Annex VI: Criteria for Disproportionate Burden

Annex VI of the European Accessibility Act (EAA) establishes specific criteria for assessing whether compliance with accessibility requirements would impose a disproportionate burden on economic operators. These criteria provide a structured framework for evaluating claims of disproportionate burden and ensuring consistent application across the EU.

The criteria in this annex should be used in conjunction with the disproportionate burden assessment process outlined in Annex IV. While Annex IV provides the overall assessment methodology, Annex VI details the specific factors that should be considered during this assessment.

The EAA specifies that the following criteria must be taken into account when conducting an assessment of disproportionate burden:

1. The ratio of net costs of compliance to overall costs:
   • Net costs of compliance with accessibility requirements versus overall costs (operating and capital expenditures) of the economic operator
   • This establishes a proportional assessment of financial impact relative to the organization's size and resources
2. The estimated costs and benefits compared to the potential benefit to persons with disabilities:
   • Taking into account the frequency and duration of use of the specific product or service
   • This balances implementation costs against the scale of potential positive impact for users with disabilities
3. The ratio of the net costs of compliance to the economic operator's net turnover:
   • This ratio provides a measure of economic impact relative to the organization's financial capacity
   • It helps determine whether the costs would significantly impact the operator's financial viability

Net costs of compliance should be calculated considering both direct costs and potential benefits:

Direct Costs

Direct costs related to achieving compliance include:

• Design and Development: Costs for redesigning products or services to incorporate accessibility features
• Implementation: Physical production or programming costs related to accessibility features
• Testing: Costs for testing and validating accessibility features
• Documentation: Costs for creating accessibility documentation
• Training: Costs for training staff on accessibility requirements
• Maintenance: Ongoing costs for maintaining accessibility features

Offsetting Benefits

Potential benefits that should be deducted from costs include:

• Market Expansion: Revenue from increased market size due to inclusivity
• Public Funding: Subsidies or financial support for accessibility implementation
• Tax Benefits: Tax incentives for accessibility investments
• Operational Efficiencies: Cost savings from streamlined processes resulting from accessibility improvements
• Brand Value: Enhanced reputation and brand value from demonstrating social responsibility
• Avoided Costs: Potential litigation or compliance penalties avoided

Net Cost Calculation

The calculation of net costs should follow this formula:

Net Costs = Direct Costs - Offsetting Benefits

This net cost figure is then used in the ratio calculations specified in the evaluation criteria.

A critical component of the assessment is the evaluation of frequency and duration of use by persons with disabilities:

Quantitative Assessment

When evaluating frequency and duration of use, economic operators should:

• Estimate Potential Users: Determine the estimated number of persons with disabilities who could benefit from improved accessibility
• Assess Usage Patterns: Consider how often these individuals would use the product or service and for how long
• Evaluate Criticality: Assess whether the product or service fulfills essential needs or provides access to essential services
• Consider Alternatives: Analyze whether accessible alternatives are currently available in the market

Categories of Impact

Impact assessment should consider different categories:

• High Impact: Products or services used daily or continuously by significant numbers of persons with disabilities, with few accessible alternatives
• Medium Impact: Products or services used regularly by moderate numbers of persons with disabilities, or with some accessible alternatives
• Low Impact: Products or services used infrequently or by small numbers of persons with disabilities, with many accessible alternatives

A higher impact category indicates a greater potential benefit to persons with disabilities, which should be weighed against the costs of implementation.

The EAA does not prescribe specific numerical thresholds that automatically constitute a disproportionate burden. Instead, the assessment should consider these ratios in the context of:

Contextual Evaluation

• Company Size: Different expectations for large corporations versus small and medium enterprises (SMEs)
• Industry Standards: Typical cost ratios and investments in the specific industry
• Time Horizon: Short-term costs versus long-term benefits and return on investment
• Impact Significance: Higher ratios may be acceptable for products or services with high impact on accessibility
• Resource Availability: Financial and technical resources available to the economic operator

Suggested Framework

While not specifically mandated by the EAA, the following framework may help in evaluation:

National authorities may provide more specific guidance on appropriate thresholds within their jurisdictions.

Economic operators claiming disproportionate burden must maintain comprehensive documentation of their assessment process, which should include:

1. Detailed Cost Analysis:
   • Itemized breakdown of costs related to implementing each accessibility requirement
   • Documentation of how costs were estimated, including any quotes, expert assessments, or previous implementation experiences
   • Identification of offsetting benefits and how they were calculated
2. Financial Context:
   • Overall costs of producing or providing the product or service
   • Net turnover figures for the relevant period
   • Calculated ratios as specified in the evaluation criteria
3. Impact Assessment:
   • Analysis of frequency and duration of use by persons with disabilities
   • Supporting data or research on user demographics and needs
   • Evaluation of the criticality of the product or service
4. Alternative Measures:
   • Documentation of alternative measures considered and implemented
   • Explanation of how these measures maximize accessibility within the constraints identified
   • Plan for reevaluation when financial or technical constraints change
5. Methodology:
   • Description of the assessment methodology used
   • Qualifications of those who conducted the assessment
   • Any consultation with accessibility experts or user groups

This documentation must be retained for a period of five years from the last time the product was made available on the market or after the service was last provided.

The EAA contains special provisions for microenterprises providing services:

Exemption from Assessment Requirements

Microenterprises providing services are exempted from the requirement to perform the assessment of disproportionate burden. However, they must still comply with the applicable accessibility requirements.

Definition of Microenterprise

A microenterprise is defined as an enterprise that employs fewer than 10 persons and has an annual turnover not exceeding €2 million or an annual balance sheet total not exceeding €2 million.

Implications

While microenterprises providing services are exempt from the formal assessment requirements, they should note that:

• They still must comply with the accessibility requirements of the EAA
• If they claim disproportionate burden, they should be prepared to justify this claim if requested by market surveillance authorities
• The exemption applies only to the formal assessment process, not to the accessibility requirements themselves
• Microenterprises that manufacture products are not exempt from the assessment requirement

The following examples illustrate how the criteria might be applied in practice:

Example 1: E-commerce Website

Example 2: Specialized Medical Device

Example 3: Mobile Banking Application

Economic operators may face several challenges when applying these criteria:

Common Assessment Difficulties

• Quantifying Benefits: Determining the exact financial benefit of increased accessibility can be challenging
• Estimating User Impact: Limited data on users with disabilities may make it difficult to accurately assess frequency and duration of use
• Varying Technical Complexity: Accessibility implementation costs can vary widely based on existing systems and architectures
• Evolving Standards: Changing technical specifications and harmonized standards may impact cost assessments
• Organizational Structure: For complex organizations, determining the appropriate level (product, division, company) for assessment can be difficult

Potential Mitigation Strategies

To address these challenges, economic operators can:

• Consult Experts: Engage accessibility specialists to provide accurate cost and impact assessments
• Conduct User Research: Gather data on users with disabilities through surveys, interviews, or market research
• Phase Implementation: Consider a phased approach to spread costs over time while progressively improving accessibility
• Industry Collaboration: Share anonymized cost data and best practices through industry associations
• Consult Authorities: Seek guidance from market surveillance authorities on appropriate assessment methodologies

Annex VI works in conjunction with other parts of the EAA:

• Annex I (Accessibility Requirements): Defines the accessibility requirements that form the basis for the disproportionate burden assessment
• Annex IV (Disproportionate Burden Assessment): Provides the methodology for conducting the assessment, while Annex VI provides the specific criteria to be applied
• Annex V (Conformity Assessment for Products): Relates to the process that products must undergo to demonstrate compliance with accessibility requirements, which may be affected by disproportionate burden claims

Understanding these relationships is crucial for economic operators to correctly assess and document disproportionate burden claims in the context of the EAA as a whole.

The criteria in Annex VI provide a structured framework for assessing whether compliance with accessibility requirements would impose a disproportionate burden. By considering the ratio of costs to overall costs and turnover, as well as the potential benefit to persons with disabilities based on frequency and duration of use, economic operators can make an informed assessment.

It is important to note that claiming disproportionate burden is an exception rather than the rule. Economic operators should always aim to maximize accessibility within their constraints and should only claim disproportionate burden after a thorough and well-documented assessment process.

The assessment should be periodically reviewed as technologies evolve, costs change, and new solutions become available, ensuring that accessibility continues to improve over time even when a disproportionate burden has been legitimately claimed.