The European Accessibility Act (EAA) becomes enforceable across the European Union on 28 June 2025, but many organisations still struggle to understand how to interpret its obligations and its exemptions in the absence of guidance from both the EU and its Member States.
As a Directive, the EAA does not take direct effect in Member States and can only take force once transposed into local law. In some EU countries this was a matter of passing a single piece of legislation, effectively adopting the EAA into national law on a wholesale basis; in other countries multiple pieces of legislation were passed updating and amending pre-existing accessibility law across a range of areas. Despite significant delays in transposition by a number of Member States, the accessibility requirements of the EAA are now a feature of national law across the EU.
Given the variations in enforcement mechanisms and penalties across the EU and the patchwork approach to transposition, it was hoped that Member States would produce guidance alongside their legislative changes to help the business world to navigate its new accessibility duties. However, with a handful of exceptions, there has been very little, if any guidance from Member States on interpreting the exemptions to the EAA, in particular, those permitting businesses to avoid or minimise their obligations to consumers as a result of the disproportionate economic burden, or the fundamental alteration of the underlying goods and services.
Microenterprises
Of the three main exemptions set out in the EAA, the one that will benefit the most businesses is also the most straightforward. Article 4(3) of the EAA specifies that microenterprises may be exempt from ensuring that the services they offer are fully accessible to persons with disabilities. A microenterprise is an entity employing fewer than 10 people and with annual turnover or balance sheet totalling below EUR 2 million.
As well as a potential exemption from offering accessible services, microbusinesses are relieved of requirements around designing and manufacturing products in an accessible manner (Article 4(4)) and the need to provide information in accessible formats, such as braille, large print, or electronic formats compatible with assistive technologies (Article 4(2) and Annex I).
Microenterprises would do well to avoid complacency in relation to their exemption under the EAA. As with the other exemptions it is subject to specific conditions and must often be justified through adequate documentation. A business could move from having nine employees to ten very quickly and there is no grace period available for microenterprises transitioning in this way. This means that unless the business has no plans to grow or expand, it would be well advised to begin life factoring in the requirements of the EAA rather than placing heavy reliance on the microenterprise exemption.
In addition, microenterprises that offer in-scope products cannot rely on this exemption and therefore do fall under the EAA and Member States’ laws. Certain Member States like Germany offer free consultation and advice on EAA compliance. Where available, this aims to ensure that even business with smaller staff power and budget can offer accessible products.
Disproportionate burden
The disproportionate burden exemption relieves businesses from specific accessibility requirements if adhering to them would impose undue hardship on the organisation. However, stating the obvious, businesses receiving public or private funding to improve accessibility cannot claim a disproportionate burden. The burden of analysis rests with the business itself but the exemption, as detailed in Article 14(2) and Annex VI, considers several factors:
- Nature and size of the enterprise: smaller businesses with limited resources might find compliance more challenging compared to larger organisations.
- Costs of compliance: the financial implications of implementing accessibility measures should be scrutinised. If the costs significantly outweigh the benefits, relying on the exemption might be justified.
- Estimated benefits for persons with disabilities: the impact of the accessibility measures on individuals with disabilities should be assessed. If the measures provide minimal benefit relative to their cost, e.g. if a specific service is historically not used by this group, this can support a case for exemption.
- Resources available: the overall resources available to the business, including financial, human, and technical resources, are evaluated.
- Effectiveness of measures: if alternative measures can achieve similar benefits at a lower cost or with fewer burdens, these alternatives may be preferred.
At first glance the factors to be assessed appear straightforward but businesses in the process of debating the applicability of the exemption may find it challenging in the absence of clear guidance. For example, when assessing the nature and size of the enterprise it is not clear whether an organisation should consider the size of affiliated bodies. If a company is part of a broader group structure it will be for the company to assess whether its relationship to other group entities is close enough that it should take into account the scale of its wider group. The European Commission is empowered to adopt delegated acts to further specify the relevant criteria that are to be taken into account (Art. 14(7)). We also hope to see further guidance by Member State authorities to prevent any legal uncertainties and avoid additional costs for businesses.
The EAA does not state whether the decision to rely on an exemption for disproportionate burden can be made on a one-off basis, or whether the decision should be regularly reassessed, and if so how often. At the least, providers of EAA services are required to re-assess every five years (Article 14(5)(c))). It seems evident that a significant change in the size of the enterprise or service would trigger a reassessment, as it would also have a knock-on effect on the relative cost of compliance and the resource available. However, the cost of compliance and the estimated benefits for persons with disabilities may change significantly over time as technological developments make it far more straightforward for organisations to adapt their goods and services. This suggests that a regular assessment of the validity of an exemption should be undertaken whether or not it is triggered by a significant change to the organisation itself. If a regular assessment is not undertaken then consideration of the ongoing applicability of the exemption would be advisable when a product or service is updated or re-issued.
To rely on the disproportionate burden exemption, businesses must adequately document and justify why compliance would constitute a disproportionate burden. This documentation should detail all relevant information supporting their claim. Reliance on the exemption does not necessarily entitle a business to disregard the EAA in its entirety. It may well be that some level of compliance is appropriate but full compliance would amount to a disproportionate burden. Further, businesses must inform competent Member State authorities about relying on this exemption (Art. 14(8)) and provide a copy of the assessment on request (Art. 14(3)).
Assessing and documenting the suitability of the exemption is a particular challenge for certain types of service providers. E-book publishers to whom the EAA specifically applies, face significant challenges in determining whether the assessment of economic burden can apply to all or part of their publishing list. In the absence of guidance, those publishers with significant backlists of historic publications have to decide for themselves how to prioritise their publications. A range of approaches may be valid including focusing on recently published works, focusing on most popular works, and focusing on those required as set texts for courses of study. Some publishers may also seek to rely on the relatively unexamined exemption in the EAA for archive materials, since there is no strict definition of what constitutes an archive and no prohibition on selling archived works. So, in the absence of guidance to the contrary, backlist items could be treated as archived for the purposes of the EAA.
Fundamental alteration
Under the fundamental alteration exemption, a manufacturer of otherwise in-scope products or a provider of relevant services may decline to bring them into compliance with the EAA if doing so would represent a fundamental alteration to the nature of those goods or services (14(1)(a)). Several factors should be considered:
- Nature of products and services: the primary function or characteristics of a product or service should not be compromised by accessibility measures.
- Core functionality: if making a product or service accessible would alter its core functionality or essential features, an exemption might be justified.
- Business model impact: compliance with accessibility requirements should not disrupt the business model significantly.
However, the EAA as well as the Member State laws do not provide further guidance which creates legal uncertainty and may scare businesses off from relying on this exemption.
For instance, e-books (a service under the EAA) and e-readers (a product) provide strong examples of the challenges of interpretation of fundamental alteration. To what extent do e-readers have to provide solutions to the visually impaired that would rival audiobooks? The assumption has been that the requirements around compatibility with screen reader technology do not extend to a requirement that e-books should effectively be convertible to audiobooks. However, as technology significantly improves to the point an AI-read book sounds virtually the same as an actor-read audiobook, the distinction is becoming significantly blurred. Those publishers who produce both e-books and audiobooks may experience significant tension between their business lines. But the express call out of screen reader technologies in the EAA suggests that reliance on fundamental alteration as a basis to restrict e-book audio functionality would be susceptible to challenge.
Further difficulty is experienced by those publishers producing e-books heavily reliant on content such as tables charts maps and diagrams. Scientific textbooks or those focused on the visual arts may be so drastically altered insofar as the reader's experience of them is very different, as to amount to a fundamental alteration. In this case it may be that publishers rely in the alternative on both the fundamental alteration and the disproportionate economic burden exemptions, given the extreme difficulty of producing alt text descriptions of complex imagery.
Navigating the exemptions for practical application
To benefit from any of the exemptions in the EAA, businesses must document and justify their basis for reliance and should be prepared to produce their documentation when required by a regulator.
As the EAA is likely to be one of a number of regulations affecting the development of goods and services, businesses may wish to factor it into any legal compliance review undertaken at the early stages of development. Alongside privacy compliance or product safety assessments, accessibility requirements and the availability of any exemptions should be considered at the earliest possible opportunity, since compliance may be extremely difficult or impossible to reverse engineer at a later stage.
Regular reassessments of the applicability of exemptions considering changes to the size of the enterprise and developments in available technology should also be undertaken to ensure that assessments remain valid.
While the absence of guidance on how to apply the exemptions available under the EAA has made that exercise more challenging as the law comes into force, it is possible that through a pattern of enforcement and eventual court decisions the position will become clearer, and the circumstances under which it is appropriate to apply an exemption will be agreed. Until greater clarity is offered either through guidance or enforcement decisions, this will continue to be an area where businesses must document their decision-making processes carefully to benefit from the good will of enforcement authorities. Well-documented efforts towards compliance may offer no guarantee that a regulator will accept the application of an exemption, but they are the best tool available to businesses required to adopt a risk-based approach in the absence of any practicable alternative.
