5 September 20217 minute read

Website accessibility for persons with disabilities: minimum harmonization creates fragmentation

The importance of universal website accessibility guidelines cannot be denied. By removing obstacles to content and introducing adequate website accessibility tools, the process of accessing online content shall accelerate, which results in the use of less resources. Moreover, website accessibility entails increased quality education, access to knowledge and provision of global services, and therefore fosters economic growth, entrepreneurship and innovation also in the SESG environment.

This prompted the EU to take a comprehensive approach by introducing the EU Web Accessibility Directive 2016/2102 of 26 October 2016. This Directive aimed (i) to harmonize the internal market for web accessibility products and services, and (ii) to increase digital and social inclusion by making the websites and mobile applications of public sector bodies more accessible for citizens – particularly those with disabilities – based on common accessibility requirements.

Although the Directive only envisages public sector bodies and excludes the private sector from its scope, it does impose minimum harmonization and thus allows for Member States to “maintain or introduce measures in conformity with Union law which go beyond the minimum requirements for accessibility of websites and mobile applications established by this Directive.”

According to its article 13, the European Commission has to review the application of the Directive by 23 June 2022. As the public consultation has just started, here we look at Member States that went beyond this minimum harmonization and introduced accessibility requirements aiming at the private sector as well.

Walking the extra mile: did Member States go further than the minimum harmonization requirement by EU law?

Not surprisingly, not all Member States have engaged in such “gold-plating” practices. Belgium, Italy, Germany and the UK, for example, did not extend the legal obligations of the Web Accessibility Directive to the private sector, whereas France, amongst others, did.

France goes beyond the minimum requirements

France has transposed the Web Accessibility Directive through two instruments: an update of Law No. 2005-102 of 11 February 2005 and Decree No. 2019-768 of 24 July 2019.

Website accessibility for disabled persons is mandatory for (i) public services, (ii) services made for such disabled persons and (iii) companies with a turnover, in France, of higher than the threshold of EUR250 million (calculated on the basis of the average annual sales in France for the last three fiscal years). Accessibility obligations cover access to all types of information in digital form, regardless of the means of access, content and mode of consultation; in particular internet sites, intranet, mobile applications and software packages.

The accessibility obligations do not apply to online public communication services from (i) audiovisual media service providers or (ii) non-profit private law organizations that do not provide essential services for the public or services specifically addressing the needs of or intended for persons with disabilities. Additionally, an exception is also made for certain content (such as live audio and video content, including content with interactive components or third-party content that is not funded or developed by the organization and not under its control).

Legal accessibility requirements are implemented to the extent that they do not create a disproportionate burden for the organization. A disproportionate burden is an exemption that can be invoked on a case-by-case basis for a certain feature or content. Disproportionate burden may be invoked where it is not reasonably possible for the organization to make content or functionality accessible, including where making it accessible would compromise the organization's ability to fulfill its public service mission or economic objectives. In determining the existence of a disproportionate burden, the agency must consider, among other things, the following circumstances: (i) the size, resources and nature of the agency involved; and (ii) the estimated costs and benefits to the agency relating to the estimated benefit to persons with disabilities, taking into account the frequency and duration of use of the service and the extent of the service provided.

Spain, the Netherlands and Italy did not extend these legal obligations to the private sector

Most Member States did not extend these legal obligations, mostly where local laws regarding web accessibility in the private sector already existed before the Web Accessibility Directive was adopted. These local laws differ from jurisdiction to jurisdiction, with some countries offering a higher level of protection to persons with disabilities than others.

In Spain, for example, the Law 34/2002 on the Services of the Information Society and e-Commerce (LSSI) stipulates that websites of companies of “extraordinary economic relevance” must comply with the “average” level of accessibility measures generally accepted, except if for a certain technology this requirement would not be feasible. Companies of “extraordinary economic relevance” are companies with more than 100 employees or with an annual turnover exceeding EUR6,010,121 in certain sectors (telecommunications services for consumers, financial services for consumers, water supply for consumers, gas retail suppliers, power supply for end consumers, travel agencies, transportation services for people and, to a limited extent, retailers). The LSSI, however, does not precisely define the “average” level of accessibility measures generally accepted. It is understood that this reference may change to adapt to the market as a whole. It is however likely that this includes having a page on the brand website specifically for persons with disabilities, or alternatively, contents of that page to be tailored to them.

The Netherlands did not extend the legal obligation of the Web Accessibility Directive to non-governmental entities. Nonetheless, under the Equal Treatment of Disabled and Chronically Ill People Act, a general obligation exists for providers of goods and/or services to ensure that those with a disability have access to their (digital) facilities and no longer have to personally request an adaptation. The provision however also dictates that providing such general accessibility must not entail a disproportionate burden on the provider. Pursuant to this Act, it may be required to ensure that the websites of private entities (that offer goods and/or services, or provide in the option of concluding, executing or terminating agreements) are accessible to, for example, visually impaired people.

In Italy, general principles for accessibility are already applied, in accordance with Law no. 4/2004 (Provisions to facilitate and simplify the access to IT tools for users and, in particular, for people with disabilities) and with its implementing regulation. Following this Act, websites and mobile applications mainly have to be accessible (ie perceptible, usable, understandable and solid). IT systems (including websites and mobile applications) are considered accessible if (i) the content is accessible by the user, and (ii) the information offered is usable/available, ensuring access to the service and information without unjustified inconveniences or constraints on the user. Under the mentioned law, public and private employers have to render available to employees with disabilities the hardware and software tools and assistive technology suitable for the specific disability, even in the case of teleworking, taking into consideration the tasks actually performed. Further, technical rules necessary in order to ensure compliance with these principles and requirements of accessibility are provided for by specific guidelines issued by the Agency for Digital Italy (‘Agenzia per l’Italia Digitale’).

Fragmentation between the public and private sector continues to exist across the EU

Following the above, it is apparent that an interplay is created where (i) few Member States extended the legal obligations under the Web Accessibility Directive to the private sector, (ii) most Member States did not extend the Web Accessibility Directive provisions to the private sector, yet have in place other local laws regarding accessibility applicable to private bodies, and (iii) other Member States did not extend the provisions of the Web Accessibility Directive to the private sector, nor do they have other local laws in place, such as Belgium.

As a result, a fragmented legal landscape regarding web accessibility provisions still exists across the EU. It needs to be further monitored if and how this issue will be tackled in the European Commission’s current review on the application of the Web Accessibility Directive.


Special thanks to our DLA Piper colleagues Alexandre Balducci (France), Willemijn Rensen (the Netherlands), Diego Ramos (Spain) and Francesca De Novellis (Italy) for contributing to this article.

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