• Use of the European Accessibility Act to support other legal acts where accessibility is used but not defined.

This report on the implementation of the Directive would also carry out an evaluation of its impact. This evaluation would include an assessment of:

Five years after the entry into application of the Directive, and thereafter every five years, the Commission will publish a report on its implementation. This report would be partly based on the information gathered by the Commission from Member States, as well as economic stakeholders, social partners and relevant non-governmental organisations, including organisations of persons with disabilities.

Concerning the monitoring of the implementation of the Directive and of the background situation, the Commission will consider the following actions: (a) address issues relating to different aspects of the Directive (including changes in the market structure; changes in the relevance of the goods and services for accessibility and the availability of accessible goods and services in the market) in meetings with Member States; (b) meet with a group of experts for mutual learning and exchange of best practices on the implementation process; (c) cooperate with industry umbrella organisations; and (d) consult consumer’s and disabled people’s organisations.

• Number of complaints on goods and services because they do not comply with accessibility requirements;

A number of key indicators to monitor the impacts of this proposal have been identified aiming at addressing the general and specific objectives of this action. The availability of sources of data to populate the indicators has been considered also as one of the criteria for selection of indicators:

Therefore, priority would be given to the control of national transposition of the accessibility requirements provided for by the Directive, as well as to the clear and explicit inclusion in the national law of rules transposing the free movement clause of the Directive. While this exercise would necessarily cover all Member States equally, the infringement analysis should be particularly careful regarding Member States with less experience in accessibility matters.

Given the flexibility inherent in this form of EU legal instrument, in order to avoid the risk that the initiative results in little harmonisation, in the infringement procedures the Commission would concentrate on verifying that the main objective of the Directive, the free movement of goods and services in the internal market, is ensured.

Regarding infringement procedures, it should be noted that while the Recommendation of option 2 will only have to be transposed by those Member States that decide to apply it, all Member States would have to transpose the Directive. This is the case both in options 3 and 4. In option 3, the Directive would apply to all Member States regarding the rules on accessibility in public procurement and the free movement clause providing that all goods and services that fulfil the accessibility requirements laid down in the Directive have to be accepted in the market of other Member States. In option 4, the Directive would also apply to all Member States regarding the obligations of economic operators to ensure the accessibility of goods and services.

Thirdly, once the deadline for the transposition has expired, the Commission would analyse how Member States have transposed the Directive into their national legal orders and consider whether infringement procedures against them are necessary.

In particular, in order to ensure smooth implementation of the duties imposed on economic operators, and to address potential risks linked to this element of the proposed Directive, the Commission will consider the following actions: (a) organise meetings with businesses representatives in order to promote the benefits that the new accessibility requirements could have on business reputation and turnover; (b) provide guidance on the implementation of the relevant rules on duties of economic operators; and (c) promote mutual learning and exchange of best practices between Member States on the implementation of the relevant provisions by exchanging information in the meetings with Member States on the implementation process.

Secondly, in order to ensure the smooth transposition of the Directive in all Member States within the deadline provided, the Commission will consider actions such as (a) holding meetings with Member States to monitor the implementation process; (b) focusing on problems emerging during the preparation of the national measures; (c) spreading best practices amongst all Member States.

First, as soon as possible after the adoption of the proposal, in order to guide Member States, it would (a) provide a contact point for Member States to facilitate the dissemination of information regarding the proposed legislation (e.g. a functional mailbox) and (b) update DG Employment’s website with relevant information on the new Directive.

Concerning the transposition of an EU Directive, in order to ensure that it would be transposed and implemented in an appropriate manner, the Commission would put in place a series of actions.

In case of any policy option based on a legally binding measure at EU level (options 3 & 4), in addition to the reporting on the transposition, Member States shall monitor the conformity of goods and services concerned with the accessibility requirements regularly via market surveillance mechanisms. Member States are free to design their methodologies but exchange of information is expected.

In any case, as indicated in the section explaining the impact of the correction factor, for an individual Member State it will in general be less costly to adapt existing national legislation to EU rules than to introduce those rules from scratch. Similarly, for industry already producing goods or delivering services according to a particular national rule, it would be cheaper to make their newly produced or delivered goods and services in conformity with EU accessibility requirements than it would be for those industries that deliver non-accessible goods and services to have their new products in conformity with those accessibility EU rules.

However, it is plausible to assume that, after 2020, more Member States than those assumed in the baseline scenario (2020) would have voluntarily introduced accessibility legislation to comply with the UN Convention. Meaning, that there will be a future point in time when the costs foreseen for the option 4 would become savings. The increase in Member States' accessibility rules will completely change the cost benefit balance. For example if it is assumed that every year one additional Member State will adopt accessibility legislation, the above mentioned negative figures become savings respectively approximately four and five years after 2020.

It is important to note that calculations, both for cost and for savings at EU level, are highly dependent on the number of Member States that are assumed to have legislated in 2020. For both options 3 and 4 the higher the number of Member States that have national rules on accessibility, the higher the costs of fragmentation and the higher the savings made by removing that fragmentation. In other words, the costs savings in options 3 and 4 tend to converge when the number of Member States regulating on accessibility is high. In reverse, under option 4, if many Member States have not introduced legislation, the costs for making accessibility compulsory in those countries would be higher.

In conclusion, both options will address the policy objectives in terms of removing and preventing the emergence of new barriers to the smooth functioning of the internal market. However, policy option 3 respects better the principles of subsidiarity and proportionality, while the choice of policy option 4 will depend on whether the increased cost would be justified by its wider social benefits and greater degree of effectiveness. Policy option 3 would give Member States a framework to facilitate their action, without unduly interfering in the national timetable for implementing the provisions of the UN Convention.

The administrative burden is also expected to be higher for policy option 4 than for policy option 3, as it will cover all Member States and therefore all firms in the relevant sectors, regardless of whether they wish to sell across borders.

Policy option 4 gives rise to fewer savings than policy option 3, as it would require all Member States to take action once the proposal becomes applicable. It would therefore be more intrusive on national intentions to implement the requirements of the UN Convention as it leaves limited margin for a gradual implementation. However, by harmonising legal provisions on accessibility for the selected goods and services it would be most effective in guaranteeing the smooth functioning of the internal market. By ensuring the availability of accessible goods and services throughout the EU, it would also have greater social benefits concerning the integration and participation of disabled and older people in society.

A comparison of the consequences of policy options 3 and 4 points out differences mainly on the degree of effectiveness, the related costs savings and their consistency with the principle of proportionality. By preventing the emergence of different national requirements for accessibility of the priority goods and services, policy option 3 generates greater savings for business compared to the baseline and is more proportionate regarding the objectives. It would remove existing fragmentation in the internal market and facilitate Member States’ implementation of their obligations under the UN Convention, by providing a common set of accessibility requirements. This common set of requirements would moreover prevent possible future fragmentation. At the same time, it would not affect the timing plans of Member States to implement the UN Convention and would not affect the way in which they choose to implement its provisions in relation to goods and services that are not covered by the proposal. It would give rise to a certain amount of additional administrative burden, but this is relatively minor compared to the costs that the options would help to avoid.

Policy options 3 and 4 will best address the main drivers of the problem and consequently would improve the functioning of the internal market for accessible goods and services. Both options will have positive impacts on fundamental rights. While policy option 2 would achieve the same impacts as policy option 3 if all the Member States that regulate accessibility were to implement the Recommendation, this outcome seems unlikely to occur in practice.

Out of the policy options considered, policy option 2 would insufficiently address the objectives; in particular, it would not eliminate fragmentation in the single market.

The impacts of the different policy options compared above lead to the assessment of the suitability of these options to achieve the general and the specific objectives indicated in the related section, as shown also in the table.

According to the results of the SME Panel, the extra costs related to accessibility are not significant for the majority of SMEs, there is confidence on the positive effects that would result from having common rules, and no differentiated treatment was requested. Their exclusion would have a counter-productive effect and would further contribute to maintaining the problem. This is also due to the impossibility of treating differently goods and services that should circulate freely in the single market, depending on which business produces/provides them. In any case, safeguard clauses, considering proportionality and avoiding fundamental alteration of the good or service, would be foreseen for all companies and lighter requirements for specific provisions, namely with regard to administrative requirements, will be considered for SMEs and more specifically for micro-enterprises whenever possible. When taking implementing measures, the effect on SMEs and micro-enterprises will be taken into account to ensure that they will not be negatively affected.

Annex 11 contains a specific assessment of the impacts on SMEs and micro-enterprises (“SME test”). Because of their size and limited resources, differences in national accessibility requirements are expected to cause disproportionate problems for SMEs. Thus, SMEs in particular would be expected to benefit from the elimination of this fragmentation through the creation of a single set of requirements, even more than larger economic operators. Therefore SMEs are included in the scope of application of the policy action under consideration. Potential benefits (cost savings) are expected to be higher than potential accessibility-related costs for all economic operators (noting that more than 90% of enterprises in the EU are in fact micros). Also, they would have their possibilities of cross-border trade facilitated.

These goods are traded on a B2B basis, meaning that there are no direct obligations to the manufacturer related to the information provision to the public. Therefore, the policy options are not expected to result in any administrative burden.

Under option 4, all companies producing the relevant good or service on the EU market would have to provide this information. This gives an upper bound for the cost of the administrative burden that would result from this proposal; under options 2 and 3 firms would only incur this cost if they wished to sell in those Member States that regulated the accessibility of the different goods and services (and under option 2, on the condition that those Member States implemented the Recommendation). The figures in the table below contain estimates for each of the policy options. It is important to note that for options 2 and 3 the number of companies are an approximation as the calculations assume that the share of the companies that would have to meet the information requirements equals the share of EU GDP of the Member States that implement the recommendation or directive, respectively. Based on these assumptions, the administrative burden is highest in option 4 followed by option 3 and then by option 2.

Under policy options 2, 3 and 4, firms will be obliged to provide information about the accessibility of the relevant goods and services. It is assumed that this is a task that firms will only have to perform once. This burden related to the cost of providing information on accessibility either to the customer or to the surveillance authorities. The drafting of information concerning the accessibility of the good / service is assumed to take one eight-hour working day. At an average wage per hour of €18 this gives an administrative burden of €144 per company and good and service. As shown in the table, for some particular goods and services, is estimated at €1 440. Depending on the likely burden, this corresponds to between one and ten working days.

This option scores the highest for effectiveness as it harmonises the accessibility requirements across the EU, but is also less efficient than the previous one. Effectiveness is high as Member States that currently do not regulate accessibility will have to do so after adoption. This, in turn, makes the option less efficient as it relies on additional efforts in Member States that currently do not legislate on accessibility. However, the impact on social groups is expected to be the highest as also Member States currently without accessibility obligations will have to introduce them. Guaranteeing access to goods and services for disabled people in the whole EU would allow them to have a strong involvement in society, to take part more actively in the public sphere and to fully exercise their rights. Enabling accessibility to disabled citizens would directly contribute to the Europe 2020 aim of improving education and employment as well as combating poverty and social exclusion. Environmental impacts remain limited. A detailed analysis of these impacts per good and service is included in Annex 7.

[1] Self-services terminals are included on their own as goods and also broken down in relation to their respective services (banking and passenger transport), meaning that the amounts are repeated in the table.

The percentages behind the savings figure indicate the maximum or minimum range of savings for the respective good/service when the sensitivity analysis as explained above is applied, i.e. when the value of the correction factor is changed. The figures in the last column depict the amount of savings of policy option 4 compared to the baseline scenario per good or service.

Under this option, uniform accessibility requirements would be introduced for each of the selected goods and services across the entire single market. As under option 3, removing divergent legislation in those Member States that regulate on accessibility would reduce business costs, as firms would have to meet only a single set of accessibility requirements and they would no longer incur costs researching and understanding different national laws. However, all Member States would now have to regulate the accessibility of the selected goods and services, and this would impose costs on firms in the Member States who are not expected to have accessibility requirements immediately. Nevertheless, under option 4 the total savings are estimated at about €9 billion, representing 45% of the cost of the baseline scenario. Under this option Member States and public authorities who have regulated on accessibility, similarly to option 3, are also not expected to experience significant additional costs. However, those Member States that have not regulated on accessibility would have to incur the costs of doing so following the time schedule of this initiative. Like in the previous option, some minor costs might be incurred in relation to reporting obligations and market surveillance.

The levels of effectiveness and efficiency in this option will be higher than in the previous option as Member States that have current legislation will have to follow EU rules removing the market fragmentation created by those existing rules and ensuring the free circulation of accessible goods and services in the EU. This will be reflected in a simplification of the obligations for industry. Member States and public authorities are not expected to experience significant additional costs other than those already deriving from the implementation of the accessibility provisions in the UN Convention, given the intended coherence between those and the essential accessibility requirements in this initiative. However, some minor costs might be incurred in relation to reporting obligations and market surveillance. Disabled and older people will benefit from harmonised accessibility requirements across the Member States which should lead to greater availability and choice of accessible allowing for example to compare goods and services. Nevertheless, given that those benefits would be limited to those countries where accessibility requirements are in place, it would not result in a total elimination of barriers for disabled and older consumers. The social positive impact is significant but limited. The environmental impact will also be similar as for policy option 2, but the scale of the impacts is likely to be larger in line with the expected increased number of countries concerned. A detailed analysis of these impacts per good and service is included in Annex 7.

[1] Self-services terminals are included on their own as goods and also broken down in relation to their respective services (banking and passenger transport), meaning that the amounts are repeated in the table.

The total savings are estimated at about €10 billion, or 50% of the cost of the baseline scenario.

The percentages behind the savings figure indicate the maximum or minimum range of savings for the respective good/service when the sensitivity analysis as explained above is applied, i.e. when the value of the correction factor is changed. The figures in the last column depict the amount of savings of policy option 3 compared to the baseline scenario per good or service.

Compared to the baseline, the costs of fragmentation due to different national requirements are eliminated completely in those Member States that regulate on accessibility. Firms would face costs of making goods and services accessible in those Member States. Therefore the figures below show what are the expected savings from the cost calculated for the baseline scenario.

Under option 3, Member States that have regulated or once they regulate on accessibility for one or more of the selected goods and services would be required to adopt common European common requirements. Firms would have to meet only a single set of accessibility requirements in those Member States and they would no longer incur costs researching and understanding different national laws. Compliant goods and services would circulate freely in all Member States. The decision on when to regulate on accessibility is left to the discretion of Member States. It is assumed that Member States would gradually do so to comply with their obligations under the UN Convention.

5.4.Option 3:EU Directive defining common accessibility requirements for the selected goods and services - applicable to the Member States when they regulate on accessibility

In general, the score of this option shows that in terms of effectiveness and efficiency it has limitations on the capacity to achieve the policy objectives as not all Member States will adopt and follow the Recommendation. Consequently, only some fragmentation of the market would be removed and societal groups would only reap the benefits of the market to some extent. In this scenario, the possibility for disabled citizens to take up their place in society and fully exercise their rights is not satisfactorily and extensively guaranteed. Disabled and older people will benefit from improved access to goods and services in the limited number of countries that would adopt the recommendation. The slight variations of the scores provided to the different goods and services are linked to the current existent of divergent legislation and the likelihood that Member States will follow one set of rules. This option would not oblige Member States and public authorities to enter into any costs given the nature of the initiative. Environmental impacts are very small. In conclusion, this policy option is unlikely to have any major social and environmental impacts. A detailed analysis of these impacts per good and service is included in Annex 7.

[1] Self-services terminals are included on their own as goods and also broken down in relation to their respective services (banking and passenger transport), meaning that the amounts are repeated in the table.

The percentages behind the savings figure indicate the maximum or minimum range of savings for the respective good/service when the sensitivity analysis as explained above is applied, i.e. when the value of the correction factor is changed. The figures in the last column depict the amount of savings of policy option 2 compared to the baseline scenario per good or service.

The total savings estimated are about €4 billion, or 20 % of the cost of the baseline scenario. Under option 2, it is likely that only some Member States would implement the Recommendation. In this situation, firms would face the costs of understanding and meeting different accessibility requirements for each of the Member States with national legislation in place that did not implement the Recommendation, plus the cost of understanding and meeting the requirements of the Recommendation in the Member States that did implement it.

In this case, some fragmentation remains as the Recommendation would not be binding. The size of the market covered by accessibility requirements is unchanged, but firms have to meet fewer differing standards. The number of differing national requirements, specific for each case, is replaced by a single EU requirement in those Member States applying the Recommendation. Thus the number of different requirements is now the number of Member States that are assumed to have accessibility requirements in place minus the number of these that adopt the EU recommendation +1 (to account for the fact that you have to make the good accessible in your own state as well). Note that this adjustment will also have the effect of lowering the calculated costs of understanding the different national rules. Therefore, the savings are equal to the costs of making goods and services accessible on the markets covered by requirements times the reduction in the number of different requirements, adjusted by a correction factor to take into account the overlap among the requirements.

Figures under this option represent savings compared to the baseline scenario resulting from the introduction of an EU Recommendation that will remove some of the divergent legislation in the Member States.

[1] Self-services terminals are included on their own as goods and also broken down in relation to their respective services (banking and passenger transport), meaning that the amounts are repeated in the table.

The percentages behind the cost figures indicate the maximum or minimum range of costs for the respective good/service when the sensitivity analysis as explained above is applied, i.e. when the value of the correction factor is changed.

As explained above in point 3.5 there are already several instruments of secondary EU law which either (a) include specific rules to facilitate the access to goods and services by these persons within a general legal framework dealing with a certain technical area, or (b) address the situation of persons with disabilities on a specific area but focusing on an assistive approach, or require accessibility without defining its meaning and content. As mentioned above, the advantage of having a horizontal EU legal instrument on accessibility is that it ensures the coherence and consistency across different sectors and legal instruments – notably in the obligations placed on the supply and the demand side (to buy accessible according to the public procurement directives and produce and provide accessible goods and services).

As explained above, the calculations of costs are based on a conservative estimate of the number of Member States expected to have regulated by 2020. In the absence of EU action, these costs will continue to increase every year as Member States will develop accessibility legislation to implement the UN Convention. It is estimated that, the hypothetical case of waiting until all Member States would have developed divergent legislation for the goods and services covered would raise significantly the cost figure to more than €30 billion annually. Industry will be confronted with an even more fragmented market as time passes. Industry representatives have expressed their concerns about the increase of national legislation and indicated their preference for substituting them by EU rules.

Figures in this baseline scenario represent the associated costs for business of producing accessible products in a fragmented internal market in 2020 in the Member States. These costs provide also a rough estimate of the implementation of the obligations under the Convention by Member States in an uncoordinated manner. The total annual costs are estimated to be about €20 billion. The cost of the baseline scenario is the sum of the cost to ensure accessibility of the relevant goods/services sold across borders in 2020 and the costs of understanding different accessibility requirements across borders in 2020. In this option, the overall costs to business for each good or service are influenced by the additional production costs incurred in making the good or service accessible; the number of Member States that are assumed to have legislated for accessibility of the selected good or service by 2020; the extent to which these national requirements differ from one another, and the costs that firms incur in understanding these differences; the overall size of the market affected by these different requirements; and the share of intra-EU trade in the good or service (if firms produce only for their “home” market, the existence of differing national standards does not give rise to additional costs for them). These elements are specific to each good and service and costs are therefore estimated separately for each one. Because of the uncertainty inherent in projecting not only market developments, but also Member States’ legislative intentions these estimates should be regarded as indicators of the likely scale of costs that businesses will incur, rather than precise forecasts.

For details regarding the methodology, data sources and assumptions made please refer to annex 7 and the Deloitte study, which also includes a series of calculations showing how varying the different assumptions influences the cost estimates.

Other than the economic impacts, impacts are rated on a scale from 0 to 5 in terms of the expected changes compared to the baseline. Thus, Policy option 1 (Baseline scenario) has been rated 0. A rating of 0 for the other policy options implies that they would not result in any major change compared to the status quo. For economic impacts the figures represent savings from the baseline scenario. A scale that allows also negative values has been used to reflect those cases of the policy options where instead of savings, additional costs are foreseen.

Each of the retained policy options has been assessed for its effectiveness and efficiency in meeting the policy objectives, as well as in relation to its economic, social and environmental impacts. The assessment of effectiveness and efficiency takes account of how the option would affect cross-border trade and competition among industry in the area of selected goods and services as well as in the area of public procurement. Economic impacts are reported in terms of the costs to businesses of meeting different national accessibility requirements in the baseline scenario, and of the changes to those costs under each of the policy options. Social impacts mostly relate to effects on disabled and elderly consumers. Impacts on fundamental rights are assessed as part of all assessment criteria. Environmental impacts, other than those related to greater trade and transport of goods across borders, are assessed as being minimal.

As with all projections, the results of these calculations depend on the assumptions on which they are based. Accordingly, the estimates presented below for each policy option should be understood as indications of the possible scale of the effects that could be expected to be observed under each of the policy options, rather than as precise forecasts. The relative ranking of the options that emerges from these calculations is consistent with the ranking based on a qualitative assessment.

Finally, the expected impacts (costs and benefits) of the three mentioned policy options have been assessed compared to the Baseline Scenario in monetary terms in each of the tables below.

For the differences in methodology concerning the cases where the bottom-up approach is applied please refer to the detailed methodology in Annex 7.

The costs that are estimated as part of Step 2 reflect a product-related cost element, i.e. costs for the physical adaptation of the product or various production processes in order to comply with national requirements. An additional assumed share of [Cost to ensure accessibility of good/service sold across borders] is added in this step 3: extra costs take into account the organisational costs for identifying, reading and analysing national accessibility requirements in other countries.

As the correction factor is a key variable both in determining the costs of fragmentation in the baseline scenario, and of the relative benefits of reducing or eliminating fragmentation in the different policy options, a sensitivity analysis has been performed to assess how changing the correction factor affects the relative reduction in costs of fragmentation that is expected to result from each of the policy options. The table below shows the values of the correction factor for each good and service determined according to expert judgment, and the values used for the sensitivity analysis.

In the same vein, especially for Member States which already have some legislation in place containing accessibility requirements, the costs of making their goods and services accessible according to one common set of rules, is considerably less also in comparison to the initial one-off and on-going costs of making the good accessible, since the correction factor numerically depicts the fact that the added accessibility costs will almost always constitute only a fraction of these initial costs.

The costs of accessibility for Member States which already have some requirements in place, will only constitute a share of the costs, linked to the correction factor, which have to be incurred by those states which will not have put respective legislation in place at all or only to a lesser extent. This is the case since it is unlikely that the accessibility requirements already put in place in a Member State would be totally different from the ones required by this EU initiative.

a [correction factor], to account for the degree of similarity or difference between national accessibility requirements, ranging from 0% for identical requirements, to 100% for totally different national accessibility requirements

the [respective share of EU GDP these countries account for] ( to value the cost figures for the size of the market at risk of fragmentation)

the [number of countries that are expected to have legislation in place by 2020] (in order to take account of the fact that EU Member States’ legislation may impose different requirements on goods and services and, hence, costs are incurred several times by manufacturers and providers)

the [(assumed) proportion of turnover stemming from cross-border trade] (different requirements are only relevant for goods/services that are traded across borders)

Now, in order to calculate costs to ensure the accessibility of a good or service when sold across borders the [total costs of accessibility] is multiplied by

"One-off" development costs (= capital expenditure (CAPEX)) and current ongoing costs (operational expenses (OPEX)) are summed up in order to arrive at the current total cost of accessibility (based on one set of requirements in the EU). For each good and service, these are calculated by assuming that they are a share of overall market turnover multiplied by an estimated fraction of development costs and an assumed share of accessibility costs.

Step 1: Estimate the total cost of accessibility assuming that one set of requirements is applied to the EU

Based on a set of basic assumptions, including market volume, proportion of cross-border trade and shares of development costs an assessment of the current market situation (2011) in monetary terms has been calculated. “Top-down” and “bottom-up” approaches have been applied. In the top-down approach (applied to the cases of Computers and operating systems, Terminal manufacturing, DTT equipment, Broadcasting services, Self-service terminals as well as Public procurement), estimates of the costs of accessibility are derived from high-level market turnover figures and the shares of accessibility costs, while the bottom-up approach (applied in the cases of websites, architect services, eBooks, and Telecom services) starts from data on the cost of accessibility for an individual good or service. It varies slightly from case to case depending on the detail of the data available for that case.

Finally, it may be noted that the EU legally binding instrument would be in line with legislation of the most advanced countries and EU trade partners, including the United States. US legislation, as mentioned above in section 3.6, covers a wide range of goods and services and includes obligations for manufactures and services providers and for public authorities to purchase accessible. Other countries outside the EU with relevant accessibility legislation are Canada and Australia. In Canada, the province of Ontario has recently developed very comprehensive accessibility legislation in terms of scope and requirements.

As shown by the Impact assessment accompanying the Commission proposal for a Regulation on European standardisation, the mere existence of standards is trade-enhancing because of their cost-decreasing effect and the reduction of information asymmetries between the supply and the demand sides, especially in the case of cross-border transactions. Several econometric studies have established a clear connection at a macroeconomic level between standardisation in the economy, productivity growth, trade and overall economic growth. Standards have an important role to play in supporting the competitiveness of European businesses in the global market. Referencing of standards in public procurement can be an important means of fostering innovation while providing public authorities with the tools needed to fulfil their tasks.

As mentioned above, in line with internal market legislation, a legally binding instrument will contain a clause guaranteeing that all goods and services fulfilling essential accessibility requirements set up by the legally binding instrument will be accepted on the market of other Member States, independently of whether the host Member States imposes its own accessibility requirements or not. Industry Stakeholders also highlighted the importance of respecting the principle of free movement of goods inside the EU.

Conformity assessment procedures will be established in line with existing practices. Proportionality considerations point out to the selection for economic operators of the "self-declaration" that the products satisfy the legal requirements as most suitable conformity assessment procedure for the type of essential requirements that relate to accessibility. In fact this module also represents a practical approach for the use of the "proportionality clause" included in the legal act, since the economic operators would also declare whether the good or service concerned satisfies the essential accessibility requirements, after taking into account that clause.

The implementation of the legally binding instrument would also rely on the use of implementing acts, which would be adopted when necessary to ensure uniform conditions for implementation of certain provisions of the instrument, for example in the absence of harmonised standards. These implementing acts would be adopted in accordance with the so-called “examination procedure” referred to in Article 5 of Regulation 182/2011. For these purposes, the Commission would be assisted by a committee within the meaning of that Regulation. Whenever the implementing acts would be likely to have significant impacts, they would involve the preparation of an Impact Assessment.

Regarding the timing for the implementation of the EU initiative, a gradual approach would be adopted. There would be different deadlines for the implementation of the different aspects or set of rules of the legal instrument. Shorter deadlines could be provided for certain aspects of the instrument, such as rules on public procurement, where there is more experience with the related procedures and the relevant rules are already in force, in any case. As far as the obligations of economic operators are concerned, the deadlines could depend on the life cycle of the relevant goods and services. For example, there would be longer transition periods regarding the built environment which is necessary for the provision of a service and shorter ones for goods with a short life cycle.

A proportionality clause would be provided in order to avoid that economic operators are subject to fundamentally altering their good or service or to a disproportionate burden. The EU initiative would establish that the compliance with accessibility requirements could not impose a disproportionate burden for the economic operators concerned. A set of criteria would be established to determine in practice the meaning of the concept of disproportionate burden. The first entity to examine whether or not there is a disproportionate burden according to the rules transposing the directive will be the economic operator concerned. The latter will make such an examination notably when performing its “internal production control”, which is the type of conformity assessment procedure to be used in the directive (see below footnote 113) and the lightest administrative requirement. Such assessment will be then potentially subject to the control of administrative authorities and of the courts, as in other cases of application of internal market legislation.

Different stakeholders support the combination of these instruments, meaning the adoption of common European standards and legislation on accessibility as this combination would allow for more competitiveness in a broader market and a greater efficiency in resource use. Stakeholders have advised that legal requirements and voluntary standards should be developed with the involvement of experts, practitioners and people with disabilities themselves. Regulation (EU) No 1025/2012 guarantees directly that European standardisation process is inclusive and covers also participation of societal stakeholders.

Compliance with a “harmonised standard”, the reference of which has been published in the Official Journal, provides presumption of conformity with essential requirements of the Directive covered by the standard. However, use of harmonised standards is still voluntary and industry may use any other technical solution to demonstrate that its good or service meets the essential requirements. Harmonised standards are a kind of benchmark but other solutions that fulfil the essential requirements are acceptable. Member States that currently have legislation in line with the UN Convention that would cover issues under the scope of the legal act are allowed to maintain it as long as it fulfils the essential accessibility requirements of the directive and does not contradict them.

The directive would affect existing laws, regulations and administrative provisions in Member States in a two-fold manner. First, Member States that do not yet have legislation on accessibility would have to comply with the requirements set out in the directive when they would adopt their legislation – according to the transposition schedule. Secondly, Member States that have already adopted legislation on accessibility would – again according to the transposition schedule provided in the directive – have to verify that their existing legislation complies with the directive. They would have to change it only if necessary. In addition all Member States will have to ensure the free movement of goods and services that conform to those accessibility requirements.

The directive provides a way to attain such an objective. The directive, having a more limited scope, can detail easier the accessibility requirements to be respected.

The Convention focuses on establishing the general objective to be attained: accessibility. In addition, it sets out in a very general manner the material scope of the application of such objective. The scope of the accessibility obligations of the Convention is defined in its Article 9(1) as including “physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas”.

The requirements of the directive would aim to facilitate the implementation of the UN Convention by Member States and the EU.

Moreover, it should be noted that not all of the abovementioned aspects would concern all goods and services covered by the directive, but the essential requirements would apply to them only when relevant for their accessibility and when EU action would be most appropriate.

Regarding the accessibility of services, the essential requirements would concern the information provided about the functioning of the service and about its accessibility characteristics and facilities; the on-line related applications; the information to facilitate complementarities with assistive services; specific aspects of the built environment where the service is provided; and the products used to provide a service.

As far as design of goods are concerned, the requirements would potentially relate to the information on the use of the good provided in the good itself; the packaging of the good including the information provided in it; or the good’s instructions for use. As far as the functionality of goods is concerned, the requirements could potentially include aspects related to the user interface of the good; the functionality of the good itself and the interfacing of the good with assistive devices.

Regarding the accessibility of the goods, the essential requirements would concern certain general aspects of their design, as well as some general aspects of their functionality.

This means that the general accessibility requirements (“essential requirements”) will be defined at EU level aiming to be in line with the provisions of the UN Convention. Those essential requirements will be composed of two elements: (i) requirements to make the specific good or service accessible and (ii) requirements to provide accessible information related to the functionality or use of the specific good or service.

In line with these approaches, legislative harmonisation is limited to “essential requirements” that goods and services in the market must meet if they are to benefit from free movement within the EU.

presume conformity with voluntary harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2015 by the European standardisation organisations and that will contain the more detailed technical specifications;

A legally binding measure should also follow the new regulatory Framework (more often called New Legislative Framework – NLF), which is a general measure of the internal market in order to reinforce its application and enforcement. By following the NLF, a legally binding measure would:

Industry stakeholders see the advantages of harmonising accessibility requirements in public procurement as it will drive market provision of suitable solutions.

In line with the Commission Communication “Towards a Single Market Act” and the Communication “A strategic vision for European standards: Moving forward to enhance and accelerate the sustainable growth of the European economy by 2020”, legally binding measures aiming to improve the proper functioning of the internal market of specific accessible goods and services (also in the area of public procurement) will follow the “New Approach” to legislation, designed to prevent the creation of technical barriers to trade. They will also make use of the "Global Approach" using light models for conformity assessment.

Concerning the form of the EU intervention, a regulatory intervention leaving a certain margin of discretion to the Member States as to its implementation appears to be more efficient to tackle the actual and upcoming problems of the functioning of the internal market. A directive, in particular, would ensure an unobstructed movement of accessible goods and services without going beyond what is necessary in order to achieve that objective. The choice of a 'directive is consistent with the objective of reducing market fragmentation. A directive is a legal instrument which has an inherent flexibility. However, the Directive would not only oblige Member State to regulate on accessibility requirements to their own economic operators. It would also contain a free movement clause. Under the Directive, Member States would have to ensure that they don’t obstruct the free circulation of accessible goods and services coming from other Member States in case they comply with the accessibility requirements of the Directive. Therefore, the free movement of goods and services can be attained with an instrument that is flexible and respects the principle of subsidiarity and proportionality. A directive would also ensure the respect of the freedom to conduct a business and property rights enshrined in the Charter while having a positive impact on the rights of persons with disabilities as mentioned in its Article 26.

It results from the preliminary screening that the scope of an EU initiative should focus on the selected priority areas, where obstacles to the functioning of the internal market were evidenced and where an effective prevention of new barriers would be maximised. Industry stakeholders agree that a coherent and clear initiative bringing together what has already been developed on accessibility in the Member States and in EU wide standards would be well advised.

The difference between option 4 and 3 is that option 4 requires those Member States that have not yet regulated on accessibility to introduce new legislation on accessibility in accordance with the EU rules proposed, without allowing for a gradual implementation. It simultaneously harmonises accessibility rules across all Member States.

Option 4: EU Directive defining common accessibility requirements for the selected goods and services, as well as in the area of public procurement - immediately applicable to all Member States.

The Directive would identify essential accessibility requirements applicable to a specific list of goods and services. These requirements could be further specified by voluntary European harmonised standards and implementing measures. The same accessibility requirements would also apply to EU legislation that requires the accessibility of goods and services, without defining how it is achieved. This is for instance the case in public procurement, where there is a general obligation in the revised public procurement Directives to buy accessible goods and services. The scope of the accessibility obligations under the section related to public procurement is defined by the scope of the public procurement Directives and they only apply above the thresholds identified therein. Nevertheless, some of the goods and services identified for obligations to manufacturers and services providers are in the scope of these Directives. Similarly, these accessibility requirements would also apply under the use of European Structural and Investment Funds.

Under this option, Member States are not obliged to regulate accessibility but when they do or have already done so, they have to follow EU rules in order to ensure coherence in the internal market and avoid the risks that different national standards would impose unnecessary costs on business. All Member States have to ensure the free circulation of accessible goods and services even when they do not regulate accessibility.

Option 3: EU Directive defining common accessibility requirements for the selected goods and services as well as in the area of public procurement - applicable to the Member States when they regulate on accessibility.

Option 2: EU Recommendation defining common accessibility requirements for the selected goods and services, as well as in the area of public procurement. This would have the same scope as the Directive described in option 3, but would not have binding force.

This projected development of divergent accessibility legislation until 2020 in the Member States is based on existing indications in the EU and the commitments under the UN Convention.

Option 1: No further action at EU level (baseline scenario). The baseline has been described in detail for each good and service in the problem definition above, setting out the projected accessibility legislative situation in the Member States by 2020 (given that it will be the end of the action plan of the European Disability Strategy 2010-2020 and a major turning point for the achievement of European policy goals set in the Europe 2020 Strategy).

Four policy options have been retained for further analysis. All these options have some common elements which are described in detail below. Here the essence of their difference is summarised:

A Regulation would impose uniform accessibility requirements in all Member States. It was discarded because it was considered disproportionate and less aligned with the principle of subsidiarity. It would create unnecessary burden for those Member States who already have accessibility requirements in line with what would be imposed at EU level but yet having different form or method. A Regulation would also require including detailed technical requirements and that would be too rigid to cater for the flexibility needed for innovation purposes. The referred flexibility was also advised by some industry stakeholders who highlighted that it would be important that any regulatory approach drives innovation, supports interaction both horizontally and vertically across the supply chain and allows widening accessibility by improving the accessibility of specific products but also allows niche products and specialisation to occur to meet specific, complex needs.

This option is not considered effective to remove legislative fragmentation and the resulting internal market barriers. When Member States legislate on accessibility to fulfil their obligations under the UN Convention, there is no certainty that they will do so using voluntary European standards, most probably increasing divergence of accessibility legislation with a negative impact in the internal market. Furthermore Member States will not be obliged to ensure free circulation of accessible goods and services. This will increase legal uncertainty for industry. In summary, this option was considered clearly insufficient to guarantee the functioning of the internal market. In addition, this option is likely to be rejected by consumers as it will not represent a significant advance from the current situation and it will be insufficient to fulfil the legal obligations under the UN Convention. The "voluntary" nature of the option might be welcome by industry but it might also be criticised as it will not be able to remove or prevent fragmentation introduced by national rules that are indicated to be a problem in the various consultations.

European standards are "voluntary" by nature. The Member States have encoded their accessibility obligations in legislation and sometimes use national standards even when some international and European standards were available. Increasing the availability of European standards will only have an effect on the harmonisation of national competing standards (which also often are voluntary) but it will not affect existing compulsory provisions in law.

Voluntary European standardisation is already on-going and – once sufficient amount of accessibility standards are available - could support some approximation of national rules and standards and contribute to meeting the objectives of better functioning of the internal market. This option as a self-standing option was however discarded at an early stage because of its non-binding nature. As proven by on-going activities it is unrealistic to consider that it could overcome the internal market barriers that have been identified in relation to the selected goods and services and in the area of public procurement. Current standardisation work under standardisation requests M/420 and M/376 could not tackle on their own those challenges. The voluntary European standards under development in those requests will not remove current legislative divergences in the Member States. In addition, their development is a fairly lengthy process, which is taking on average 10 years between the Commission standardisation request and the publication of the European standard. Standardisation is mainly an industry driven exercise, meaning that societal and public needs are considered in standardisation mainly upon request to support public policy or legislation and usually when they support short-term market needs. Market needs for common European standards are rather weak as long as accessibility legislation remains under national competence. Voluntary standards alone are not enforceable and their possibility to bring consistency in a sector is often overruled by national legislation. Furthermore, accessibility standards at international level already exist for some time and could have been used by governments and industry as unique reference points to remove fragmentation. For example, despite the Commission’s efforts to "informally" harmonise web accessibility around the W3C guidelines, Member States have modified and adopted divergent versions under national rules.There is no indication showing that this pattern is changing hence it is considered that voluntary European standards alone are not sufficient or adequate to tackle the problems at stake. In addition, the US had "voluntary standards" in procurement for some years but it was the reinforcing of the related legislation in that area, making the accessibility standards compulsory, what significantly shifted the attention of industry towards accessibility.

Setting common accessibility requirements for particular goods and services through self-regulation by the industry is the least interventionist and least onerous option for economic operators. However, current practice shows that self-regulation by the industry is not capable of solving internal market problems because it lacks EU-wide scope and dimension. Furthermore voluntary procurement accessibility practices have been unable to remove differences and create healthy competition among economic operators across the EU. The European Commission has fostered industry voluntary steps to improve accessibility for example by supporting dialogues including with representative organisations of persons with disabilities and through policy developments. While some positive initiatives have been undertaken by industry, these efforts have been insufficient to tackle the problems identified particularly in terms of market fragmentation and responses. In particular in the area of ICT the Commission already indicated in 2005 that "It will include an evaluation of the outcome of the approaches proposed, following the principles of Better Regulation and, subject to full impact assessment, the Commission may consider additional measures, including new legislation if deemed necessary". After trying for some time, there is no indication that progress based only on industry self-regulation will achieve the general objectives or the specific objectives of lowering and preventing barriers and increasing competition in this area and in particular the operational objective of improving enforcement of accessibility requirements. The on-going work for developing European wide voluntary accessibility standards has been the result of the Commission’s standardisation requests to the European standardisation organisations, they have not been initiated by the industry, even if afterwards their development is led by it. Stakeholders from the consumers' side (namely disabled people organisations) support this view that industry alone has not progressed in this field at a rhythm that would meet consumers' needs, self-regulation has failed. Therefore, they claim that only legislative options would be viable to address the issue. EU legislative action is needed and would ensure a functioning market of accessible goods and services.

This option was considered to complement the recent Commission proposal regulating accessibility of public sector bodies’ websites. Defining accessibility requirements for all private sector websites would help to improve the functioning of the internal market. It would, however, go beyond what is necessary to meet these objectives, as it would cover not only those websites which are the most relevant from the accessibility viewpoint and give rise to obstacles in the internal market, but all websites, including those which are less relevant. Furthermore, it would not address other goods and services for which internal market problems have been identified and it would not be sufficient to address other essential components of services identified in the problem definition.

Such an EU level framework would meet the objective of improving the functioning of the internal market of accessible goods and services and improve competition on the market. It would however go beyond what is necessary. As was shown in the problem definition, internal market problems exist in particular in relation to the goods and services that emerged from the screening process. Covering all relevant accessible goods and services by EU requirements would therefore not be proportionate. Furthermore, in terms of Fundamental Rights such a general rule on accessibility for all goods and services might have a disproportionate impact on businesses in light of Article 16 & 17 of the Charter on freedom to conduct a business and property rights, without having a sufficient positive impact on disabled persons in light of Article 26 of the Charter.

Several policy options have been discarded at an early stage of the impact assessment process, as being either unrealistic, unable to meet the objectives or disproportionate.

This section gives an overview of the policy options which have been discarded and those which have been retained to address the problem and meet the objectives set out above.

IV. To increase competition among industry in the selected goods and services and in the area of public procurement.

III. To lower and prevent barriers to cross-border trade in the selected goods and services and in the area of public procurement.

II. To contribute to the achievement of the Europe 2020 Strategy with the aim of turning Europe into a “smart, sustainable and inclusive economy delivering high levels of employment, productivity and cohesion” as well as to the implementation of the European Disability Strategy 2010-2020.

I. To improve the functioning of the internal market for specific accessible goods and services, while serving the needs of industry and consumers.

The policy response to address the internal market fragmentation for specific goods and services and in the area of public procurement needs to meet the following general objectives:

In the public consultation and in various public events, the ICT industry in particular has expressed its interest in harmonised accessibility standards, given the global character of some products and services. This interest is also seen in the work under standardisation request M/376 where an effort is made to ensure coherence between US rules and European standards. This future EU initiative on accessibility, subject of this IA, could set a framework where accessibility standards developed with a global view could help to create a transatlantic market.

On the type of measures related to accessibility, the US has a combination of direct obligations for manufactures and services providers, obligations to public authorities to purchase accessible and a clear antidiscrimination framework with an explicit link to certain accessibility obligations.

Furthermore the US continues to develop and adopt new accessibility legislation following the technological developments. The US Office of Regulatory Affairs under the General services administrations has announced the publication by the Department of Justice of a Notice of Proposed Rule Making for June 2015 covering Accessibility of Web Information and Services of Public Accommodations with a focus on private entities of all types that are providing goods and services to the public through websites that operate as places of public accommodation including ecommerce.

At a global level it is the US accessibility legislation that has had a larger impact on goods and services. This is widely recognised by policy makers, industry and consumers. The US has probably the widest framework of accessibility legislation in the world, often with detailed compulsory standards and rules. Beyond the built environment, transport, hospitality and accommodation services, banking and ATMs, the US has comprehensive rules on ICT focusing on telecommunication and broadcasting services including terminals. Recently adopted legislation covers new technological developments like IP based communications, including for emergency services, and video.

At international level, the attention paid to disability and particularly to accessibility has got an important boost due to the UN Convention. By July 2015, it has been ratified by 157 countries while 159 have signed it.

So the European standards to be developed to respond to these Commission requests could be used in this initiative as a basis to set harmonised standards which could provide presumption of conformity with accessibility requirements. This is the case in the adopted Proposal for a Directive on ‘the accessibility of public sector bodies’ websites’.

However, the availability of international accessibility standards and the development of European standards based on those have not prevented Member States from drafting different national standards or adopting national legislation divergent from those international rules.

A number of accessibility standards are under development following standardisation requests to the European standardisation organisations by the Commission. In the requests it is required to align the development of standards to global developments and to ensure participation of relevant stakeholders from the industry as well as the consumer side. The standards under the requests relevant to accessibility are at different stages: M/376 (2005) on ICT resulted in the publication of the European standard EN 301549 (2014); M/420 (2007) on built environment and M/473 (2010) on mainstreaming accessibility following a "Design for all" approach in European standards are still under execution and it will still take three to six years before standards are available. The standards develop to respond to those requests will be based as much as possible on functional requirements and will avoid prescribing details on technical solutions in order to be future-proof. This is particularly relevant for fast changing technological areas as in the case of M/376. In this case, in line with developments in the US, the standard is organised around functional components or features of products to address the fast evolution in this sector. For example, contrary to previous standards, including the old US ones, instead of having sections for computers, telephones, or ATMs, it is organised in sections concerning for example elements of hardware input and output, elements of software such as user interface and controls, and others like two way voice communications.

Finally the sectors covered by this impact assessment may be subject to other existing EU legislation dealing with other issues like protection of health, environmental protection or energy consumption since essential requirements of different directives need to be applied simultaneously in order to cover all relevant public interests. The advantage of covering areas of public interest, like accessibility, in horizontal legislation relates to the coherence across sectors and consistency across legal instruments. From an accessibility policy perspective, the benefits of ensuring consistency between the obligations placed on the supply and the demand side (obligations to buy accessible enshrined in the public procurement directives and obligations to manufacturers and service providers to place in the market accessible goods and services) and across legal instruments (for example those related to sectoral legislation referring to characteristics of the web) will bring consistency in the internal market and will facilitate the establishment of a level playing field. Furthermore it brings clarity to stakeholders about the way to implement the related policy objective.

This future EU initiative, subject of this impact assessment, would also be consistent with the existing acquis on protection of consumer rights. Its provisions would be carefully tailored not to overlap with rules of the existing consumer rights legislation and to take them into account.

The proposal for a Directive on the accessibility of public sector bodies’ websites lays down accessibility requirements for a set of websites offering essential services to citizens. It is currently under discussion by the co-legislators. This intended EU proposal on improving the functioning of the internal market, by requiring private sector websites in some sectors to be accessible would have a different scope which will not overlap with that of the current proposal. However, to avoid contracting authorities having to implement different accessibility specifications depending on the type of website, the accessibility requirements for websites would be identical. This would be done by aligning the accessibility requirements of this EU initiative to those laid down in the proposal for a Directive on the accessibility of public sector bodies’ websites.

This EU accessibility initiative will have a different objective, that of improving the functioning of the internal market. It will therefore apply without prejudice to this legislative proposal based on Article 19 TFEU.

The 2008 proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation which would extend the protection from discrimination beyond employment, applying to social protection, education and access to goods and services, refers to accessibility of goods and services for disabled persons, without however specifying or imposing any detailed accessibility requirements in relation to such goods and services. As this proposal aims to eliminate discrimination, it is based on Article 19 TFEU. It is currently still under discussion in the Council.

Other legal acts require accessibility but they do not define its meaning and content. The EU legislation on public procurement, with an Internal Market legal base, contained non-compulsory provisions to take accessibility into account in calls for tenders. The Commission revised this legislation and made this provision mandatory, making accessibility compulsory in technical specifications. According to the adopted revised Directives, when contracting authorities decide to award contracts based on the most economically advantageous tender, the latter could be identified based upon criteria which include accessibility and design for all users. The current European Structural and Investment Funds Regulation requires accessibility to be taken into account as regards the content of each operational programme, the activities of the monitoring committee, and the annual implementation reports to be submitted by Member States to the Commission. Its Annex XI also establishes that there should be a mechanism ensuring effective implementation of the UN Convention. These mentioned EU legislation provisions on public procurement and on the structural and investment funds are among the current horizontal regulation at EU-level addressing issues relating to accessibility. This EU initiative would define what accessibility is and, as a consequence, would give normative content to the accessibility requirements of these instruments.

For example: this EU accessibility proposal would require websites selling passenger transport services to be accessible. Regulation 1107/2006 on the rights of disabled persons and persons with reduced mobility when travelling by air establishes the duty of airports and air carriers to provide assistance to those persons when they travel by air. The two Directives would not overlap, since their remit of application is different, but they would complement each other.

In other cases, EU legislation addresses only the situation of persons with disabilities with a focus on a specific area focusing on an assistive approach. This is the case of the Passenger Rights Regulations on the rights of persons with reduced mobility in various modes of transport that focus on the provision of assistance. Their scope of application will not be affected by this proposal. The rules of this EU initiative would only complement that legislation.

There are several EU legislative acts which include rules aimed at increasing access to goods and services by persons with disabilities or persons with functional limitations (see annex 10 for a full list). Usually, these acts are not providing rules on accessibility as such and neither are they meant to address exclusively the situation of these persons, but within a general legal framework dealing with a certain technical area, they include specific rules which have a positive impact for these persons. Many of these legislative acts have an internal legal market basis. The EU initiative would not apply within the remit of these acts where they provide more detailed requirements.

A future EU initiative on improving the internal market in the area of accessible goods and services would apply without prejudice to existing and future EU legislation on accessibility. By defining requirements for accessibility, it would rather complement the general accessibility obligation in EU legislation, such as in the fields of public procurement or the European Structural and Investment funds.

In this line of thinking, the EU initiative would also establish a proportionate implementation schedule, with a gradual approach. This would ensure the attainment of the objectives of the initiative without going beyond what is necessary for that purpose. Finally, rules for monitoring compliance with future EU accessibility requirements should be the least burdensome and be based on those normally used in internal market harmonisation legislation.

Any future EU initiative will be designed to respect fully the principle of proportionality and, in line with the approach of minimum harmonisation, the means it uses will be tailored to achieve the objective of ensuring the proper functioning of the internal market, but no more than that. A future EU instrument should set common objectives and general rules, while leaving freedom to Member States to define how to achieve those objectives, taking into account national circumstances. Member States should accept goods and services exported from another Member State, therefore ensuring the free movement of those goods and services.

Under the principle of proportionality, the content and form of EU action shall not exceed what is necessary to achieve the objectives provided for in the Treaties, and alternative options would not be capable of achieving the intended aim. All policy options will therefore be assessed on their compliance with the proportionality principle and options that would not be in line with this principle will be discarded.

Ensuring free movement of accessible goods and services will have positive economic effects. The proposed rules, by creating a level playing field for economic operators and preventing fragmentation of the internal market, will create legal certainty and offer economic operators an expanded market in which to sell their goods and services. As a further benefit, persons with functional limitations, including persons with disabilities, will benefit from more choice of accessible goods and services and from lower prices.

Action at the EU level is the most efficient way of addressing the main problem: obstacles to the proper functioning of the internal market. EU action will add value to national accessibility legislation by creating rules that will ensure the free movement of accessible goods and services in the internal market. This could not be done by the Member States acting alone.

Action at EU level would respect the principle of subsidiarity by focusing only on those goods and services for which there is clear evidence of a significant internal market problem – either because different national requirements create obstacles to trade, or because they fall under the remit of EU public procurement directives which, as described above, do not define accessibility in detail.

Less evidence was found to illustrate internal market barriers in the area of the built environment, particularly when it comes to immovable goods. Construction products, as goods circulating freely in the market, are already regulated by EU law. This impact assessment looked at the built environment from the perspective of cross-border architect services. The assessment of the impact for the built environment is restricted to those services where this element is an essential part of the service and only to the part of the built environment which is open to the public.

By their very nature and origin, the obstacles to the functioning of the internal market, which are caused by divergence of national legislation, can only be tackled effectively through a common approach at EU level. Only a coherent legal framework will allow the free flow of accessible goods and services in the internal market.

This problem is caused by the divergence of national legislations on accessibility requirements. The baseline scenario shows that this regulatory divergence will most likely increase. This is due notably to the entry into force of the UN Convention, as well as the general character of its provisions, which are open to different interpretations when they are implemented at national level. Therefore, the problem will not be solved if it is dealt with only at Member State level. Furthermore new EU legislation requiring accessibility in general terms without providing a definition like in the case of the Public Procurement Directives will have a similar effect.

There is a need for EU action, since Member States alone cannot tackle the problem. The problem does not concern only one or a few Member States. There are obstacles to the normal functioning of the internal market – both in the sense of present barriers to trade and in the sense of barriers to the development of the full potential of the internal market.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of scale or effects of the proposed action, be better achieved at Union level. According to Article 4(2) a) and g) of the TFEU, respectively, the areas of internal market and transport are areas of shared competence between the Union and the Member States.

A detailed analysis of the impact of the different policy options on the concerned fundamental rights recognised by the Charter is carried out in the assessment of the impact of the policy options and in more detail in Annex 9.

Regarding economic operators, an EU initiative would have a mixed impact on rights such as the freedom to conduct a business (Article 16) and the right to property (Article 17). First and foremost, by increasing the potential of the internal market through the elimination of obstacles to trade, the initiative would be beneficial for the exercise of those two rights. In some cases the initiative could also entail a limited restriction to the exercise of those rights with the adoption of new rules in some Member States. However, the restrictions resulting from these new rules would be justified and proportional and would result in an increase of the potential for intra-EU trade, from which the economic operators themselves would benefit. The new rules would also be justified with a view to promoting other fundamental rights, such as those mentioned above.

An EU initiative which would facilitate the functioning of the internal market for accessible goods and services would have a positive impact on several rights recognised in the Charter. An EU initiative would directly or indirectly facilitate the exercise of the following rights: the right to human dignity (Article 1), the right to integrity of the person (Article 3), the right to education (Article 14), the right to choose an occupation and the right to engage in work (Article 15), the rights of the elderly (Article 25), the right to integration of persons with disabilities (Article 26), and the right to freedom of movement and residence (Article 45).

Moreover, according to Article 90 TFEU, which concerns transport by rail, road and inland waterway, the objectives of the Treaties shall “be pursued within the framework of a common transport policy.” Article 91 provides that, for the purpose of implementing Article 90, the European Union may adopt appropriate provisions. Likewise, Article 100 TFEU provides that the European Union may “lay down appropriate provisions for sea and air transport”.

Article 114 TFEU allows the EU to take measures, not only to eliminate current obstacles to the establishment and functioning of the internal market but also to address barriers that dissuade economic operators from taking full advantage of the benefits of that market. The divergence of national and sometimes regional and local legislation on accessibility of goods and services creates legal uncertainty and higher transactions costs. These dissuade businesses from venturing outside their domestic market and investing in new and more innovative accessible goods and services, and thus from taking full advantage of economies of scale of the internal market.

According to Declaration n° 22 annexed to the Treaty of Amsterdam, the Conference of the Representatives of the Member States “agrees that, in drawing up measures under [Article 114 TFEU], the institutions of the Community shall take account of the needs of persons with a disability”. On the basis of Article 114 TFEU, the European Union has a right to act to improve the conditions for the establishment and functioning of the internal market concerning accessible goods and services. As explained above, the divergence of national legislation that exists now, and that will likely develop in the future, creates barriers to trade in the internal market. Article 114 of the Treaty allows for a harmonisation at the EU level of accessibility requirements, the differences in which have been identified as a key driver of the problem.

The Union’s right to act in this field is mostly set out in Article 114 of the Treaty on the Functioning of the European Union (TFEU). Its first paragraph empowers the European Parliament and the Council to adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. Article 114, paragraph 3 TFEU stipulates that the Commission shall aim at ensuring a high level of health, safety, environmental and consumer protection in its proposals envisaged in paragraph 1 of Article 114. Article 169(2) b) also provides that measures adopted pursuant to Article 114 are one instrument for the Union to “contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.” More generally, Article 12 TFEU provides that “consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.”

Moreover, considering that one main barrier that people with disabilities and older people experience is the ability to move outside of their homes, the potential benefit of accessible transport, hospitality or the built environment has a direct impact on the possibility for their participation in society and being included in common activities that all citizens do. There are growing numbers of websites including online information and online booking and sometimes they are essential even to be able to access the service, given the lack of person-managed stations.

For instance, disabled consumers cannot currently benefit for a genuine Internal Market for accessible mobile telecommunication devices and services. This initiative will allow them to call cross border with friends, family, and for work, either directly or using relay services.

Policy responses to address the internal market fragmentation for specific goods and services and in the area of public procurement would positively affect consumers. It will indeed increase the everyday life autonomy for disabled and older people and as a consequence, would improve their social and quality of life.

Disabled and elderly consumers and citizens at large are all affected as they cannot benefit from innovative, good quality accessible products offered at competitive prices.

According to feedback from consumers, there seem to be insufficient accessible mainstream goods and services on the EU market.

Economic operators, and public authorities in the area of public procurement, suffer from a lack of legal certainty, as to how exactly to cover accessibility requirements and cannot fully benefit from the size of the internal market (lack of economies of scale). Indeed, due to divergence of national accessibility requirements, meeting accessibility features of one Member State may result in a limitation of the product to the market of that State for example as those accessibility features may not work correctly with the services. The products produced for a limited number of consumers are more expensive since the operators cannot benefit from larger markets which would allow them to absorb the fixed costs of accessibility features.

In contrast, the European Lift Association refers to the positive effect that common rules on accessibility have had in Europe to dismantle market barriers: "The lift, escalator & moving walk industry is very pleased with the specific European legislation covering our sector. (…) Not only has this double legislation harmonised the equipments themselves throughout Europe, but it has boosted the competitiveness of manufacturers & installers, large and small companies, by organising a level playing field, while favouring innovation. The linkage of the directives with a clear set of CEN standards is an excellent tool for making it possible for any manufacturer or component manufacturer in Europe to certify its products once and sell or install anywhere in the European Union and EEA."

Furthermore, in the area of ICT the presence of European companies in trade fairs for new accessible products is very limited (lack of innovation). In comparison to the US for instance, where economic operators benefit from a large economy of scale ensured by common accessibility rules at the federal level, the EU seems to be lagging behind in terms of competitiveness and innovation of accessible products. Indeed, the European markets currently suffer from a limited delivery of high quality and reasonably priced accessible goods and services despite the growing demand for such products.

Economic operators who would like to sell their products or provide their services in other Member States face additional costs related to possible adaptation of their product/service to the requirements of a particular national market. Some ICT industry representatives explained that adapting products to divergent accessibility requirements across all EU Member States would be prohibitively expensive and could lead to a decision of not complying with some sets of national legislation. Therefore, limiting the national markets they supply for or leaving it to enforcement bodies to question the compliance of their products. While economic operators face legal uncertainty regarding accessibility requirements, consumers face legal uncertainty regarding what accessible products they could find in the market. In addition, eventual costs of litigation for non-compliance with the national obligationsremain an issue. Such costs are time consuming and more burdensome for SMEs. The detailed effect of the impacts is assessed in the various policy options. The problems experienced by economic operators today as a result of legislative fragmentation also relate to lack of legal certainty at the level of the accessibility requirements. For example, websites from public transport or accommodation providers that want to offer their services in various EU Member States are subject to different requirements and consequently they would either to have different versions of the websites or take the risk to receive complaints on non-compliance with accessibility rules. They also relate to lack of economies of scale, for example accessibility requirements placed on economic operators are so different that those that operate in various Member States could not install the same accessible ATMs.

The current situation, described in details above (§2.3), identifies internal market barriers preventing economies of scale and hindering the emergence of new and innovative accessible goods and services. These issues are expected to become more severe in future as Member States implement their obligations under the UN Convention.

Economic operators acting on the EU market are directly affected by the problems. These are both producers and providers of the priority goods and services and the economic operators who participate or would like to participate in cross-border public procurement. Both categories overlap and will include inter alia manufacturers and distributors of ICT goods and services, websites designers, architects, banks, hotel owners, on-line retailers, transport providers.

There are two main types of effects of the internal market fragmentation problem: (i) firstly, financial impacts on economic operators and public sector bodies, which are assessed in details in the impact analysis section; (ii) secondly, social and quality of life impacts on consumers. As the core objective of this initiative relates to market issues, the impacts on the rights of disabled consumers are assessed in a broad qualitative manner. Those impacts serve as a basis for the social impacts assessment of the policy options.

The few cases where EU legislation does harmonise accessibility rules, for example, in the area of lifts, low platform busses and rail, it has enlarged economies of scale and remove fragmentation in the market. Industry feedback has been supportive, for example in the cases of the lifts and the rail sectors, in their response to the European Accessibility Act as to the effect of enlarging and opening EU wide markets and providing a competitive edge.

Divergence of national accessibility requirements across the EU impedes European industry from enjoying the full potential of the internal market. This divergence is driven either by lack of EU coordination of which goods and services should be accessible or, when EU law or International agreements prescribes at a general level that certain goods or services need to be accessible (for instance the UN Convention or the EU public procurement rules), it does not provide detailed rules on which accessibility requirements would actually apply. Currently, this is left mainly to the discretion of national authorities, which has resulted in the current patchwork of divergent accessibility requirements.

A lack of cross-border competition through the introduction of differing accessibility standards for public procurement processes is also expected to put pressure on public budgets as less competition may take place.

In the responses to the public consultation businesses referred to additional costs for the adaptation of products, as well as for the time needed to understand the different legislative requirements in the Member States. Different technical accessibility requirements not only lead to barriers for businesses that are already involved in public procurement processes, but market entrance by new businesses is deterred since the initial costs of understanding different requirements in a fragmented EU public procurement market might be too high, especially for SMEs.

Different national accessibility requirements in public procurement result in practical obstacles for economic operators to participate in public procurement bids throughout the EU. They need to find out what accessibility in relation to particular public procurement calls means and possibly adapt their goods and services to those requirements. This may lead to numerous businesses focussing on regional markets only, e.g. the national public procurement market or markets in which the requirements are found to be rather similar, instead of increasing the market scope to the whole EU. The divergence in the existence of national toolkits or guidelines on public procurements adds to legal uncertainty about accessibility requirements and discourages cross-border participation in public procurement. Based on the methodology described in Annex 7, the cost for business to comply with those divergent national accessibility requirements is estimated at about €10 000m.

Based on the current legislative situation described in Annex 6, it is assumed that all Member States will have developed cross-sector technical accessibility requirements and/or guidelines for public procurement by 2020. This will lead for example in divergent accessibility requirements related to computers, telephones, built environment, transport facilities. The part of the total market size that is at risk of fragmentation is estimated at about €2 400 000m.

The number of contracting authorities who refer to the promotion of accessibility and design for all as their socially relevant public procurement criterion is expected to grow from 20% to 100% of national contracting authorities referring to accessibility. The share of public authorities that include accessibility/design-for-all requirements in their award criteria is expected to increase from 6.4% to 20% by 2020 due to Member States’ efforts within the aforementioned regulatory framework. Finally, the obligations of Member States under the UN Convention are also likely to further increase regulatory divergence in the area of accessibility requirements in public procurement.

The Directives do not, however, specify what accessibility means, leaving this aspect to sector-specific rules. When the new rules enter into force, by 18 April 2016, lack of accessibility requirements at the EU level will result in further fragmentation at national or local level. Member States, in order to fulfil the EU level obligation will further develop national rules defining accessibility in detailed for the use of public authorities. Similarly the new Structural Fund Regulations do not specify what accessibility means. The reinforcing of these obligations is also expected to lead to further divergent rules defining accessibility.

Baseline In the future, this divergence is likely to increase. Firstly, there is a noticeable trend to include social aspects, including accessibility requirements, in national plans on strategic use of public procurement. Secondly, the revised Public Procurement Directives make the inclusion of accessibility compulsory in calls for tenders.

Application of those accessibility rules in practice requires a certain level of knowledge about accessibility, including often complicated technical specifications, from the public sector bodies preparing the bids. In order to facilitate the task, some Member States have adopted specific accessibility requirements, or prepared toolkits, standards, or guidelines on the inclusion of accessibility into public procurement. These national rules and toolkits vary considerably from one Member State to another, both in terms of scope and requirements. In some Member States (for instance, the Czech Republic, France and Portugal) there are no national rules or general practice which would specify technical accessibility requirements. Specification of the technical accessibility requirements is left to the individual contracting entities which makes it even more difficult for potential bidders from other Member States to participate in cross-border public procurement. Annex 6 identifies different national approaches regarding accessibility in the area of public procurement.

The most relevant goods and services which are covered by the EU rules on public procurement would, similarly to all other goods and services, be those which are most relevant for the socio-economic integration of persons with disabilities into societies, i.e. the areas of built environment, ICT and transport (without however being limited to those areas). Accordingly, accessible goods and services covered by the EU rules on public procurement will include for instance contracts for construction of public buildings and the built environment in general, all transport-relevant contracts including means of transportation, the relevant built environment (stations), as well as accessible methods of purchasing tickets (websites and ticketing machines). In the area of ICT, the rules will cover public purchases of computers (software and hardware), other devices or services enabling accessible transfer of information (services enabling contact with public authorities’ emergency services and the relevant equipment, public on-line publications), as well as telephones or mobile phones. Annex 8 provides a list of goods and services which are subject to public procurement contracts and for which accessibility is most relevant.

Current situation The previous EU rules on public procurement required that whenever possible the technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or be designed for all users. Studies show that 20% of contracting authorities refer to the promotion of accessibility and design for all as their socially relevant public procurement criterion. It is important also to note that EU funding from programmes like the Structural Funds or the Connecting Europe Facility are often spend through public procurement.

Based on the methodology described in Annex 7, the cost for business to comply with those divergent national accessibility requirements is estimated at about €2 226m for websites and €22m for the built environment.

The regulatory fragmentation with regard to accessibility requirements for hospitality services and websites across the EU is not only an obstacle for disabled citizens intending to travel across borders, but also for businesses that intend to provide accessible hospitality services in different Member States. Understanding different sets of regulations and ensuring compliance with differing accessibility requirements comes with substantial additional costs. For instance, large hospitality undertakings that operate cross-border have to comply with different national