What’s happening?

In 2019, the EU adopted a new Directive which requires EU Member States to ensure that persons with disabilities are able to enjoy and access products and services across the EU more effectively. The Directive (Directive (EU) 2019/882 on the accessibility requirements for products and services) must be implemented in each EU Member State by 28 June 2025. The accessibility requirements of the Directive are not part of UK law. But businesses who supply products or services to consumers based in the EU will need to comply with the requirements in the EU Member State in which the consumer resides and should already be preparing for them.

What’s the Directive about?

The Directive is an internal market measure aimed at improving the free movement of accessible products and services across EU Member States and improving inclusivity for citizens with disabilities, the numbers of whom are projected to increase significantly. It is a harmonising measure, to which each EU Member State must give effect by way of domestic implementing legislation.

The Directive defines persons with disabilities in accordance with the United Nations Convention on the Rights of Persons with Disabilities which was adopted in December 2006. Specifically, Article 3(1) provides that:

“‘persons with disabilities’ means persons 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”

What is the Directive’s main requirement?

The Directive’s principal requirement is set out in Article 4. The Article requires businesses, under the national law of Member States, to ensure that an extensive range of accessibility requirements set out in Annex I of the Directive are met. These requirements include ensuring that:

• Information and instructions for use of products is made available by way of more than one sensory channel and presented in fonts of adequate size and suitable shape, using sufficient contrast and spacing.
• Products include software and hardware for interfacing with assistive technologies and instructions include a list of assistive devices which have been tested with the product.
• The packaging of a product, including information about opening, use and disposal, is accessible.
• Services are made accessible, for instance by ensuring that websites, on-line applications and mobile device-based services are accessible in a consistent and adequate way by making them perceivable, operable, understandable and robust.
• Services of vaious kinds, for instance E-books, banking and e-commerce services are provided in a way which maximises the foreseeable use by persons with disabilities.

The Directive’s scope includes a wide range of products and services, including computer hardware, smartphones, automatic ticketing machines (such as check-in kiosks at airports), Automtic Teller Machines (ATMs) and all manner of services such as audio-visual services, e-commerce services and banking services.

How will the Directive be enforced?

EU Member States must provide under their national law for adequate and effective enforcement of the Directive’s requirements. This includes ensuring that a consumer is able to take action before their national courts, either on their own behalf, or with the assistance of other persons or organisations. Member States must also ensure that relevant national authorities perform adequate market surveillance of products and services placed on their markets. The question of penalties and sanctions for non-compliance will be a matter for each Member State, but the penalties must – as a matter of EU Law – be effective, proportionate and disssuasive.

What should I be doing?

While the Directive includes some transitional measures (broadly speaking, services lawfully provided before 28 June 2025 can continue unchanged for five years from that date), as well as a proportionality exemption/qualification, the detailed nature of the requirements and their application to products and services placed on the market after 28 June 2025 means that businesses affected by the Directive should be taking action now. These actions might include:

• Cataloguing affected products and services.
• Running a compliance analysis against each product and service.
• Deploying compliance implementation/monitoring resources (human or systems-based).
• Considering whether any proportionality exemption might apply.
• Working with local counsel in those in EU Member States in which you have customers to ensure that national measures are identified, understood and complied with.

Our thoughts

This is a progressive piece of legislation, whose aims are both socially and economically desirable. Those UK based businesses who serve customers based in EU Member States will, by complying with the Directive’s requirements, show commitment to inclusivity and, potentially, win new customers. The work involved in adapting products and services to meet the needs of disabled consumers based in the EU will, in all likelihood, also go some way towards meeting UK domestic accessibilty obligations under the Equality Act 2010.

We are happy to assist any business wishing to understand the Directive and its requirements in more detail. We would be pleased to provide advice on the Directive, whether as part of a compliance review or more generally.