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The European Parliament’s position on the Accessibility Act – an EDF analysis October 2017

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Table of contents

About EDF ....................................................................................................................... 2  The European Parliament’s position on the Accessibility Act – an EDF analysis ................... 3  

Introduction ......................................................................................................................... 3  Executive summary ............................................................................................................. 3  Art. 1 – Scope ..................................................................................................................... 4  

Improvements .................................................................................................................. 4  Deteriorations .................................................................................................................. 4  

Art. 2 – Definitions ............................................................................................................... 5  Improvements .................................................................................................................. 5  Deterioration: ................................................................................................................... 5  

Art. 3 – Accessibility Requirements .................................................................................... 6  Improvements: ................................................................................................................. 6  Deteriorations: ................................................................................................................. 6  

Art. 12 – Fundamental Alterations and Disproportionate Burden ....................................... 6  Improvements: ................................................................................................................. 6  Deteriorations: ................................................................................................................. 7  

Art. 27 – Transposition ........................................................................................................ 7  Improvements: ................................................................................................................. 7  Deteriorations: ................................................................................................................. 7  

Other Articles ...................................................................................................................... 8  Improvements: ................................................................................................................. 8  Deteriorations: ................................................................................................................. 8  

Annex I ................................................................................................................................ 9  Improvements: ................................................................................................................. 9  Deteriorations: ............................................................................................................... 10  

Contact .............................................................................................................................. 11  

About EDF 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 organisation 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.

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The European Parliament’s position on the Accessibility Act – an EDF analysis

Introduction

In this analysis paper we will compare the outcome of the plenary vote in the European Parliament on the European Accessibility Act on 14 September 2017 with the previously published Commission proposal of 2 December 2015 (COM (2015) 615/2). EDF has campaigned intensely to improve the report of the European Parliament’s Internal Market Committee (IMCO), which was initially even weakening the Commission proposal. After the vote in the Parliament’s plenary assembly EDF can positively say that many improvements have been made and the European Parliament has shown that the rights of persons with disabilities cannot be compromised by business interest. However, several points of criticism remain that weaken the Parliament’s position – notably the blanket exemption for microenterprises. In the following text we will go into more details of what has been improved and what has deteriorated in comparison with the Commission proposal and we will explain what effects those changes have concretely on the lives of persons with disabilities. Please note: we worked with the available amendments voted in plenary which had not been compiled into a consolidated version of the complete text yet. Therefore, small changes in the final position of the European Parliament might still occur that are not reflected in our analysis at this stage.

Executive summary

Overview of the most important changes introduced by the Parliament’s position: Microenterprises: EDF regrets that this blanket exemption for all companies with less than ten employees has been granted so that they do not have to make their products or services accessible. Audiovisual Media Services (AVMS): It is equally regrettable that AVMS have been completely excluded from the scope of the Act which means that EU countries will not have a harmonised approach on how to make TV programmes and other audiovisual content accessible. Additionally, specific accessibility requirements for TVs are still missing. Public procurement and “other Union Acts”: On a positive note, EDF approves that the link to the “other Union Acts” has been maintained as it was outlined in the Commission proposal. Built environment: Also on the built environment a lot of progress was made and the provision is now obligatory, with certain exceptions.

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Transport: Many positive changes occurred in relation to transport and in the Parliament’s position all transport modes including public urban transport, hire cars, and taxis are covered. The transport requirements have been strengthened and even apply to vehicles and stations, as well as multi-modal transport. Enforcement: Several provisions have been added to strengthen the enforcement such as a better complaints mechanism, compulsory involvement of users, and strengthening of the Market Surveillance Authorities, although it has been weakened when concerns public procurement.

Art. 1 – Scope

Improvements

• The link to other Union acts such as the Public Procurement Directive, the EU Structural Funds, and the Trans-European Network Regulation (TEN-T) has been maintained. This means that the accessibility requirements of the Act (in Section IX of the Annex I) covering products, services and the built environment funded by public authorities have to be applied in those pieces of legislation mentioned above where accessibility criteria is an obligation.

• Payment terminals have been added (Art. 1.b.iii.a(new)). This means that payment terminals, e.g. a card reader in a shop or restaurant, also have to be made accessible.

• Scope of transport services has been widened to include mobility and intermodal connection services, including public urban transport such as underground, rail, tramway, trolleybus and buses. This also concerns vehicles, related infrastructure and the built environment as well as taxis and hire cars. This means that all modes of transport will now be covered and e.g. ticketing machines in metro stations also have to be accessible. The Parliament goes even further and also includes the vehicles themselves, e.g. the tram, to be accessible as well as the stations and stops. (Art. 1.2.c)

• Scope has been widened to include tourism services, including accommodation services. This means that e.g. hotels have to provide accessible websites and check-in procedures. (Art. 1.2.f.a(new))

• E-book readers have been included. This means that the equipment needed to read the e-books has to be accessible e.g. by being able to adapt the font and contrast, or navigate throughout the e-book. (Art. 1.1.d.a(new))

• Operating systems that are not embedded in the hardware, meaning that the user buys them independently from the computer, have to be as accessible as the operating systems that are pre-installed in the computer (Art. 1.2.a(new))

Deteriorations

• Microenterprises have been completely excluded from the scope of the Act. This means that many small companies of less than ten employees do not have to make their products or

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services accessible, which concerns e.g. many online shops, small publishers, and other service providers. (Art. 1.a(new))

• Audiovisual media services (AVMS) have been completely excluded from the scope of the Act. The only remaining aspects covered are the websites and mobile applications of AVMS providers (i.e. TV broadcasters and video on-demand services such as Netflix), but not the programmes, movies or series provided through them. This means that neither the audiovisual content itself, nor other important gateways to audiovisual services such as the Electronic Programming Guides or TV-based applications (for Smart TVs) will be covered. (Art. 1.2.b, see below more information about this in the assessment of Section IV of the Annex)

• Banking services are reduced to consumer banking services, which means that many services will remain inaccessible to employees and due to the narrow definition of consumer banking services also a range of financial services and products which should be available to everyone (Art. 1.2.d)

Art. 2 – Definitions

Improvements

• No significant improvements

Deterioration:

• The definition of “Consumer banking services” that was adopted is a very narrow one and only enables consumers to open and use payment accounts with “basic features”. It also excludes important banking services such as mortgages, insurances, pensions, electronic money, credits, or investment products. This means that many consumers will still not be able to use banking services without barriers, even though they are customers like everyone else. (Art. 2.1.20.a.(new))

• The definition of “Universal Design” was deleted. This means that there is still not clarity over what is meant by the specific concept of “Universal Design”, especially in relation to accessibility. (Art. 2.1.2)

• The definitions for transport services introduced by the Parliament are not suitable for the Accessibility Act because they are based on existing Passengers’ Rights legislation. However, Passengers’ Rights do not deal with accessibility at all but rather with the assistance to persons with disabilities – these two concepts are completely different. Furthermore, limiting the definitions to existing legislation means that those transport modes currently not covered by passengers’ rights legislation are also excluded from the definitions in the Act. This means for example that that urban transport such as metros, buses, and trams do not fall under those definitions and are still excluded. (Art. 2.1.21.a.(new) – Art. 2.1.21.d.(new)). [Note: due to an inconsistency in the amendments voted, urban transport is in fact included in the scope of the Act, which usually takes precedence over the definitions. However, this inconsistency has to be assessed legally to ensure coherence within the text]

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Art. 3 – Accessibility Requirements

Improvements:

• A binding clause on the accessibility of the built environment related to certain services has been adopted. The fact that it states that this clause is now binding marks a big improvement compared to the Commission proposal. However, it is limited to the built environment related to banking services, shops of telephony operators, and passenger transport services so the Accessibility Act will not solve all the problems related to accessibility of the built environment but it is a step forward taking also into account the inclusion of built environment procured under the other Union Acts covered by this Directive. (Art. 3.10)

• The requirements for transport as well as tourism have been widened to also cover intermodal services including urban transport, tourism accommodation services, and catering services. Those will have to comply with Section V of Annex I except if they are already covered by sectorial legislation. This means that transport providers in all transport modes will have to make e.g. ticketing machines accessible and comply with the requirements set out in the Act. (Art. 3.6)

• Payment terminals are also included to be covered by Section II of Annex I. (Art. 3.3.)

Deteriorations:

• Similar to the comments on Article 1, banking services are not sufficiently covered and the requirements are too weak. (Art. 3.7)

• The same is true for the requirements for AVMS. (Art. 3.5)

Art. 12 – Fundamental Alterations and Disproportionate Burden

Improvements:

• “Persons with functional limitations” has been added to indicate that the group of beneficiaries of accessibility is bigger than “only” persons with disabilities. This means particularly in relation to Art. 12 that when estimating the benefits of making a product or service accessible, a larger group has to be taken into account and thus making it less likely that the economic operator will be granted an exemption due to “disproportionate costs”. (Art. 12.3.b)

• A structured dialogue with stakeholders, including persons with disabilities, shall be established to ensure for example that the assessment for economic operators on which exemptions are based are coherent and clear. This is important because it means that stakeholders will also have an influence on deciding what is considered acceptable as an exemption and what is not. (Art. 12.6.b.(new))

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• Member States are encouraged to provide guidelines and incentives to microenterprises to facilitate the implementation of the Act; those guidelines shall be developed together with relevant stakeholders. This means that by applying those “soft” measures, microenterprises can be encouraged to apply the accessibility requirements in the Act on a voluntary basis. (Art. 12.6.c.(new)) [Note: This article is inconsistent with the amendment that completely excluded microenterprises from the scope of the Act so a legal analysis is necessary to determine whether this is possible. However, this clause can still theoretically be applied on a voluntary basis.]

Deteriorations:

• In the Commission proposal, the “disproportionate burden” cannot be applied whenever there is “funding from other sources than the economic operator’s own resources, whether public or private”. The Parliament limited this provision to the extra funding that is available only “for the purpose of improving accessibility”. EDF believes that economic operators should not be entitled to claim a “disproportionate burden” if they receive any extra funding, regardless of the purpose of that funding (Art. 12.4).

• The assessment carried out by economic operators to justify a “disproportionate burden” only has to be submitted to the national market surveillance authority upon request of this authority and no by default accompanying the notification. This means that when a company notifies the public authority that a given product is not accessible because of a disproportionate burden or a fundamental alteration, they will only need to prove this if the public authority asks for it. (Art. 12.6 and art. 22.4).

Art. 27 – Transposition

Improvements:

• The provisions of the Act shall be applicable after five years after entry into force of the Act, instead of six years as proposed by the Commission. This means that the transition period is shortened by a year. (Art.27.2)

Deteriorations:

• Self-service terminals such as ticketing machines or ATMs can still be used “until the end of their economically useful lives” and do not have to be exchanged with accessible ones. This means that even if the Accessibility Act were to be adopted in 2018, we could still have inaccessible ticketing machines in 2030, assuming that the machine has a life span of 5 – 10 years which is probably still a conservative estimate. (Art.2.b.(new))

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• Service providers can get a transitional period of five years during which they can still use the same products (even if they are not accessible) as they did before. (Art. 27.a.(new))

Other Articles

Improvements:

• A notice on the packaging of a product shall inform consumers about the accessibility features. This means that consumers can take their decision on which product to choose more easily based on what accessibility features they have. (Art. 15.4.a.(new))

• Member States are obliged to establish public databases of non-accessible products. This means that manufacturers of non-accessible products will be visible and publicly known which will provide an incentive to comply with the Act. Those national databases shall also be linked on European level to facilitate the exchange of information. (Art. 17 (new))

• The European Commission shall establish a working group of the national market surveillance authorities and relevant stakeholders, including persons with disabilities, to exchange information, ensure coherence, and give their opinion on exceptions. This is important because it will ensure that the rules are applied equally everywhere and that persons with disabilities can give feedback to the authorities in a structured manner. (Art. 20.a.(new)).

• The accessibility requirements for other Union Acts (e.g. public procurement, structural funds, etc.), which are detailed in Section IX of Annex I, shall also apply to all other relevant EU legislation that mentions accessibility. Furthermore, projects financed by EU funds that promote accessibility shall be prioritized to receive funding (Art. 21)

• A strengthening of the complaints mechanism to include the possibility of Alternative Dispute Resolution (ADR), individuals being represented by DPOs in court proceedings, and involving the Ombudsman. This is good because it makes it easier to complain for consumers. (Art. 25)

• Penalties that are imposed for a lack of accessibility are not replacing the obligation of the economic operator to make the product or service accessible. This is good because it means that a company cannot opt for the “easy way out” to pay in order to keep on selling a non-accessible smartphone. Instead, they still have to show that they are trying to improve accessibility. (Art. 26)

Deteriorations:

• The possibility for the Commission to adopt common technical specifications, meaning the technical documents to prove compliance with this Directive, has been weakened by establishing a set of conditions that prioritise standardisation, which is mainly led by industry players and in which organisations of persons with disabilities do not have much influence (Art. 13.1.b(new)).

• The possibility to recall products from the Internal Market that do not comply with the Act has been removed, meaning that products that have already been sold do not have to be

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recalled as it is the case when a product for example does not correspond to the necessary health and safety requirements (Art. 19.1.2 and others). However, the possibility to withdraw the products from the market still exists, meaning that economic operators are not allowed to continue selling inaccessible products if they are not in compliance with the Act.

• Only those consumers that are “directly affected” by the lack of accessibility can take legal action – this is limiting because it is unclear who is directly concerned and everybody should have the right to complain. (Art. 25)

• Similarly, the Parliament has excluded the application of the enforcement mechanism for users when products, services and buildings funded by tax payers’ money under public procurements do not comply with this Directive (Art. 25.2.b(new)).

Annex I

Improvements:

• Support services have been added for computers, telephony services and products, transport services, banking services and e-commerce. This means that consumers with disabilities will be able to contact the companies to ask for information and help in accessible modes of communication.

• Accessibility requirements specifically tackling ATMs, self-service terminals such as ticketing or check-in machines and payment terminals have been added. This means that there are requirements that include, among others, the possibility to use personal headsets or to extend the time to fulfil a task, to have tactilely discernible keys and controls, and to be able to activate the accessibility features of these machines autonomously. (Section II. Point 1).

• Accessibility requirements for telephony and emergency services, including their websites and mobile apps, have been added. This means that total conversation services would be available and interoperable across Europe and with 112 emergency services. Total conversation is the possibility to call by audio, video (especially useful for sign language users), and real-time text, i.e. the possibility to send the characters as being typed, which gives the feeling of a continuous conversation. (Section III. Point A. Point 1).

• Accessibility requirements for smartphones have also been added. This means that mobile phones will have to support high fidelity audio, a video resolution that allows sign language communication, real-time text and effective connection with hearing aids (Section III. Point B. Point 1).

• In transport services, payment terminals as well as mobility and tourism services are also covered by the requirements set out in this section. Specific requirements for services such as smart ticketing, electronic booking and reservation, real-time passengers’ information about timetables, disruptions, connecting services, additional service information etc. are mentioned, as well as compatibility with assistive devices, which has to be guaranteed (Section V).

• As for banking services, the Parliament has taken on board the approach proposed by EDF to ensure that the information about these services is understandable and does not exceed an upper intermediate level of complexity. Besides, key aspects of these services such as

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electronic identification, security and payment methods have been included (Section VI). Nevertheless, there are some deteriorations in this section as well (see below).

• Regarding e-books, the Parliament has also introduced accessibility requirements that will ensure that the e-book is accessible and navigable, including by using text-to-speech technologies, for instance (Section VII).

• The Parliament has improved the section on e-commerce by adding mobile applications, as well as key aspects of these services such as electronic identification, security and payment methods (Section VIII).

• A new section with accessibility requirements on accommodation services has been introduced. EDF very much welcomes this section but calls for clarification because in the amendment to Article 3 introduced by the Parliament, accessibility requirements for accommodation services are linked with the requirements for transport and not to this new section (Section VIIIa (new)).

Deteriorations:

• In Section I on computers and operating systems, the whole Part 2 establishing the accessibility requirements for the user interface and functionalities has been removed, because of the new functional performance criteria introduced by the Parliament in a new Part C. However, there is no link between the requirements for the products with this new Part C. This legal uncertainty must be solved during the upcoming negotiations with the Council, as for now it would mean that there will be requirements for the physical products themselves (packaging, instructions, information, etc.), but not on how the computer must function to be accessible, while other sections of the Annex do refer to this new Part C.

• In regards with the functional performance criteria introduced by the Parliament in a new Part C for all the sections, EDF would like to warn the EU institutions that these so-called requirements are aspirational and could lead to weak accessibility standards. For instance, in the requirement for “usage with limited vision”, aspects that should be taken into account such as flexible contrast, brightness or magnification are just examples, instead of an intrinsic part of the requirement. Despite this, EDF is glad that further sector-specific accessibility requirements have also been added for other sections (see above).

• One of the most damaging proposals from the Parliament has been to remove practically all requirements for audiovisual services, reducing them to only websites and mobile apps. This approach, apart from excluding Electronic Programming Guides and TV-based apps, do not cover how to make the audiovisual content itself accessible, and consequently no requirements on how to achieve media accessibility have been set out. These missing accessibility requirements could have laid down which access services to media are needed and how they should be provided. By access services we mean subtitles for the deaf and hard of hearing, audio description, spoken subtitles or sign language interpretation. The Parliament has missed an opportunity to harmonise a minimum level of quality in media accessibility, which EDF very much regrets (Section IV. Point A. Point 1).

• Despite the support of the Parliament on adding specific requirements for each product, taking into account their differences, the Parliament has not followed this line for TVs, in which the specific accessibility requirements are proposed merely as examples. These “examples” are for the TVs to support, select and personalise media access services such as subtitles, audio description, spoken subtitles or sign language interpretation, and to be

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able to easily identify and activate those in the remote control as required in the US. EDF calls on the EU decision-makers to maintain a consistent approach to these kind of accessibility requirements and replace the examples by requirements as in the other sections (Section IV. Point B. Point 1).

• Regarding banking services, there are some inconsistencies that should be fixed during the negotiations with the Council with regards to Part D of this section, which covers products related to banking services, i.e. self-service terminals, ATMs and payment terminals (included by the Parliament). This Part D is not aligned with Section II of the Annex anymore which is more complete in terms of accessibility requirements (see above), and covers the same set of products (Section VI).

• Like on section I on computers, the Parliament has removed the accessibility requirements for the design and functionalities of e-book readers, most probably with the aim of linking this section with the functional performance criteria introduced in Section I on computers (see above). However, there is no link between the requirements for the products themselves (instructions, information, packaging…) with this new Part C that the Parliament aims at applying to all sections. Such inconsistency should be fixed during the upcoming negotiations (Section VII. Part B. Point 1). Additionally, given that the Parliament has added support services throughout the relevant sections, it would also be important to add these in this section too.

• The accessibility requirements for other Union Acts (i.e. public procurement, European Structural Funds and the Trans-European Transport Networks (TEN-T)) have been reduced by the Parliament by removing sub-requirements such as, for example, “the information shall be available in different ways and via more than one sensory channel”. This means that this section will remain even more vague than in the Commission proposal (Section IX).

Contact

Marie Denninghaus – Transport and Mobility officer – marie.denninghaus@edf-feph.org Alejandro Moledo – New Technologies and Innovation officer – alejandro.moledo@edf-feph.org