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31 October 2022

The European Accessibility Act – 1 of 5 Insights

The European Accessibility Act – a slow start to a long journey

Jo Joyce looks at what businesses need to know about the EAA.

Jo Joyce

Jo Joyce

Senior Counsel

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Elaine Fletcher

Elaine Fletcher

Senior Counsel

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The European Accessibility Act (EAA) came into force in June 2019.  Member States were required to transpose it by 28 June 2022 (although not all have done so), and it will apply from 28 June 2025. Despite the potentially significant new obligations that it places on a broad range of organisations and sectors, the EAA seems so far to have escaped the attention of many businesses.

Although the UK government has no current plans to implement measures that align with the EAA (and has no obligation, post-Brexit, to do so), the majority of businesses offering e-commerce, audio visual media, or e-banking services will have to adopt the measures required of businesses operating from EU Member States, if they wish to offer their products and services to customers there (see here for more on the UK accessibility framework).

A vision for a more accessible future

In 2008, the UN Convention on the Rights of Persons with Disabilities came into force and marked a significant milestone in the history of legal obligations relating to accessibility. Although the UN Convention did not create enforceable rights for individuals at national level, it set the direction of travel towards greater accessibility for all. Since 2008, nation states and supranational bodies (such as the EU) have increased their focus on accessibility across the fields of healthcare, education, and employment. More recently the focus has begun to switch to consumer accessibility and the need to ensure that the opportunities presented by the digital revolution of recent decades can be enjoyed by all.

The growth of e-commerce and online social networking, boosted by demands arising from isolation requirements during the COVID-19 pandemic, should present great opportunities for those with mobility related accessibility needs. However, when IT hardware, websites, apps and digital publications are designed and created largely by those without accessibility needs, it is easy for inaccessible features to be inadvertently adopted. For a visually impaired shopper, trying to use an online shop that doesn’t work with screen reader technology may be a very exclusionary experience. If the only viable customer service route is through a helpline, deaf service users will have to sacrifice either their independence or their range of consumer choice. 

The EAA is the EU’s response to the needs of consumers with accessibility requirements and comes after many years of campaigning and pressure from disability rights groups across Europe. The EU Commission describes the aims of the new regime created by the EAA as “to improve the functioning of the internal market for accessible products and services, by removing barriers created by divergent rules in Member States”. While it will not be a comprehensive regime, the focus on accessibility brought in by the EAA is likely to mean significant work for retailers, digital content creators (audio visual generally and e-books specifically), and consumer finance providers, among others.

What does the new regime cover?

The EAA contains a lengthy list of obligations for those involved in the supply chain for goods and services - service providers and manufacturers, importers, and distributors of products and services. E-commerce services, e-banking services, and audio visual media services are specifically covered by the EAA, as are computer hardware and operating systems, self-service terminals (ATMs, ticket machines, check-in machines) smartphones, TV equipment, e-books and e-readers. Some aspects of the built environment are also covered by the EAA, though the implementation of these sections is optional for Member States.

The EAA differentiates between a "manufacturer" and a "distributor".  A manufacturer is defined as "any natural person who manufactures a product or has a product designed or manufactured and markets that product under its name or trademark".   A distributor is defined as "any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes a product available on the market".

The EAA imposes different obligations on manufacturers and distributors in relation to their provision of products, but there is no differentiation made when dealing with services and service providers.  This means that entire supply chains (such as in digital publishing) will be subject to the requirements of the EAA. 

What are the requirements?

The EAA creates general requirements for goods and services as well as specific requirements for particular types of goods and services. Although these should be considered in detail as part of a compliance assessment, examples include ensuring that user instructions are clear and accessible through multiple media, that help functions are easy to use, that digital content is compatible with screen readers and closed captions and/or sign language interpretation is available with visual content.

Pre-existing standards for website accessibility (eg the WCAG standards) are likely to be useful to site operators but compliance with these is likely to be a necessary but not sufficient step to EAA compliance as they cover technical factors such as tone, font type and compatibility with screen reader technology, rather than some of the broader requirements, such as having a telephone helpline and a chatbox option for customer services.

Are there any exemptions?

Micro-enterprises (with fewer than 10 employees and an annual turnover or balance sheet of less than €2 million) will be encouraged, but not required to comply with the EAA.

Other businesses will have to comply unless a specific exemption applies to them in relation to a specific adaptation to a product or service. If a change to a product would represent a “disproportionate burden” to the company or if it would “fundamentally alter” the product or service in question then an exemption may be available.  However, this will only apply narrowly in respect of the characteristics of the relevant product or service and will not alleviate requirements to comply with other aspects of the EAA.

Businesses are required to undertake their own assessments of exemption applicability and this is likely to be a significant exercise in many cases. Some guidance is available as to what criteria to apply and how to make the assessment, but so far, most Member States have offered very little detail on this and businesses may need to adopt a cautious approach when determining their eligibility for an exemption.

Who gains extra protection under the EAA?

An important win for disability rights campaigners was ensuring that the EAA protected a broad category of consumers, not just those with specific disabilities. “Persons with disabilities” is defined in the EAA as individuals who have long-term physical, mental, intellectual or sensory impairments which mean that the barriers to access built into goods and services may hinder their full and effective participation in society on an equal basis. This means, for example, that age related impairments are covered by the EAA.

Although campaigners pushed for the EAA to be a Regulation in order to ensure greater harmonisation of consumer rights across the EU, lawmakers decided that the extent and nature of pre-existing accessibility laws across Member States made that aim too ambitious. As a result, the EAA is a Directive rather than a Regulation despite its name.  This means it will not have direct effect in Member States and businesses operating across the EU will have to comply with 27 different interpretations and implementation approaches to the EAA. Finding a consistent approach across the EU will be a big part of the compliance process for most Europe-wide businesses.

When does it take effect?

As mentioned, the EAA became EU law in 2019 but Member States had until 28 June 2022 to pass new laws or regulations or to adapt existing accessibility laws to bring them into line with the EAA.  While some Member States have produced new legislation, others are behind schedule – and have received letters of censure from the EU Commission, warning them to take action soon.

The EU Commission has a transposition tracker (see here) listing the Member States that have completed their legislative efforts and confirmed their compliance with the EAA.

Member States have a further three years, until June 2025, to start enforcing the requirements of the EAA.  Although they could begin enforcement before then, no Member State has indicated an intention to do so.

Services that are delivered through products that were already on the market prior to 28 June 2025 may be delivered until June 2030, after which inaccessible products may no longer be used in the delivery of services.

What are Member States doing?

In some Member States, dedicated consumer accessibility protections pre-dated the EAA; in others, accessibility has been handled largely through employment law or more general anti-discrimination law. This means that some countries need to update existing measures (in Germany some 13 enactments have been amended or passed – see here for more) whereas others have to create entirely new laws in markets unfamiliar with accessibility rights.

How will the EAA be enforced?

The EAA creates a requirement for Member States to establish market surveillance authorities. These authorities will check compliance with the EAA and, in particular, whether relevant assessments are carried out correctly by operators who use the ‘disproportionate burden’ or ‘fundamental alterations’ exemptions.

Market surveillance authorities will have powers to require businesses to take appropriate corrective action to ensure their service or product meets EAA requirements and will have the power to demand withdrawal of the offending service or product from the market if corrective action is not taken (all other countries must make the same demand if one Member State does).

EU countries must ensure that these authorities have sufficient powers, resources and information to perform their role. Member States may extend these powers or create other enforcement mechanisms. Germany, for example, has created a right for the market surveillance authority to issue a fine of up to €100,000 for failure to heed the requirements of the EAA and the directions of the market surveillance authority.

What should businesses do?

Although June 2025 may feel far away, in the context of product and service development lifecycles, it is coming up fast.

Once businesses have determined that they are in scope (not a micro-enterprise, and not likely to be one by the enforcement deadline) the next step is to assess relevant goods and services to identify areas in which they do not yet meet the requirements of the EAA (plus any additional requirements created by Member States).

Necessary changes to products and services should be identified and then businesses can consider whether the ‘disproportionate burden’ or ‘fundamental alterations’ will apply. 

Significant user testing may be required to ensure that products and services are made accessible without losing functionality and businesses will need to start now if they hope to be in compliance by the June 2025 deadline.

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