EN Official Journal of the European Union C 303/103

Opinion of the European Economic and Social Committee on the proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services

[COM(2015) 615 final — 2015/0278 (COD)]

(2016/C 303/14)

Rapporteur:

Ask Løvbjerg ABILDGAARD

On 13 January 2016, the Council decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the:

Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services

[COM(2015) 615 final — 2015/0278 (COD)].

The Section for Employment, Social affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 12 May 2016.

At its 517th plenary session, held on 25 and 26 May 2016 (meeting of 25 May 2016), the European Economic and Social Committee adopted the following opinion by 152 votes with 1 abstention.

1. Conclusions and recommendations

1.1 The EESC warmly welcomes the proposal from the European Commission for a European Accessibility Act.

1.2 The EESC finds that the proposal for a European Accessibility Act is a good example of EU legislation aimed at making the Internal Market able to serve both citizens and companies.

1.3 Based on market surveillance and analyses of barriers of an EU-wide nature related to accessibility for persons with functional limitations, the EESC proposes a gradual expansion of the scope of the proposed directive after evaluation of the implementation of this proposed directive and in consultation with the stakeholder, in order to cover payment terminals, hospitality services, insurance services, electronic magazines and newspapers as well as the physical premises and websites allowing access to products and services otherwise covered by the directive.

1.4 The EESC encourages all parties concerned to broaden the interpretation of the legal base of the proposal, Article 114 TFEU, in order to avoid a too narrow focus on existing market fragmentation related to accessibility requirements.

1.5 The EESC proposes including transport infrastructure and vehicles not otherwise covered by EU regulation regarding accessibility explicitly in the scope of the directive in order to avoid unintended regulatory gaps.

1.6 The EESC recommends that a specific provision be included in the text of the Directive stipulating that from the entry into effect of the Directive, its obligations are only to apply to new products or services. This will avoid losses incurred from investment in accessibility that has already taken place.

1.7 The EESC proposes the introduction of an EU-wide accessibility labelling scheme as a means of ensuring that persons living with functional limitations are able to find reliable and easily available information about the accessibility of products and services.

1.8 The EESC recommends that the directive provide for strong and well-equipped enforcement bodies capable of cooperating across Member States with a view to the creation of a level playing field for economic operators regarding accessibility requirements.

1.9 The EESC underlines the importance of active market surveillance in order to avoid compliance with the European Accessibility Act by all relevant parties depending too heavily on individual complaints from consumers living with functional limitations.

1.10 The EESC recommends considering the inclusion of ‘understandable’ as a requirement in relation to all relevant products and services covered by the scope of the Directive.

2. Background to the proposal

2.1 Accessibility measures prevent or remove barriers to the use of mainstream products and services. It allows the perception, operation and understanding of those products and services by persons with functional limitations, including people with disabilities (1), on an equal basis with others.

2.2 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.

2.3 Taking into account demographic ageing, it is expected that in 2020 approximately 120 million persons in the European Union will have multiple and/or minor disabilities.

2.4 Improving the functioning of the internal market for accessible products and services, serves both the needs of these citizens/consumers and companies.

2.5 At present, economic operators are confronted with divergent, and often contradictory, national accessibility requirements preventing them from benefitting from the potential of the internal market.

2.6 Accessibility is an integral part of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) (2), to which the EU is a party together with 25 of its Member States (3).

2.7 The proposed Directive is also meant to support Member States in achieving their national commitments as well as their obligations under the UNCRPD regarding accessibility, and thereby to fulfil the obligations of the EU as party to the Convention.

2.8 As indicated above, differences between Member States as regards legislation, standards and guidelines on accessibility already exist to some extent and are very likely to increase as Member States develop new accessibility rules. This is partly a consequence of the entry into force of the UNCRPD for the EU and the majority of the Member States, as well as the general character of its provisions, which are open to different interpretations and practices when they are implemented at national level.

2.9 Consequently, authorities and all economic actors alike face uncertainties concerning the accessibility requirements for the potential cross-border sales of products and services, and concerning the applicable policy framework for accessibility. Moreover, there is a risk that additional uncertainties will be added in the future along with further implementation of the UNCRPD by Member States.

3. Gist of the proposal

3.1 The proposed Directive is meant to provide for a common EU definition and implementation framework for accessibility requirements of certain products and services.

3.2 The proposed Directive will harmonise accessibility requirements for a list of products and services: — computers and operating systems — ATMs; ticketing and check-in machines — smartphones — TV equipment related to digital television services — telephony services and related equipment — audiovisual media services (AVMS) and related equipment — air, bus, rail and waterborne passenger transport services — banking services — e-books — e-commerce.

3.3 Moreover, the proposal applies the same accessibility requirements to define and give content to the — already existing, but undefined — obligation of accessibility laid down in EU law, such as in the area of Public Procurement and the Structural and Investment Funds.

3.4 The proposal does not prescribe in detail how the obligation to render a product or service accessible by complying with the defined accessibility requirements has to be achieved in practice. If this approach leads to obstacles in the internal market, the proposal gives the Commission other options to provide guidance to Member States such as standardisation or implementing measures.

3.5 The proposal includes the possibility of using voluntary harmonised standards to provide presumption of conformity with the accessibility requirements. It also opens up the opportunity for the European Commission to issue technical specifications where inadequate European standardisation leads to obvious gaps in accessibility guidelines.

3.6 The proposal provides for light conformity assessment (self-declaration) and existing market surveillance mechanisms to assess compliance of products with accessibility requirements. It also provides a lighter procedure for checking compliance of services.

3.7 The proposal obliges Member States to set the application of all measures of the Directive, including the free circulation of products and services, at six years after the entry into force of the Directive.

4. General comments

4.1 The European Economic and Social Committee (EESC) warmly welcomes the proposal from the Commission as a legal instrument designed to make the internal market serve citizens and companies alike.

4.2 The proposal has significant potential for delivering increased transparency, clarity and consistency across the internal market for economic operators, including manufacturers and service providers, thereby lowering the price of accessible goods and services in the EU. In particular, the proposal has the potential for lowering the entry threshold for smaller economic operators who have accessibility solutions to offer outside their often narrow national markets.

4.3 In addition, the proposal has the potential for building up confidence among consumers with accessibility needs in cross-border purchases of goods and services, in particular as a consequence of the inclusion of e-commerce in the scope of the proposal.

4.4 The EESC is persuaded that the proposal for a Directive would be even better suited to serve its purpose if equipped with a more comprehensive scope and stronger enforcement mechanisms.

4.5 The EESC is recommending that the Commission reconsider its narrow interpretation of Article 114 TFEU. The interpretation underpinning the proposal significantly limits the scope of the Directive and does not take potential future barriers to the cross-border delivery of accessible goods and services sufficiently into account thereby threatening to curtail the inclusion of accessibility solutions in the long-term planning of companies operating in sectors and markets not encompassed by the scope of the proposal.

4.6 The proposed scope is limited to an extent where only parts of a service might be covered by the accessibility requirements of the Directive, making other parts inaccessible or, in some cases, making the service as a whole inaccessible to persons with functional limitations. An example would be banking services; the directive does not make it mandatory for banks to make their physical premises accessible to persons with functional limitations.

5. Specific comments

5.1 Based on market surveillance and analyses of barriers of an EU-wide nature related to accessibility for persons with functional limitations, the EESC is recommending considering the gradual inclusion, after evaluation of the implementation of this proposed directive and in consultation with the stakeholders, of the following elements in the scope of the Directive: — payment terminals, such as point of sale customer card payment systems; — hospitality services, including hotels; — insurance services, including private and public pension schemes; — electronic versions of newspapers and magazines; — the built environment connected to, or allowing access to, the products and services otherwise falling under the scope of the directive; — websites and mobile applications made available by economic operators otherwise falling under the scope of the directive.

5.2 In general, the EESC recommends that the interpretation of Article 114 TFEU is broadened to allow for a wider scope of the directive. In accordance with case law of the EUCJ, potential market fragmentation, the technical complexity of the regulation of a given market and consumer protection are all aspects which could also be taken into consideration when legislative acts are proposed based on Article 114 TFEU (4). Current market fragmentation is, hence, not the only criterion to be applied when the scope of the directive is to be determined.

5.3 The EESC proposes including transport infrastructure and vehicles not otherwise covered by EU regulation regarding accessibility explicitly in the scope of the Directive in order to avoid unintended regulatory gaps. A moderate expansion of the scope of the Directive of this nature would allow for the definition of requirements regarding the accessibility of relevant transport infrastructure, premises connected to transport infrastructure as well as vehicles, which are not covered by existing EU legislation, thereby avoiding the arbitrary distinction between different transport modes and transport infrastructure and facilitating accessibility of the whole transport chain for persons with functional limitations wishing to travel.

5.4 The EESC finds that it should be made clear that, from its entry into effect, the Directive only applies to new products and services, so as to avoid losses incurred through investment in accessibility that has already taken place. Given the short life span of information technology products and services, it would make sense to shorten the time frame of six years for entry into effect, at least for provisions applying to information and communication technology and the related services.

5.5 If parts of the built environment and physical infrastructure were to be included in the scope of the directive as recommended by the EESC, applying progressive implementation of the accessibility requirements could be considered, with products and services related to information and communication technology falling within a shorter time frame for implementation and the built environment falling within a longer one.

5.6 The EESC proposes that the directive explicitly provide for the creation of an EU-wide label for accessibility of products and services that could facilitate the implementation of the directive. CE-marking, as provided for in the proposal from the Commission, is not meant to be a way of signalling accessibility to consumers with functional limitations. The consumer cannot be expected to be familiar with the scope of the proposed directive and will, consequently, not be able to determine whether the CE-mark on a given product signals compliance with the European Accessibility Act or compliance with applicable EU legislation of a different nature. Hence, the use of CE-marking should be considered as an instrument which allows for marketing of products and services in compliance with applicable legislation, not as information to consumers about accessibility.

5.7 As the CE-marking scheme does not cover services, the EESC is of the opinion that there are additional reasons to create a new accessibility label for the EU as a consequence of the European Accessibility Act. A label covering the accessibility of services should, by nature, also include a certain level of awareness about accessibility among relevant staff.

5.8 The EESC would like to underline that the directive should provide for a safeguard against the lowering of existing accessibility standards applicable in Member States. The undermining of well-functioning existing accessibility labelling schemes should also be avoided. At the same time, it is essential that the directive is made use of in order to ensure that contradictory accessibility requirements for economic operators are avoided.

5.9 The EESC proposes that two additional definitions are included in the directive: — a definition of service provider, in order to avoid any possible misunderstanding related to the fact that some service providers covered by the proposal in question are not falling under the scope of other pieces of EU legislation dealing with the provision of services; — a definition of website, in order to avoid any possible misunderstanding related to the provision of certain functionalities on a given website through the use of third party sites. All websites, and functionalities thereof, related to the products and services falling under the scope of the directive should be explicitly covered by means of such a definition.

5.10 The EESC finds it important that particular attention is paid to the application of the proposed provisions regarding fundamental alterations and disproportionate burden with a view to avoiding that exemptions from the general obligations of the directive are applied in an arbitrary manner. The EESC recognises the need for the assessment of the need for fundamental alterations and the application of the concept of disproportionate burden on a case by case basis. It is suggested that representatives of organised civil society, including social partners, and in particular representatives of organisations of persons with disabilities, are involved in the application of the concepts of fundamental alteration and disproportionate burden in connection with the market surveillance otherwise envisaged in the directive.

5.11 The EESC proposes that the provisions regarding enforcement of the directive are strengthened in the text of the proposal. It is essential that enforcement bodies help to create a level playing field for economic operators across the EU in order to achieve the directive's objective, namely the free circulation of accessible products and services in the internal market. For this reason, an enforcement body in one Member State needs to be obliged to cooperate with enforcement bodies in other Member States. Furthermore, enforcement bodies should be equipped with sufficient analytical capacity and technical expertise. This would also allow enforcement bodies to provide all relevant stakeholders with guidance regarding the correct application of the accessibility requirements of the proposed directive.

5.12 The EESC underlines the importance of active market surveillance in order to avoid effective and transparent application of the proposed directive depending too heavily on individual complaints. An approach to market surveillance based on individual complaints implies a significant risk of arbitrary application of the directive and potentially also different conditions for economic operators across Member States, a situation which the directive is designed to avoid.

5.13 The EESC finds it positive that annex 1 to the proposal for a directive outlining the applicable functional accessibility requirements also includes ‘understandable’ as a criterion aimed at facilitating access by persons with intellectual disabilities, as well as the public at large. However, the cases in which ‘understandable’ has been selected as a relevant functional requirement appear rather arbitrary. The EESC recommends the Commission to consider the inclusion of ‘understandable’ as a requirement in relation to all relevant products and services covered by the scope of the directive and its annexes.

Brussels, 25 May 2016. The President of the European Economic and Social Committee Georges DASSIS

(1) According to the United Nations Convention on the Rights of Persons with Disabilities, persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

(2) United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

(3) While all the EU Member States have signed the UN CRPD, at present, Finland, Ireland and the Netherlands are in the process of ratifying the Convention.

(4) Case C-217/04, UK v. European Parliament and Council, 2 May 2006.