EDF proposed amendments to the European Accessibility Act July 2016

Transcription

1 EDF proposed amendments to the European Accessibility Act July 2016

2 Table of contents... 1 Table of contents... 2 EDF proposed amendments to the European Accessibility Act... 2 Recitals... 3 Article 1 - Scope... 9 Article 2 Definitions Article 3 Accessibility Requirements Article 5 Obligations of Manufacturers Article 12 Fundamental alterations and disproportionate burden Article 13 Presumption of conformity Article 14 Common technical specifications Article 15 EU declaration of conformity of products Article 16 General principles of the CE-marking of products Article 17 Market surveillance of products Article 18 Compliance of services Article 19 Procedure for dealing with products presenting a risk related to accessibility at national level Article 21 Applicability of accessibility requirements to other Union acts Article 22 Disproportionate burden Article 25 Enforcement Article 26 Penalties Article 27 Transposition Related documents Acknowledgments Contact persons at the EDF secretariat EDF proposed amendments to the European Accessibility Act... 2

3 The European Disability Forum is an independent NGO that represents the interests of 80 million Europeans with disabilities. EDF is a unique platform which brings together representative organisations of persons with disabilities from across Europe. EDF is run by persons with disabilities and their families. We are a strong, united voice of persons with disabilities in Europe. This document should be read along with the EDF proposed amendments to the Annex I of the European Accessibility Act. Introduction EDF welcomed the publication of the legislative proposal for a European Accessibility Act in December 2015 and after a thorough analysis of the content published its initial position paper in February In this paper, EDF already expressed deep concerns about the effectiveness of the Act in certain areas and the fact that its potential will not be fulfilled by the proposal as it currently stands. EDF has engaged in an active dialogue with its membership as well as with ANEC, the European consumer voice in standardisation and AGE Platform Europe, the network representing over 40 million older people in Europe in the development of its analysis and would now like to make some concrete suggestions for amendments which you will find below. Recitals Commission proposal (2) The demand for accessible products and services is high and the number of citizens with disabilities and/or functional limitations will increase significantly with the ageing of the European Union's population. An environment where products and services are more accessible allows for a more inclusive society and facilitates independent living. (3) The disparities between the laws and administrative measures adopted by the Member States in relation to accessibility of (2) The demand for accessible products and services is high and the number of citizens with disabilities and/or functional limitations will increase significantly with the ageing of the European Union's population. An environment where products and services are more accessible allows for a more inclusive society and is a prerequisite for independent living. (3) The disparities between the laws and administrative measures adopted by the Member States in relation to accessibility of 3

4 products and services for persons with functional limitations including persons with disabilities create barriers to the free movement of such products and services and distort effective competition in the internal market. Economic operators, in particular small and medium-sized enterprises (SMEs), are particularly affected by those barriers. (6) 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 for complying with fragmented legal requirements across the Union. (13) The entry into force of the Convention in the Member States legal orders entails the need to adopt additional national provisions on accessibility of products and services which without Union action would further increase disparities between national provisions. (16) Products and services falling within the scope of this Directive are the result of a screening exercise, carried out during the preparation of the Impact Assessment that identified those relevant products and services for persons with functional limitations, including persons with disabilities and older persons, for which Member States have adopted or are likely to products and services for persons with functional limitations and persons with disabilities create barriers to the free movement of such products and services and distort effective competition in the internal market Economic operators, in particular small and medium-sized enterprises (SMEs), are particularly affected by those barriers. (6) 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, freedom of movement of products and services, as well as the free movement of persons, including persons with disabilities, and mobility, as well as to help economic operators to concentrate resources on innovation instead of using those resources for complying with fragmented legal requirements across the Union. (13) The entry into force of the Convention in the Member States legal orders entails the need to adopt additional national provisions on accessibility of products and services and the built environment related to the provision of goods and services which without Union action would further increase disparities between national provisions. (16) Products and services falling within the scope of this Directive are the result of a screening exercise, carried out during the preparation of the Impact Assessment that identified those relevant products and services for persons with functional limitations and persons with disabilities and older persons, for which Member States have adopted or are likely to adopt diverging 4

5 adopt diverging national accessibility requirements. (18) It is necessary to introduce the accessibility requirements in the least burdensome manner for the economic operators and the Member States, notably by only including in the scope the products and services which have been thoroughly selected. (19) It is therefore 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 circulation in the internal market. (23) 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 enables 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 in Annex X. (24) It is necessary to provide that, for legislative acts of the Union establishing accessibility obligations without providing accessibility requirements or specifications, accessibility is defined by reference to the accessibility requirements of this Directive. That is the case of Directive 2014/23/EU of the European Parliament and of the Council, Directive 2014/24/EU of the European Parliament and of the Council, and Directive national accessibility requirements. (18) It is necessary to introduce the accessibility requirements which enable all people to fully use the products and services and infrastructure covered by this Directive in the least burdensome manner for the economic operators and the Member States. (19) It is therefore necessary to specify accessibility requirements for the placing on the market of products and services as well as the built environment connected to the provision of those products and services which fall within the scope of this Directive in order to ensure their free circulation in the internal market. (23) Without common accessibility requirements of the built environment connected to products and services, any accessibility standards of goods and services cannot be effective in ensuring accessibility for persons with disabilities.. Therefore, this Directive obliges the Member States to include the built environment used in the provision of the products and services under the scope of this Directive, ensuring compliance with the accessibility requirements set in Annex X. (24) It is necessary to provide that, for legislative acts of the Union establishing accessibility obligations without providing accessibility requirements or specifications, accessibility is defined by reference to the accessibility requirements of this Directive. That is the case of Directive 2014/23/EU of the European Parliament and of the Council, Directive 2014/24/EU of the European Parliament and of the Council, and Directive 5

6 2014/25/EU of the European Parliament and of the Council, which require that technical specifications and technical or functional requirements of the concessions, works or services falling within their scope take into account accessibility criteria for persons with disabilities or "design for all" users. (30) The manufacturer having detailed knowledge of the design and production process is best placed to carry out the complete conformity assessment procedure. The obligations for conformity assessment should rest with the manufacturer. (37) 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 2014/25/EU of the European Parliament and of the Council, which require that technical specifications and technical or functional requirements of the concessions, works or services falling within their scope take into account accessibility criteria for persons with disabilities or "design for all" users. As well as Directive 2010/13/EU on Audiovisual Media Services and any other future EU legislation referencing accessibility for persons with disabilities. This Directive will help consumers to make informed decisions and the EU shall take accessibility into account when revising Regulation 83/2011 on Consumers Rights, as well as any existing or future EU legislation referencing accessibility. (30) An impartial conformity assessment is crucial to ensure compliance. Self-assessment alone is not best placed to guarantee this. An independent assessment body would be better. However, this could also be done by a strengthened Market Surveillance Authority with the necessary competences and resources to complement self-assessment. (37) This Directive should be widereaching, while also taking account of the administrative burdens that SMEs are faced with. It should set precise and effective rules in terms of conformity assessment and economic operators could invoke safeguard clauses under exceptional circumstances only, rather than providing for general exceptions and derogations for those enterprises. Exceptions to the rules of conformity assessment should be interpreted restrictively. Consequently, when setting up the rules for the selection and 6

7 account and the obligations to assess conformity of accessibility requirements should be limited to the extent that they do not pose 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 interests. (39) In order to facilitate conformity assessment with applicable 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 for the purpose of expressing detailed technical specifications of those requirements. The Commission has already issued a number of standardisation requests to the European standardisation organisations on accessibility which would be relevant for the preparation of harmonised standards. (40) In the absence of harmonised 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 pose 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 interests. (39) In order to facilitate conformity assessment with applicable 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 for the purpose of expressing detailed technical specifications of those requirements. The Commission has already issued a number of standardisation requests to the European standardisation organisations on accessibility which would be relevant for the preparation of harmonised standards. The issuing of further standardisation requests on specific issues related to this Directive will be considered by the Commission because EU standards can significantly facilitate the implementation of this proposed Directive by the Member States and the private sector. In that regard, Disabled Persons Organisations should be directly involved or consulted in the development of those standards. (40) In the absence of harmonised 7

8 standards and where needed for market harmonisation purposes, the Commission should be able adopt implementing acts establishing common technical specifications for the accessibility requirements set in this Directive. (43) For services, the information necessary to assess the conformity with the accessibility requirements should be provided in the general terms and conditions, or equivalent document. (44) 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 setting out the requirements for accreditation and market surveillance relating to the marketing of products. standards and where needed for market harmonisation purposes, the Commission should be able adopt implementing acts establishing common technical specifications for the accessibility requirements set in this Directive with the involvement of Disabled Persons Organisations. (43) For services, the information necessary to assess the conformity with the accessibility requirements should be provided in the general terms and conditions, or equivalent document in accessible formats. (44) The CE marking, indicating the conformity of a product with the accessibility requirements of this Directive, is the 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 setting out the requirements for accreditation and market surveillance relating to the marketing of products. The CE marking will be complemented by information on the packaging to indicate accessibility to the users. (55) The accessibility requirements set out in the Annex I of this Directive often refer to terms usually applied for accessibility reasons and in other EU harmonised law such as the Directive on the accessibility of public sector bodies websites. These terms are perceivable, understandable, operable and robust. Perceivability, meaning that information, including user interface components, must be presentable to users in ways they can perceive; 8

9 operability, meaning that the operable parts, including the user interface components and navigation, must be operable; understandability, meaning that information, including 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. Article 1 - Scope Commission proposal 1. Chapters I, II to V, and VII apply to the following products: (a) general purpose computer hardware and operating systems; (b) the following self-service terminals: (i) Automatic Teller Machines; (ii) ticketing machines; (iii) check-in machines. (c) consumer terminal equipment with advanced computing capability related to telephony services; (d) consumer terminal equipment with advanced computing capability related to audio-visual media services. 2. Chapters I, II to V, and VII, apply to the following services: (a) telephony services and related consumer terminal equipment with advanced computing capability; (b) audiovisual media services and related consumer equipment with advanced computing capability; 1. Chapters I, II to V, and VII apply to the following products: (a) general purpose computer hardware and operating systems; (b) the following self-service terminals: (i) Automatic Teller Machines; (ii) ticketing machines; (iii) check-in machines. (iv) payment terminals (c) consumer terminal equipment with advanced computing capability related to telephony services; (d) consumer terminal equipment with advanced computing capability related to audio-visual media services. (e) household appliances operated by a user interface 2. Chapters I, II to V, and VII, apply to the following services: (a) telephony services and related consumer terminal equipment with advanced computing capability; (b) audiovisual media services and related consumer equipment with advanced computing capability; 9

10 (c) air, bus, rail and waterborne passenger transport services; (d) banking services; (e) e-books; (f) e-commerce. 3. Chapters I, VI and VII of this Directive apply to the following: (a) public contracts and concessions which are subject to Directive 2014/23/EU Directive 2014/24/EU and Directive 2014/25/EU. (b) the preparation and implementation of programmes under Regulation (EU) No 1303/2013 of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund; and Regulation (EU) No 1304/2013 of the European Parliament and of the Council. (c) tender procedures for public passenger transport services by rail and by road under Regulation (EC) No 1370/2007 of the European Parliament and of the Council. (d) transport infrastructure in accordance with Regulation (EU) No 1315/2013 of the European Parliament and of the Council. (c).1 air, bus, rail and waterborne passenger transport services, (c).2 air, bus, rail and waterborne passenger transport vehicles, and related infrastructure; (d) banking services; (e) e-books; (f) e-commerce, websites of products and services providers, media and news websites, online platforms and social media; (g) accommodation services; 3. Chapters I, VI and VII of this Directive apply to the following: (a) public contracts and concessions which are subject to Directive 2014/23/EU Directive 2014/24/EU and Directive 2014/25/EU. (b) the preparation and implementation of programmes under Regulation (EU) No 1303/2013 of the European Parliament and of the Council laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund; and Regulation (EU) No 1304/2013 of the European Parliament and of the Council. (c) tender procedures for public passenger transport services by rail and by road under Regulation (EC) No 1370/2007 of the European Parliament and of the Council. (d) transport infrastructure in accordance with Regulation (EU) No 1315/2013 of the European Parliament and of the Council 4. Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements for accessibility established by this Directive. 10

11 Justification: The scope as it has been proposed by the European Commission is already very limited compared to what the Disability Movement and other Civil Society Organisations originally asked for and what was supported in the Commission s own Impact Assessment. It is important to widen the scope to make the Act meaningful and to fulfil the obligations under the UNCRPD. Accommodation services have already been identified in the Commission s own Impact Assessment as one of the high priority areas to be tackled under the Act (see p. 17) but it was finally not included in the legislative proposal. EDF does not see a reason why this aspect was excluded, considered its crucial importance for persons with disabilities. According to the Impact Assessment, the main barrier for tourism accessibility is lack of information (inaccessible websites, unreliable information on accessibility features) and attitudinal barriers (e.g. lack of staff training), followed by inaccessible facilities and premises. (p. 38). This Directive has the potential to make sure that technological breakthroughs adopt a Universal Design approach that come up with new accessible products. In many surveys among persons with disabilities, one of the mostly mentioned inaccessible products in their everyday lives is household appliances. With the up-and-coming Commission initiative on the Internet of Things and smart appliances, people can control the functioning of different household devices through a hub (like a smartphone or touch screen) with a user interface that facilitates the communication between the person and the machine. Given the existing requirements for accessible user interfaces, EDF believes that this can be the moment to make these upcoming products more accessible. The Impact Assessment also shows that Member States have different rules for web accessibility that affect crucial private sector websites. Following the adoption of the Directive on the accessibility of public sector bodies websites, and given that there is a worldwide consensus on the standards to be applied for websites (W3C WCAG 2.0), the European Accessibility Act should fill the gap left by the Web Accessibility Directive, which covers only public sector bodies, and not, for instance, the websites of private operators providing services of general interest for the public (such as healthcare, childcare, social inclusion and social security areas, as well as in the transport sector and the electricity, gas, heat, water, electronic communication and postal services). Furthermore, as consumers, persons with disabilities should enjoy the right to make informed decisions, therefore, even though the websites of product and services provides do not have the possibility to buy them online, it should be designed in such a way that persons with disabilities can get the same information as their peers. Finally, we believe that in our current information societies, persons with disabilities should have the right to access news websites and be able to participate in social media and online platforms, which should be designed in an accessible way, including the 11

12 authoring tools to be able to create accessible content, with the normal exemption to the content generated by users. For example, a video-sharing online platform shall be designed following the web accessibility guidelines, but shall also allow users, when they wish so, to be able to upload videos with subtitles for the deaf and hard of hearing, audio description and sign language interpretation. Paragraph 4 has been added to the Commission proposal because it is not sufficiently clear from the text that the Accessibility Act will provide for minimum harmonisation measures. EDF wants to underline that Member States are allowed to do better and go beyond the requirements in the Accessibility Act, which can be seen as a good basis but are certainly not the best possible accessibility standard to be considered as a benchmark. Article 2 Definitions Commission proposal For the purposes of this Directive, the following definitions shall apply: (1) accessible products and services are products and services that are perceptible, operable and understandable for persons with functional limitations, including persons with disabilities, on an equal basis with others; (2) universal design referred to also as design for all 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 specialised design; universal design does not exclude assistive devices for particular groups of persons with functional limitations, including persons with disabilities where this is needed; (21) e-commerce means the online sale of products and services. For the purposes of this Directive, the following definitions shall apply: (1) accessible products and services are products and services that are perceptible, operable and understandable for persons with functional limitations and persons with disabilities, on an equal basis with others; (2) universal design referred to also as design for all 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 specialised design; universal design does not exclude assistive devices for particular groups of persons with functional limitations, and persons with disabilities where this is needed; (21) e-commerce means the online sale of products and services, including any third party elements needed for the provision of the online sale. 12

13 (22) service provider means any national or legal person in the EU, as referred to in Article 48 of the Treaty and established in a Member State, who offers or provides a service falling under the scope of this Directive. (23) Assistive technology means any item, piece of equipment, or product system that is used to increase, maintain, or improve functional capabilities of individuals with functional limitations, and persons with disabilities and older people; (24) Access service means a service such as audio description, subtitles for the deaf and hard of hearing, and signing that improves the accessibility of audiovisual content for persons with disabilities; (25) Subtitles for the deaf and hard of hearing (SDH) means synchronized visual text alternatives for both speech and nonspeech audio information needed to understand the media content. (26) audio description means additional audible narrative, interleaved with the dialogue, which describes the significant aspects of the visual content of audiovisual media that cannot be understood from the main soundtrack alone (27) Spoken subtitles or audio subtitles means read aloud of subtitles in the national language when the audio speech is in a different language. (28) Relay services means phone services operated by interpreters that enable people who are deaf or hard of hearing or 13

14 who have a speech impairment, to communicate by phone through an interpreter with a person who can hear in a manner that is "functionally equivalent" to the ability of an individual without a disability (29) Real time text means communication using the transmission of text where characters are transmitted by a terminal as they are typed in such a way that the communication is perceived by the user as being continuous (30) Authoring tool means any software or collection of software components that can be used by authors, alone or collaboratively, to create or modify content for use by others including other authors (31) Accommodation services means services that provide short-term lodging and other hospitality services such as hotels, rural gîtes, campsites, hostels and apartments for rent as well as other private accommodation facilities. Justification: With these additions, EDF aims at providing more clarity on specific concepts related to accessibility that may cause confusion. For instance, SDH are not exactly the same as subtitles, which is the written transcription of a dialogue in the national language of the audiovisual content. SDH also provide information about the non-speech information, such as music, noises, etc. This is why the two concepts are not interchangeable and therefore have separate definitions. Article 3 Accessibility Requirements 14

15 Commission proposal 1. Member States shall ensure that the products and services referred to in Article 1(1) and 1(2) comply with the accessibility requirements set out in Annex I in accordance with paragraphs 2 to 9 of this Article. 2. General purpose computer hardware and operating systems shall comply with the requirements set out in Section I of Annex I. 3. The following self-service terminals: Automatic Teller Machines, ticketing machines and check-in machines shall comply with the requirements set out in Section II of Annex I. 4. Telephony services, including emergency services and the related consumer terminal equipment with advanced computing capability, shall comply with the requirements set out in Section III of Annex I. 1. Member States shall ensure that the products and services referred to in Article 1(1) and 1(2) comply with the accessibility requirements set out in Annex I in accordance with paragraphs 2 to 9 of this Article. 2. General purpose computer hardware and operating systems as well as household appliances operated by a user interface shall comply with the requirements set out in Section I of Annex I. 3. The following self-service terminals: Automatic Teller Machines, ticketing machines,check-in machines, and payment terminals shall comply with the requirements set out in Section II of Annex I. 4. Telephony services, including emergency services and the related consumer terminal equipment with advanced computing capability, shall comply with the requirements set out in Section III of Annex I. Member States shall ensure the availability of at least one text based relay service and one video based relay service, within the entire territory of the Member State and continuously, in consultation with users organisations, including organisations representing persons with disabilities, and that these relay services are interoperable with the telephony services. 5. Audiovisual media services and the Member States shall also ensure the availability of audio, video and real-time text communication (Total Conversation) with national, regional, and local emergency services. 15

16 related consumer equipment with advanced computing capability shall comply with the requirements set out in Section IV of Annex I. 5. Audiovisual media services and the related consumer equipment with advanced computing capability shall comply with the requirements set out in Section IV of Annex I. By the date established in article 27.2 of this Directive, audiovisual media service providers broadcasting in the European Union shall make accessible their services as follows: - At least 75 % of the overall programming shall include subtitles for the deaf and hard of hearing (SDH) - At least 75 % of the overall programming subtitled into the national language shall include spoken subtitles - At least 15 % of the overall programming shall include audio description - At least 5 % of the overall programming shall include sign language interpretation Every following year the audiovisual media service providers shall increase the provision of access services as follows: - 5 % more of the overall programming with subtitles for the deaf and hard of hearing - 5 % more of the overall programming subtitled into the national language with spoken subtitles - 2 % more of the overall programming with audio description - 2 % more of the overall programming with sign language interpretation 6. Air, bus, rail and waterborne passenger transport services, the websites, The access services shall be provided for different types of programmes, including those for children, and at different times during the day, without concentrating the accessible content in the least common time slots for the general audience. Audiovisual media service providers 16

17 the mobile device-based services, smart ticketing and real-time information and Selfservice terminals, ticketing machines and check-in machines used for provision of passenger transport services shall comply with the corresponding requirements set out in Section V of Annex I. 7. Banking services, the websites, the mobile device-based banking services, selfservice terminals, including Automatic Teller machines used for provision of banking services shall comply with the requirements set out in Section VI of Annex I. 8. E-books shall comply with the requirements set out in Section VII of Annex I. 9. E-commerce shall comply with the requirements set out in Section VIII of Annex I. should be encouraged to consult users organisations, including Disabled People s Organisations, to prioritise the programmes to be made accessible. 6. Air, bus, rail and waterborne passenger transport services, the websites, the mobile device-based services, smart ticketing and real-time information and Selfservice terminals, ticketing machines and check-in machines used for provision of passenger transport services shall comply with the corresponding requirements set out in Section V of Annex I. 7. Banking services, the websites, the mobile device-based banking services, selfservice terminals, including Automatic Teller machines used for provision of banking services and payment terminals shall comply with the requirements set out in Section VI of Annex I. 8. E-books shall comply with the requirements set out in Section VII of Annex I. 9. E-commerce, websites of products and services providers, media and news websites, online platforms and social media shall comply with the requirements set out in Section VIII of Annex I. 10. Member States may decide, in the light of national conditions, that the built environment used by clients of passenger transport services including the environment that is managed by service providers and by The user-generated content is exempted from the requirements set out in Section VIII of Annex I, whilst the available authoring tools shall be accessible for persons with disabilities and shall facilitate the creation of accessible content. (10 NEW). Accommodation services shall comply with the requirements set out in 17

18 infrastructure operators as well as the built environment used by clients of banking services, and customer services centres and shops under the scope of telephony operators shall comply with the accessibility requirements of Annex I, section X, in order to maximise their use by persons with functional limitations, including persons with disabilities. Justification Sections VIII and X of Annex I. 10. Member States shall ensure that the built environment used by clients of passenger transport services including the environment that is managed by service providers and by infrastructure operators as well as the built environment used by clients of banking services, and customer services centres and shops under the scope of telephony operators, as well as any other service or place for the purchase of any of the products included in this Directive shall comply with the accessibility requirements of Annex I, section X, in order to maximise their use by persons with functional limitations, and persons with disabilities. The built environment has been identified by the Commission s own Impact Assessment (p.5) as one of the aspects that is likely to be addressed by diverging national legislation and this Directive should therefore contain mandatory provisions covering the build environment. This will also ensure that only parts of a service (e.g. the ATM) but not the built environment or infrastructure that surrounds it (e.g. stairs leading into the building where the ATM is located) will be accessible. Not making accessibility of the built environment binding will weaken the stance of the entire Act and fails to fulfil Article 9 of the UNCRPD. Persons with hearing disabilities, such as deaf persons and hard of hearing persons, do not enjoy the telephony services on equal basis with others. That is why it is crucial that this Directive ensures the following: - The availability and interoperability of Real-Time Text (RTT) with other telephony services such as video or audio across Europe to allow citizens to communicate through this system which, contrary to SMS or other chats, makes the communication much more fluid, making users able to perceive it as a real-time conversation. Instead of sending message by message, RTT sends automatically character by character. RTT can be seen as a replacement for the old TTY (short for TeleTYpewriter), also known as text telephones. This system has already been proposed by the US government in the revision of the Section 508 of the US Rehabilitation Act 1, and has been embraced by big operators such as AT&T

19 - The availability of relay services in all Member States 24/7, because persons with hearing disabilities have the right to be able to call anybody at anytime. The 2009 revision of the telecommunications framework marked the objective of providing equal access and choice for persons with disabilities, however the implementation differs broadly among Member States. According to the last BEREC consultation on this matter 3, only 5 EU countries have both relay services available with restrictions in time of use (only Finland has text-relay service 24h), while 10 countries have absolutely no relay service for an everyday use (meaning not for emergency services). The EAA should give the freedom to Member States to decide how to achieve this goal in collaboration with the operators and Disabled People s Organisations. - Last but not least, the EAA should make sure that EU 112 number is fully accessible as it is in the Netherlands 4, through the use of Total Conversation, for which there are Technical Reports, Technical Specifications and Implementation Guidelines already in place, and that allow citizens to contact the emergency services through a real-time audio or video call as well as real-time text conversation. The SMS access to emergency services has been established in only 22 Member States, according to the last Commission s report 5, and in some of them people need to register beforehand, which undermines the spirit of the 112 service and violates the right to freedom of movement of people across the EU. The SMS system is definitely not sufficient in such an important matter for which the technology already allows a seamless and accessible solution for all. In fact, in 2015 the EU was examined by the UN Committee on the Rights of Persons with Disabilities on the implementation of the UN CRPD. In the concluding observations 6, paragraph 31 the Committee recommends that the European Union take necessary measures to ensure that emergency number 112 is fully accessible across the European Union to all persons with all types of disabilities. Given that the revision of the Audiovisual Media Service Directive released by the Commission in May 2016 removes the very soft but only article on accessibility, we believe that the EAA should also cover and complement the AVMSD. We include in this amendment the gradual and quantitative target approach that has proved to be useful in the provision of access services in countries such as the UK or France. In the Study on Assessing and Promoting E-Accessibility 7, published by the Commission in November 2013, three areas were assed in the 27 Member States plus the U.S., Canada and Australia: web accessibility, Legislation only in Dutch: - Click here for Google translation F1&Lang=en

20 telecommunications and accessibility on television. In the latter, one of the main conclusions of the study highlights that: better results seem generally to be achieved where there are specific obligations imposed in legislation and/or by the regulators; in the absence of such obligations, there seems to be a lot less likelihood that the relevant accessibility measures are being provided by broadcasters in a country. Looking at those countries with higher levels of access services one clear conclusion comes up: in all of them there are binding requirements for the media providers. The UK is one of the most successful countries in providing accessible TV broadcasting according to the data of the e-accessibility study. Almost 100 % of subtitling in the two main public and commercial channels, from 5 to 7 % of sign language interpretation in the overall programming, and from 15 to 24 % of audio description. Therefore, EDF proposes to set out those quantitative targets and a way to keep on improving for those audiovisual media service providers that are already on those levels. Article 5 Obligations of Manufacturers Commission proposal 9. Manufacturers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation necessary to demonstrate the conformity of the product, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by products which they have placed on the market and to ensure compliance with the requirements referred to in Article 3. Justification: 9. Manufacturers shall be in the position to provide all the information and documentation necessary to demonstrate the conformity of the product at any given moment, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by products which they have placed on the market and to ensure compliance with the requirements referred to in Article 3. EDF welcomes the fact that the Accessibility Act covers a wide range of economic operators (manufacturers, representatives, importers, and distributors). The Directive should cover all economic operators, both public and private, without exception. It is also important that manufacturers can give information about the conformity of a product 20

21 at any moment and not just upon request of the authorities, so that consumers can verify the conformity with the accessibility requirements at their own initiative. Article 12 Fundamental alterations and disproportionate burden Commission proposal 1. The accessibility requirements referred to in Article 3 apply to the extent that they do not introduce a significant change in an aspect or feature of a product or service that results in the alteration of the basic nature of the product or service. 2. Accessibility requirements referred to in Article 3 apply to the extent that they do not impose a disproportionate burden on the economic operators concerned. 3. In order to assess whether compliance with accessibility requirements regarding products or services imposes a disproportionate burden, the economic operators shall take account, of the following: (a) the size, resources and nature of the economic operators; (b) the estimated costs and benefits for the economic operators in relation to the estimated benefit for persons with disabilities, taking into account the frequency and duration of use of the specific product or service. 4. The burden shall not be deemed disproportionate where it is compensated by funding from other sources than the economic operator s own resources, whether public or private. 5. The assessment of whether 1. The accessibility requirements referred to in Article 3 apply to the extent that they do not introduce a significant change in an aspect or feature of a product or service that results in the alteration of the basic nature of the product or service. 2. Accessibility requirements referred to in Article 3 apply to the extent that they do not impose a disproportionate burden on the economic operators concerned. 3. In order to assess whether compliance with accessibility requirements regarding products or services imposes a disproportionate burden, the economic operators shall take account, of the following: (a) the size, resources and nature of the economic operators; (b) the estimated costs and benefits for the economic operators in relation to the estimated benefit for persons with functional limitations and persons with disabilities. 4. The burden shall not be deemed disproportionate where it is compensated by funding from other sources than the economic operator s own resources, whether public or private. Lack of priority, time or knowledge shall not be considered as legitimate reasons to claim the disproportionate burden. 5. The initial assessment of whether 21

22 compliance with accessibility requirements regarding products or services imposes a fundamental alteration or disproportionate burden shall be performed by the economic operator. 6. Where the economic operators have used the exception provided for in paragraphs 1 to 5 for a specific product or service they shall notify the market surveillance authority of the Member State in the market of which the product or service is placed or made available. Notification shall include the assessment referred to in paragraph 3. Microenterprises are exempted from this notification requirement but must be able to supply the relevant documentation upon request from a relevant market surveillance authority. compliance with accessibility requirements regarding products or services imposes a fundamental alteration or disproportionate burden shall be performed by the economic operator. 6. Where the economic operators have used the exception provided for in paragraphs 1 to 5 for a specific product or service they shall notify the market surveillance authority of the Member State in the market of which the product or service is placed or made available. Notification shall include the assessment referred to in paragraph 3. The market surveillance authority shall systematically verify the assessment for such an exemption to be granted unless the economic operator has provided an independent third party assessment. 7. A structured dialogue shall be established between relevant stakeholders, including persons with disabilities and their representative organisations and the Market Surveillance Authorities to ensure that adequate principles for the assessment of the exemptions are established to make sure they are coherent. 8. Member States are encouraged to provide incentives and guidelines to Microenterprises to facilitate the implementation of this Directive. The procedures and guidelines shall be developed in consultation with relevant stakeholders, including persons with disabilities and their representative organisations. Justification: 22

23 According to the UN Committee s General Comment No. 2 (2014) on accessibility, any notion of disproportionate burden is unacceptable as a principle. It states that the obligation to implement accessibility is unconditional, i.e. the obliged entity may not excuse the omission referring to the burdens of provision the access for persons with disabilities. The text in its current form does therefore not guarantee that economic operators will invest to make their products and services more accessible. EDF fears that this provision will jeopardize the implementation of the proposed Directive as it is not entirely clear what parameters would be used to measure the disproportionate burden and how this will be enforced in practice. Involving Disabled Persons Organisations directly would guarantee a coherent approach to the exemptions, allowing verification of the use of the exemption by technical experts on accessibility issues. The best way to guarantee an independent and impartial assessment would be assessment by a third party. However, this is costly and could delay the assessment procedure. In order to make it as easy a possible for the manufacturer, a combination of self-assessment and systematic verification by the Market Surveillance Authority can be the solution. Finally, it is important that the Market Surveillance Authorities have adequate resources, staff, and knowledge to efficiently verify the assessment of the manufacturer. Stakeholders should also be involved to ensure that the principles, guidelines and benchmarks used for the assessment are coherent and adequate. Article 13 Presumption of conformity Commission proposal 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 covered by those standards or parts thereof, referred to in Article 3. 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 covered by those standards or parts thereof, referred to in Article 3. Justification: As the standardisation system currently works, it is mainly led by the industry. Disabled Persons Organisations and other users organisations are not systematically involved in establishing these standards, given the barriers that they face in terms of accessibility, 23

24 resources, and capacity. EDF believes that standardisation as a tool is useful but the system has to become more inclusive to ensure a balanced representation. Article 14 Common technical specifications Commission proposal 2. Products and services which are in conformity with the CTS referred to in paragraph 1 or parts thereof shall be deemed to be in conformity with the accessibility requirements referred to in Article 3, covered by those CTS or parts thereof. 2. Products and services which are in conformity with the CTS referred to in paragraph 1 or parts thereof shall be deemed to be in conformity with the accessibility requirements referred to in Article 3, covered by those CTS or parts thereof. 3. Relevant stakeholders, including persons with disabilities and their representative organisations, shall be consulted systematically as part of the procedure for the adoption of implementing acts. Justification: EDF supports the possibility for the European Commission to publish Common Technical Specifications (CTS). However, this procedure can be a lengthy and complicated one and in order to ensure a good quality outcome, Disabled Persons Organisations and other relevant stakeholders should be able to provide their views systematically. Article 15 EU declaration of conformity of products Commission proposal 4. By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the product. 4. By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the product. 5. In addition to the declaration of conformity, a notice on the packaging 24

25 Justification: shall inform consumers in a simple and precise way that the product incorporates accessibility features. EDF endorses the use of CE-marking in general, especially the fact that it obliges the economic operators to adhere to the rules of drawing up the EU declaration of conformity and the related technical file. Even though it is very useful to indicate compliance to the Market Surveillance Authorities, it has some shortcomings especially related to the recognition of accessibility by consumers. Since consumers are used to the fact that CEmarking is already used for the certification of other aspects of a product, such as conformity with the product safety rules, it would be useful to separately indicate to a consumer that the product is also accessible. Therefore, EDF suggests indicating accessibility on the packaging, so that every consumer can check easily which products are accessible without looking at the small print. Article 16 General principles of the CE-marking of products Commission proposal The CE marking shall be subject to the general principles set out in Article 30 of Regulation (EC) No 765/2008. Justification: The CE marking shall be subject to the general principles set out in Article 30 of Regulation (EC) No 765/2008. See previous justification. Article 17 Market surveillance of products Commission proposal 3. Member States shall ensure that information held by market surveillance authorities concerning the compliance of economic operators with the applicable accessibility requirements set out in Article 3 and the assessment of the exceptions provided for in Article 12, is made available to consumers upon request and in an accessible format, except where that 3. Member States shall ensure that information held by market surveillance authorities concerning the compliance of economic operators with the applicable accessibility requirements set out in Article 3 and the assessment of the exceptions provided for in Article 12, is made available to consumers and in an accessible format. 25

26 information cannot be provided for reasons of confidentiality as provided for in Article 19(5) of Regulation (EC) No 765/2008. Justification: Information about non-compliance with the accessibility requirements that is held by the authorities should be made publicly available systematically and not just upon request. Exceptions from this obligations for reasons of confidentiality could be misused as information about products can be too easily justified as being commercially sensitive, at least in the development stages of the product. Article 18 Compliance of services Commission proposal 1. Member States shall establish, implement and periodically update adequate procedures in order to: (a) check the compliance of services listed in Article 1(2) with the requirements set out in this Directive and the assessment of the exceptions provided for in Article 12; 1. Member States shall establish, implement and periodically update detailed and comprehensive procedures in order to: (a) check the compliance of services listed in Article 1(2) with the requirements set out in this Directive and the assessment of the exceptions provided for in Article 12; Article 19 Procedure for dealing with products presenting a risk related to accessibility at national level Commission proposal 8. Member States shall ensure that appropriate restrictive measures are taken in respect of the product concerned, such as withdrawal of the product from their market, without delay. 8. Member States shall ensure that appropriate restrictive measures are taken in respect of the product concerned, such as withdrawal of the product from their market, without delay. 9. To facilitate the exchange of information and best practices amongst 26

27 Justification: the Market Surveillance Authorities and to ensure coherence in the application of the requirements set out in the Directive, the Commission shall establish a working group formed by representatives of the national authorities and the representative organisations of the relevant stakeholders, including persons with disabilities and their representative organisations. It is important to involve representative organisations of the relevant stakeholders, including persons with disabilities and their representative organisations, since certain problems and shortcomings are more clearly seen from a consumers perspective. This will help the Market Surveillance Authorities to better do their work and give them insight in the day-to-day functioning of the procedures. The users experience is a valuable tool to improve the coherence and the application of the Directive, especially if pan-european organisations are involved that can give a comparative view on what works well in different Member States. Article 21 Applicability of accessibility requirements to other Union acts Commission proposal (d) To transport infrastructure in accordance with Article 37 of Regulation (EU) No 1315/2013. (d) To transport infrastructure in accordance with Article 37 of Regulation (EU) No 1315/2013. (e) Where applicable, all relevant EU legislation or to the provisions in EU legislation referring to accessibility for persons with disabilities. Article 22 Disproportionate burden Commission proposal 1. Accessibility requirements referred to in Article 21 apply to the extent that they do 1. Accessibility requirements referred to in Article 21 apply to the extent that they do 27

28 not impose a disproportionate burden on the competent authorities for the purposes of that Article. 2. In order to assess whether compliance with accessibility requirements referred to in Article 21 imposes a disproportionate burden, the competent authorities concerned shall take account, of the following: (a) the size, resources and nature of the competent authorities concerned; (b) the estimated costs and benefits for the competent authorities concerned in relation to the estimated benefit for persons with disabilities, taking into account the frequency and duration of use of the specific product or service; 3. The assessment of whether compliance with accessibility requirements referred to in Article 21 imposes a disproportionate burden shall be performed by the competent authorities concerned. 4. Where a competent authority has used the exception provided for in paragraphs 1, 2 and 3 for a specific product or service it shall notify the Commission thereof. The notification shall include the assessment referred to in paragraph 2. not impose a disproportionate burden on the competent authorities for the purposes of that Article. 2. In order to assess whether compliance with accessibility requirements referred to in Article 21 imposes a disproportionate burden, the competent authorities concerned shall take account, of the following: (a) the size, resources and nature of the competent authorities concerned; (b) the estimated costs and benefits for the competent authorities concerned in relation to the estimated benefit for persons with functional limitations and persons with disabilities; 3. The assessment of whether compliance with accessibility requirements referred to in Article 21 imposes a disproportionate burden shall be performed by the competent authorities concerned. Lack of priority, time or knowledge should not be considered as legitimate reasons to claim a disproportionate burden. 4. Where a competent authority has used the exception provided for in paragraphs 1, 2 and 3 for a specific product or service it shall notify the Commission thereof. The notification shall include the assessment referred to in paragraph 2 and it shall be made available to the public in accessible formats. 5. If the Commission has reasons to doubt the decision of the competent authority concerned, the Commission may request the working group referred to in Article 19.9 to verify the assessment referred to in paragraph 2 and issue an opinion. 28

29 Article 25 Enforcement Commission proposal 2. The means referred to paragraph 1 shall include: (a) provisions whereby a consumer may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are complied with; (b) provisions whereby public bodies or private associations, organisations or other legal entities which have a legitimate interest, in ensuring that the provisions of this Directive are complied with, may take action under national law before the courts or before the competent administrative bodies on behalf of consumers to ensure that the national provisions transposing this Directive are complied with. Justification: 2. The means referred to paragraph 1 shall include: (a) provisions whereby a consumer may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are complied with; (b) provisions whereby public bodies or private associations, organisations or other legal entities which have a legitimate interest, in ensuring that the provisions of this Directive are complied with, may take action under national law before the courts or before the competent administrative bodies on behalf of consumers to ensure that the national provisions transposing this Directive are complied with. (c) provisions whereby a comprehensive and adequately resourced complaints mechanism for consumers is established to complement a system of implementation and monitoring. It is positive that the consumer has the possibility to take legal action but the burden of enforcement should not rely on individual actions of consumers but should also be done by an adequately resourced and accessible complaints mechanism. The Market Surveillance Authorities, who will have to be equipped with the necessary expertise and power to do so, could take this role. Individual legal action should only be the last resort considering that many persons with disabilities already have problems accessing the justice system and court proceedings are costly and time-consuming. 29

30 Article 26 Penalties Commission proposal 1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. 2. The penalties provided for shall be effective, proportionate and dissuasive. 1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. 2. The penalties provided for shall be effective, proportionate and dissuasive. 3. Member States shall dedicate the necessary resources to enforce and collect penalties. Funds raised shall be reinvested in accessibility related measures. 3. Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them. 4. Penalties shall take into account the extent of the non-compliance, including the number of units of non-complying products or services concerned, as well as the number of people affected. 3. Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them. 4. Penalties shall take into account the extent of the non-compliance, including the number of units of non-complying products or services concerned, as well as the number of people affected. Article 27 Transposition Commission proposal 1. Member States shall adopt and publish, by [ insert date - two years after the entry into force of this Directive] at the latest, the laws, regulations and 1. Member States shall adopt and publish, by [ insert date - two years after the entry into force of this Directive] at the latest, the laws, regulations and 30

31 administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions. 2. They shall apply those provisions from [ insert date - six years after the entry into force of this Directive]. administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions. 2. They shall apply those provisions from [ insert date - 3 years after the entry into force of this Directive for products under Article 1(a) general purpose computer hardware and operating systems 5 years after entry into force of this Directive for products under Article 1(b) self-service terminals 4 years after the entry into force of this Directive for products under Article 1(c) - Consumer terminal equipment with advanced computing capability related to telephony services 4 years after the entry into force of this Directive for products under Article 1(d) - Consumer terminal equipment with advanced computing capabilities related to audiovisual media services 4 years after the entry into force of this Directive for products under Article 1(e) - Household appliances operated by a user interface 4 years after the entry into force of this Directive for services under Article 1.2(a) Telephony services 6 years after the entry into force of this Directive for services under Article 1.2(b) Audiovisual Media services 3 years after the entry into force of this Directive for services under Article 1.2(c)1 air, bus, rail and waterborne passenger transport 31

32 services (websites and mobile applications) 5 years after the entry into force of this Directive for services under Article 1.2(c)1 air, bus, rail and waterborne passenger transport services (self-service terminals and ticketing machines) 10 years after the entry into force of this Directive for services under Article 1.2(c)2 air, bus, rail and waterborne passenger transport services (vehicles and infrastructure) 5 years after the entry into force of this Directive for services under Article 1.2(d) banking services and payment terminals (self-service terminals and payment terminals) 3 years after the entry into force of this Directive for services under Article 1.2(d) banking services and payment terminals (banking service) 3 years after the entry into force of this Directive for services under Article 1.2(e) e-books 3 years after the entry into force of this Directive for services under Article 1.2(f) e-commerce, websites of providers of products and services, social media and news websites, and online platforms 3 years after the entry into force of this Directive for services under Article 1.2(g) accommodation services (websites) 3 years after the entry into force of this Directive for services under Article 1.2(g) accommodation services (built environment) 32

33 Justification: The proposed timeline of six years after the entry into force of the Directive for all products and services is too long. Considering that most products and services under the proposed Accessibility Act are related to ICT and are subject to a quick evolution and a short lifespan, a progress transposition period adjusted to the life-cycle of each product is more appropriate. Related documents EDF s initial position paper on the EAA (2016) EDF members positions on the EAA Commission proposal for a Directive on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services (European Accessibility Act), COM (2015) 615 EDF report: European Accessibility Act State of play (2014) EDF Position on the European Accessibility Act (2013) EDF reply to the Commission consultation on the European Accessibility Act (2012) EDF reply to the Commission consultation on the Audiovisual Media Services Directive (2015) EDF and AGE recommendations for an inclusive Digital Single Market (2015) EDF top campaign on Web Accessibility EDF Toolkit for the promotion of the European Standard (Mandate 376), accessibility requirements for ICT products and services Acknowledgments EDF would like to thank all those who have contributed to this paper, and in particular the members of the EDF Task Force on the Accessibility Act, the members of the EDF ICT expert group, and the members of the EDF transport expert group. 33

34 Contact persons at the EDF secretariat Marie Denninghaus, Mobility and Transport Officer Tel: +32 (0) , marie.denninghaus@edf-feph.org Alejandro Moledo, New Technologies and Innovation Officer Tel: +32 (0) , alejandro.moledo@edf-feph.org Should you have any problems in accessing the documentation, please contact the EDF Secretariat. (Tel: +32 (0) , info@edf-feph.org). 34