What's the latest on the European Accessibility Act in the Netherlands?

Or: A human tries to read laws and make sense of it 🙃

First of all, I am not a lawyer. I'm but a simple software developer with an interest in accessibility. You would be a fool to take anything in this blogpost at face value.

I am also constantly amazed by the sorry state of accessibility on the web. It seems like a lot of companies and online services still don't seem to care a lot about accessibility (like for example one of the largest music festivals in the Netherlands), and I regularly see the following question pop up on twitter, and other forums or messageboards: "How do I convince business to prioritize accessibility?". And well, a good answer for that might possibly be:

THE LAW.

However, what is the law? "It should be accessible" seems like a fairly vague description for a law. Curious to find some answers and specifics to this, I went down the rabbit hole that is the European Accessibility Act, government and law websites, and tried to find out.

Note: This blogpost will focus largely on the status of the European Accessibility Act in the Netherlands specifically.

The Temporary Decree on digital accessibility of the government

In the Netherlands, the temporary decree on digital accessibility of the government (tijdelijk besluit digitale toegankelijkheid overheid) has been in effect since May 3rd 2018, which entails that the accessibility of government related websites and mobile applications should be up to standard. This decree is temporary, because it's the precursor or younger brother of the Digital Government Act (Wet Digitale Overheid).

Who?

So to which kind of organizations does this decree apply?

• State, regional or local government agencies (of which a very convenient list is published here)
• Public law instutions
• Partnerships

Interestingly, the decree does not apply to healthcare related organizations, nor nurseries and schools, NGOs, and privatized sectors like transport, gas, water and post.

How?

• Websites and mobile apps should be made accessible based on the requirements of the European standard EN 301 549. Which pretty much just means WCAG 2.1, level A and AA.
• By publishing an accessibility statement that explains which steps the organization takes to ensure accessibility, as well as a planning to keep the the website accessible
• Continuing to fully comply with points 1 and 2

Interestingly, additional information and potential exceptions are provided for "specific situations", such as audiovisual content, online ticket services, intranet applications, archival content, and more in this here list.

As mentioned above, this is only applicable to (semi-)governmental institutions. What about other businesses and organizations?

European Accessibility Act

The European Accessibility Act (Europese Toegankelijkheidswet, or EAA) is a European directive, which means that rules and guidelines have been agreed upon by the European Union, and now have to be translated and implemented on a per country basis. You can read the source code of the EAA here.

Who/what?

Whereas the temporary decree on digital accessibility of the government applies mainly to the websites and mobile applications of governmental organizations, the implementation of the European Accessibility Act applies to a wider spectrum of organizations, services, devices and businesses, such as:

• Computer hardware systems and operating systems
• Self-service terminals like ticket machines, check-in machines, and information terminals
• e-readers
• consumer terminal equipment with interactive computing capabilities (smart phones)
• electronic communication services
• services providing access to audiovisual media services (netflix)
• air, bus, rail and waterborne passenger transport services
• consumer banking services (banking)
• e-commerce (webshops)

You can find the complete list here.

How?

There's a very detailed description of the accessibility requirements for products and services in the source code of the EAA.

Update October 19, 2022: I've since found a source that indeed states that the EAA will be based on the European Norm (EN) 301 549, which includes A and AA successcriteria from the WCAG.

Some blogposts online seem to state that the EAA will be based on WCAG as well (like the temporary decree on digital accessibility of the government), but I've not actually found any mention or confirmation of WCAG in relation to the implementation of the EAA itself; only in relation to the temporary decree on digital accessibility of the government. The EAA source does mention the principles "perceivable, operable, understandable and robust", which are taken from the WCAG, and considering the temporary decree on digital accessibility of the government is also based on the WCAG, it seems likely that the implementation of the EAA will be based on it as well. The real answer though is; we don't know yet.

When?

The EAA should have been implemented by European countries on the 28th of June, 2022. In the Netherlands, this deadline has been missed. The directive will start to actually apply to products and services starting from June 28th, 2025.

Status?

The reason for the delay of the implementation of the EAA in the Netherlands seems to be related to several things. In a status report on the website of de Eerste Kamer it is said that the act has been in consultation between December 22, 2021 until Februari 25th 2022. In the status update, it is mentioned that because of the complexity of the matter, and the involvement of many different ministries were cause for delays. The expectation is that the act will presented to the Advice Department of the Council of State (Afdeling advisering van de Raad van State) in spring 2023. It is also mentioned that the EAA will only be actually applicable from June 28th, 2025, and the expectation is that this deadline will not be missed.

There were also concerns about the fact that there is no mention of education in the EAA, which lead to questions about the act.

2: Are you aware of the fact that "education" is not mentioned in the European Accessibility Act?

Yes.

3: Do you think it is possible to still ensure that the requirements the act sets for accessibility are also guaranteed in the field of education?

Amending the Act to ensure this would still be a lengthy and complex process, with no guarantee of success at European level, therefore possibilities are now being explored in national legislation and regulations. [...]

Admittedly, this seems like a fair point. There is no mention of education in the source code of the EAA at all.

Additionally, Ieder(in) (umbrella organization for people with disabilities in the Netherlands), expressed their concerns about the delay of the implementation in this letter. In the letter, they call for more urgency to avoid further delays, provide clarity to citizens and business via a central information point, and to actively include people with disabilities and representing organizations.

(77) With a view to establishing, in the most efficient way, harmonised standards and technical specifications that meet the accessibility requirements of this Directive for products and services, the Commission should, where this is feasible, involve European umbrella organisations of persons with disabilities and all other relevant stakeholders in the process.

In conclusion, it seems like the implementation will still be dragged out a fair bit under the cover of "it will only be applicable in 2025 anyways". I've personally found that there especially is a huge need for a centralized point of information regarding the implementation of the EAA, because the information is all over the place.

Points of interest in the EAA

Something that is mentioned a lot in the EAA is "proportionality", and "disproportionate burden" which, put plainly, feels like it might enable huge cop-outs by claiming disproportionate burden:

(64) For reasons of proportionality, accessibility requirements should only apply to the extent that they do not impose a disproportionate burden on the economic operator concerned, or to the extent that they do not require a significant change in the products and services which would result in their fundamental alteration in the light of this Directive. Control mechanisms should nevertheless be in place in order to verify entitlement to exceptions to the applicability of accessibility requirements.

The criteria for assessment of disproportionate burden is described in ANNEX VI.

(65) This Directive should follow the principle of ‘think small first’ and should take account of the administrative burdens that SMEs are faced with. It should set light rules in terms of conformity assessment and should establish safeguard clauses for economic operators, rather than providing for general exceptions and derogations for those enterprises. Consequently, when setting up the rules for the selection and implementation of the most appropriate conformity assessment procedures, the situation of SMEs should be taken into account and the obligations to assess conformity of accessibility requirements should be limited to the extent that they do not impose a disproportionate burden on SMEs. In addition, market surveillance authorities should operate in a proportionate manner in relation to the size of undertakings and to the small serial or non-serial nature of the production concerned, without creating unnecessary obstacles for SMEs and without compromising the protection of public interest.

SMEs are small or medium sized enterprises

(66) In exceptional cases, where the compliance with accessibility requirements of this Directive would impose a disproportionate burden on economic operators, economic operators should only be required to comply with those requirements to the extent that they do not impose a disproportionate burden. In such duly justified cases, it would not be reasonably possible for an economic operator to fully apply one or more of the accessibility requirements of this Directive. However, the economic operator should make a service or a product that falls within the scope of this Directive as accessible as possible by applying those requirements to the extent that they do not impose a disproportionate burden. Those accessibility requirements which were not considered by the economic operator to impose a disproportionate burden should apply fully. Exceptions to compliance with one or more accessibility requirements due to the disproportionate burden that they impose should not go beyond what is strictly necessary in order to limit that burden with respect to the particular product or service concerned in each individual case. Measures that would impose a disproportionate burden should be understood as measures that would impose an additional excessive organisational or financial burden on the economic operator, while taking into account the likely resulting benefit for persons with disabilities in line with the criteria set out in this Directive. Criteria based on these considerations should be defined in order to enable both economic operators and relevant authorities to compare different situations and to assess in a systematic way whether a disproportionate burden exists. Only legitimate reasons should be taken into account in any assessment of the extent to which the accessibility requirements cannot be met because they would impose a disproportionate burden. Lack of priority, time or knowledge should not be considered to be legitimate reasons.

And finally, the following point seemed interesting as well:

(70) Microenterprises are distinguished from all other undertakings by their limited human resources, annual turnover or annual balance sheet. The burden of complying with the accessibility requirements for microenterprises therefore, in general, takes a greater share of their financial and human resources than for other undertakings and is more likely to represent a disproportionate share of the costs. A significant proportion of cost for microenterprises comes from completing or keeping paperwork and records to demonstrate compliance with the different requirements set out in Union law. While all economic operators covered by this Directive should be able to assess the proportionality of complying with the accessibility requirements of this Directive and should only comply with them to the extent they are not disproportionate, demanding such an assessment from microenterprises providing services would in itself constitute a disproportionate burden. The requirements and obligations of this Directive should therefore not apply to microenterprises providing services within the scope of this Directive.