Draft bill regarding accessibility requirements for certain products

On 18 March 2021, the German Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales – “BMAS”) published the ministerial draft of the Act implementing Directive (EU) 2019/882 of the European Parliament and of the Council on the accessibility requirements for products and services (“Accessibility Requirements Act” (Barrierefreiheitsgesetz) – the “Act”). In addition to requirements for services, the draft contains significant new obligations for manufacturers, importers and distributors of computers, tablets, notebooks, ATMs and ticket machines, mobile phones, routers, televisions, e-book readers, etc., which are the main focus of this news article.

The basic structure of the Act is intended to be similar to that of the Product Safety Act (ProdSG):

• After listing the scope and definitions, the Act provides for the power of the BMAS to define the accessibility requirements for products in detail by issuing statutory instruments. The requirements are to be based on Annex I of Directive (EU) 2019/882. In particular, information has to be made available to consumers via several sensory channels and presented in an understandable way. Furthermore, alternative ways of presentation and activation always have to be offered to enable people with disabilities to use the product.
  
  
• Afterwards, the draft Act differentiates between the obligations of the manufacturer, the importer and the distributor, respectively. In parallel to the Product Safety Act, the accessibility requirements must be met, EU declarations of conformity must have been obtained, and the products must be CE marked. None of this applies to microenterprises, i.e. companies that employ fewer than ten people and whose annual turnover or annual balance sheet total does not exceed 2 million euros. For small and medium-sized enterprises, the draft Act partly provides for specific regulations with regard to the proportionality aspects. However, all other economic operators also do not have to comply with individual requirements of the Act if these would either significantly alter the product or impose a disproportionate burden on the relevant economic operator. Whether these requirements are met must be carefully assessed and documented. This will almost certainly lead to controversy.
  
  
• As a complete regulation, the draft Act also contains provisions on market surveillance and law enforcement: The market surveillance authorities of the German federal states will check whether the accessibility requirements are complied with and whether exemptions are used properly. Non-compliance with the regulations can result in a retail withdrawal or product recall (!) ordered by the government, and it can be sanctioned as an administrative offence with a fine of up to €100,000. Consumers concerned can initiate corresponding market surveillance measures as individuals or with the help of associations. The draft Act also provides for representative actions by associations.
  
  
• The Act is intended to apply to all products covered by its scope which are placed on the market after 28 June 2025.

Impact in practice

It is true that the presented Act is only a first draft. However, since the content is already essentially determined under European law by Directive (EU) 2019/882, no major changes are expected in terms of legal policy, so that accessibility - starting with these product segments - will also become part of product compliance in Germany. Manufacturers, importers and distributors of the above product types should therefore deal with the draft Act early on, so that they can identify any deficits in their products with respect to accessibility requirements and also correct them in the technical supply chain in good time.