out in Annex VI, impose a disproportionate burden, as provided for in paragraph 1 of this Article.
3. Economic operators shall document the assessment referred to in paragraph 2. Economic operators shall keep all relevant results for a period of five years to be calculated from the last making available of a product on the market or after a service was last provided, as applicable. Upon a request from the market surveillance authorities or from the authorities responsible for checking compliance of services, as applicable, the economic operators shall provide the authorities with a copy of the assessment referred to in paragraph 2.
4. By way of derogation from paragraph 3, microenterprises dealing with products shall be exempted from the requirement to document their assessment. However, if a market surveillance authority so requests, microenterprises dealing with products and which have chosen to rely on paragraph 1 shall provide the authority with the facts relevant to the assessment referred to in paragraph 2.
5. Service providers relying on point (b) of paragraph 1 shall, with regard to each category or type of service, renew their assessment of whether the burden is disproportionate:
6. Where economic operators receive funding from other sources than the economic operator’s own resources, whether public or private, that is provided for the purpose of improving accessibility, they shall not be entitled to rely on point (b) of paragraph 1.
7. The Commission is empowered to adopt delegated acts in accordance with Article 26 to supplement Annex VI by further specifying the relevant criteria that are to be taken into account by the economic operator for the assessment referred to in paragraph 2 of this Article. When further specifying those criteria, the Commission shall take into account not only the potential benefits for persons with disabilities, but also those for persons with functional limitations.
When necessary, the Commission shall adopt the first such delegated act by 28 June 2020. Such act shall start to apply, at the earliest, in 28 June 2025.
8. Where economic operators rely on paragraph 1 for a specific product or service they shall send information to that effect to the relevant market surveillance authorities, or authorities responsible for checking the compliance of services, of the Member State where the specific product is placed on the market or the specific service is provided.
The first subparagraph shall not apply to microenterprises.
Article 15 — Presumption of conformity
Verbatim from EUR-Lex (Directive (EU) 2019/882, OJ text 32019L0882), via the Publications Office Cellar API.
1. Products and services which are in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union, shall be presumed to be in conformity with the accessibility requirements of this Directive in so far as those standards or parts thereof cover those requirements.
2. The Commission shall, in accordance with Article 10 of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised standards for the product accessibility requirements set out in Annex I. The Commission shall submit the first such draft request to the relevant committee by 28 June 2021.
3. The Commission may adopt implementing acts establishing technical specifications that meet the accessibility requirements of this Directive where the following conditions have been fulfilled:
- (a) no reference to harmonised standards is published in the Official Journal of the European Union in accordance with Regulation (EU) No 1025/2012; and
- (b) either:
- (i) the Commission has requested one or more European standardisation organisations to draft a harmonised standard and there are undue delays in the standardisation procedure or the request has not been accepted by any European standardisation organisations; or
- (ii) the Commission can demonstrate that a technical specification respects the requirements laid down in Annex II of Regulation (EU) No 1025/2012, except for the requirement that the technical specifications should have been developed by a non-profit making organisation.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(2).
4. Products and services which are in conformity with the technical specifications or parts thereof shall be presumed to be in conformity with the accessibility requirements of this Directive in so far as those technical specifications or parts thereof cover those requirements.
ANNEX VI — CRITERIA FOR ASSESSMENT OF DISPROPORTIONATE BURDEN
Verbatim from EUR-Lex (Directive (EU) 2019/882, OJ text 32019L0882), via the Publications Office Cellar API.
Criteria to carry out and document the assessment:
- 1. Ratio of the net costs of compliance with accessibility requirements to the overall costs (operating and capital expenditures) of manufacturing, distributing or importing the product or providing the service for the economic operators.
Elements to use to assess the net costs of compliance with accessibility requirements:
- (a) criteria related to one-off organisational costs to take into account in the assessment:
- (i) costs related to additional human resources with accessibility expertise;
- (ii) costs related to training human resources and acquiring competences on accessibility;
- (iii) costs of development of a new process for including accessibility in the product development or service provision;
- (iv) costs related to development of guidance material on accessibility;
- (v) one-off costs of understanding the legislation on accessibility;
- (b) criteria related to on-going production and development costs to take into account in the assessment:
- 2. The estimated costs and benefits for the economic operators, including production processes and investments, in relation to the estimated benefit for persons with disabilities, taking into account the amount and frequency of use of the specific product or service.
- 3. Ratio of the net costs of compliance with accessibility requirements to the net turnover of the economic operator.
Elements to use to assess the net costs of compliance with accessibility requirements:
- (a) criteria related to one-off organisational costs to take into account in the assessment:
- (i) costs related to additional human resources with accessibility expertise;
- (ii) costs related to training human resources and acquiring competences on accessibility;
- (iii) costs of development of a new process for including accessibility in the product development or service provision;
- (iv) costs related to development of guidance material on accessibility;
- (v) one off costs of understanding the legislation on accessibility;
- (b) criteria related to on-going production and development costs to take into account in the assessment:
Sources
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