Fundamental Alteration

The European Accessibility Act (EAA) includes provisions for cases where implementing certain accessibility requirements would necessitate a "fundamental alteration" of a product or service. This concept serves as an important boundary condition for the scope of accessibility obligations.

Article 14(1)(c) of the EAA states that accessibility requirements apply only to the extent that they "do not require a significant change in a product or service that results in the fundamental alteration of its basic nature."

This provision acknowledges that certain accessibility modifications might fundamentally change what a product or service is or does, and in such cases, economic operators may be exempted from specific requirements.

The EAA does not provide a precise definition of what constitutes a "fundamental alteration." However, from the directive and related EU legal principles, we can understand that:

• It involves a change that would essentially transform the nature or purpose of the product or service
• It goes beyond reasonable modifications, affecting core characteristics or functionalities
• It changes the primary identity or essential purpose of what is being offered
• It is not merely a substantial change but a transformative one that affects the basic nature

Unlike the disproportionate burden exemption, the fundamental alteration provision is not primarily concerned with costs or resources but with the preservation of a product's or service's essential nature and purpose.

When evaluating whether an accessibility requirement would cause a fundamental alteration, economic operators should consider the following criteria:

Core Purpose and Functionality

• Would implementing the accessibility requirement change the primary function of the product or service?
• Would it alter how the core features operate in a way that changes what the product essentially is?
• Would it transform the fundamental user experience beyond recognition?

Target Audience and Use Cases

• Would the changes significantly shift the product's target audience or intended use cases?
• Would implementing accessibility features fundamentally change how the product is used by the majority of users?
• Would the changes eliminate specialized functionality that defines the product for a specific audience?

Product or Service Identity

• Does the required change alter defining characteristics that make the product or service unique in the market?
• Would the accessibility modifications fundamentally change how users identify or understand the product or service?
• Would implementing the requirements transform the product into something essentially different?

The concept of fundamental alteration can be better understood through examples:

Potential Fundamental Alterations

• Specialized Historical Archive: A digital archive of historical manuscripts might claim fundamental alteration if required to provide full text alternatives for all ancient handwritten documents, as this would change the nature of the archive from primary sources to transcribed versions
• Visual Art Experience: A virtual reality art experience designed specifically to explore visual perception might claim fundamental alteration if required to provide non-visual alternatives that would essentially create a different artistic experience
• Language Learning Service: An audio-based language immersion service might claim fundamental alteration if required to provide text alternatives for all spoken content, as it would transform the immersive audio-only methodology that defines the service
• Professional Technical Equipment: Highly specialized technical equipment designed exclusively for professional users with specific training might claim fundamental alteration if certain accessibility requirements would impact precision or specialized functions

Not Fundamental Alterations

• E-Commerce Platform: Adding screen reader support, keyboard navigation, and alternative text for images would not fundamentally alter an online store's nature
• Banking Application: Implementing accessible authentication methods and ensuring form field labels are accessible would not change the fundamental nature of a banking service
• E-Book Reader: Adding text-to-speech functionality, adjustable text sizes, and contrast controls would not fundamentally alter the nature of an e-book reading service
• Streaming Service: Adding closed captions, audio descriptions, and accessible navigation would not fundamentally alter the nature of a video streaming service

These examples illustrate that routine accessibility features that preserve core functionality while making it accessible would rarely constitute fundamental alterations.

Burden of Proof

The economic operator claiming a fundamental alteration bears the burden of proof. This requires:

• Detailed documentation explaining why specific accessibility requirements would fundamentally alter the product or service
• Evidence-based assessment demonstrating how the required changes would transform the basic nature
• Consultation with experts in both accessibility and the specific domain of the product or service
• Market research or user feedback supporting the claim that changes would alter the fundamental nature

Partial Application

Even when a fundamental alteration exemption applies:

• It applies only to the specific accessibility requirements that would cause the fundamental alteration
• All other accessibility requirements that don't cause fundamental alteration must still be implemented
• Alternative approaches to accessibility should be explored where possible
• The exemption should be reviewed periodically as technology and methods evolve

Relationship with Innovation

The fundamental alteration provision aims to strike a balance between:

• Protecting innovation and preserving unique product/service characteristics
• Encouraging inclusive design that considers accessibility from the outset
• Allowing specialized products that may serve specific needs or purposes
• Promoting general accessibility across the market

The provision is not intended to be a broad exemption but rather a targeted recognition that in specific cases, certain requirements might fundamentally change what a product or service is.

Organizations can use the following framework to assess potential fundamental alteration claims:

Step 1: Define Core Essence

• Clearly articulate the essential nature and purpose of the product or service
• Identify the defining characteristics that constitute its basic nature
• Document the primary functions and key features that define what it is

Step 2: Analyze Impact of Requirements

• Assess each accessibility requirement individually against the core essence
• Identify which specific requirements might alter fundamental characteristics
• Evaluate the extent of change to core functionality, not just the effort required

Step 3: Explore Alternatives

• Investigate alternative approaches to meet accessibility needs
• Consider modifications to implementation that preserve core nature
• Consult with accessibility experts on creative solutions

Step 4: Document Decision

• Record the detailed reasoning for any fundamental alteration claim
• Document which specific requirements are affected and why
• Maintain evidence supporting the assessment
• Include any alternative measures being implemented

It's important to distinguish between fundamental alteration and disproportionate burden:

An organization might invoke both provisions in different contexts, but they should be assessed separately and with appropriate evidence for each.

For more information about disproportionate burden assessment, see theAnnex IV: Disproportionate Burden page.

• Consider accessibility early: Integrate accessibility considerations in the design phase to avoid fundamental alteration issues later
• Assess narrowly: Apply the fundamental alteration concept narrowly to specific requirements, not broadly to avoid accessibility obligations
• Document thoroughly: Maintain detailed documentation of any fundamental alteration assessment and conclusions
• Seek expert input: Consult with both accessibility experts and domain specialists before claiming fundamental alteration
• Explore creative solutions: Investigate innovative approaches that might provide accessibility without fundamental alteration
• Implement alternatives: When a specific requirement would cause fundamental alteration, explore alternative accessibility approaches
• Reassess periodically: Review fundamental alteration determinations as technology and methods evolve
• Communicate clearly: Explain to users which accessibility features are available and any limitations

The fundamental alteration provision interacts with the EAA annexes in several ways:

• Annex I (Accessibility Requirements): Fundamental alteration may provide exemption from specific requirements in Annex I, but only those that would transform the basic nature
• Annex II (Examples): Examples in Annex II might help clarify when a particular approach wouldn't constitute fundamental alteration
• Annex III (Built Environment): Physical accessibility requirements might interact with fundamental alteration considerations in specific contexts
• Annex IV (Disproportionate Burden): Organizations need to distinguish between fundamental alteration and disproportionate burden when seeking exemptions
• Annex V (Conformity Assessment): Any claimed fundamental alteration exemptions should be documented as part of the conformity assessment process

For more information about implementation examples, see theAnnex II: Implementation Examples page.

Market surveillance authorities will evaluate fundamental alteration claims carefully. Organizations should:

• Maintain robust evidence: Be prepared to justify any fundamental alteration claim with thorough documentation
• Demonstrate good faith: Show that a genuine assessment was conducted, not a superficial attempt to avoid accessibility requirements
• Implement partial compliance: Demonstrate that all requirements not causing fundamental alteration have been implemented
• Show alternative approaches: Document any alternative accessibility measures implemented where direct compliance would cause fundamental alteration

Authorities are likely to scrutinize fundamental alteration claims closely, especially when similar products or services in the market have successfully implemented the accessibility requirements in question.

For more information about market surveillance, see theMarket Surveillance page.