The proportion of people with mild or moderate disabilities in the European market is steadily increasing, as is the proportion of older people. At the same time, we live in an increasingly modern and digital society where it is difficult or costly to participate in social life without the use of the internet or other digital devices. However, these products and services are often not accessible to society as a whole. Against this background, the European and German legislators have increasingly focused on these issues in order to regulate them appropriately.

From public to private sector: expansion of accessibility obligations under the European Accessibility Act

The existing German regulations on accessibility, such as the Act on Equal Opportunities of Persons with Disabilities (Gesetz zur Gleichstellung von Menschen mit Behinderungen – BGG) and the Accessibility in Information Technology Ordinance (Barrierefreie-Informationstechnik-Verordnung – BITV), have so far only imposed obligations on public authorities. The European Accessibility Act (EAA), adopted by the European Parliament in 2019, now also imposes obligations on private economic operators in the business-to-consumers (B2C) sector. In Germany, the EAA has been implemented by the German Implementation Act of the Directive (EU) 2019/882 of the European Parliament and of the Council on the accessibility requirements for products and services (Barrierefreiheitsstärkungsgesetz – BFSG), which will essentially apply from 28 June 2025. 

Scope of application: what products and services fall under the German Implementation Act for the European Accessibility Act? 

The purpose of the BFSG, as outlined in Section 1 para. 1 BFSG, is to ensure barrier-free communication, mobility and barrier-free access to products and services, especially in the digital space. This aims to address the right to participation, which was difficult to achieve under the previous patchwork of European and German regulations.

Under Section 1 para. 2 the BFSG will apply to all products and services within the meaning of the Act that are marketed in Germany after 28 June 2025. Products within the meaning of the Act include computers, self-service terminals such as ATMs, ticketing or check-in machines; mobile phones, Internet routers, TV sticks, game consoles and e-readers. Services include, for example, electronic communications services, websites, apps and e-tickets for passenger transportation services, consumer banking services, e-books and e-commerce services, other than video-on-demand services. Certain content on websites and mobile applications is excluded, such as media published before 18 June 2025. If an economic operator finances, develops or exercises control over content on third-party websites or mobile applications, the requirements of BFSG also apply. Food, animal feed, living plants and animals as well as their products and products of human origin are also excluded. 

The BFSG is addressed to all economic operators who are active on the market vis-à-vis consumers. Economic operators within the meaning of the law are manufacturers, importers, distributors, authorized representatives and service providers. Exceptions apply to microenterprises with fewer than 10 employees and an annual turnover of EUR 2 million or with a maximum annual balance sheet total of EUR 2 million.

Meeting accessibility requirements: key standards for products and services

Economic operators must place their products on the market and provide their services within the framework of accessibility requirements. Accessibility is guaranteed when products and services can be found, accessed and used by people with disabilities in the usual way, without particular difficulty and generally without outside help. More detailed requirements are defined in the Ordinance of the Federal Ministry of Labor and Social Affairs (Verordnung zum Barrierefreiheitsstärkungsgesetz – BFSGV). For example, websites offering services must be perceptible, understandable, operable and robust (= "Four Principles of Accessibility"). The BFSGV also contains special and more extensive obligations for some products (e.g. e-readers) and services (e.g. banking services for consumers). The benchmark here is the current state of the art. Products and services that comply with fully harmonized standards published in the Official Journal of the EU or parts thereof are presumed to be accessible. The same applies if they comply with technical specifications or parts thereof, such as DIN EN 301 549, which in turn refers to the Web Content Accessibility Guidelines (WCAG) 2.2 of the World Wide Web Consortium (W3C).

Obligations for manufacturers and service Providers: from CE marking to information accessibility

Manufacturers must produce their products without barriers, create a technical documentation according to Annex 2 of the BFSG, carry out a conformity assessment procedure and issue a declaration of conformity. In addition, the manufacturer must affix a CE marking to the product. The obligations of the other economic operators presuppose the fulfilment of the obligations of the manufacturer, essentially that they must ensure that the manufacturer has fulfilled his requirements before, for example, placing his product on the market.  Accessible production or provision alone is not enough; products and services must also be offered in an accessible manner. The BFSG also provides further information and labelling obligations, e.g. in the form of accessible general terms and conditions, for example. In addition, economic operators are subject to cooperation and information obligations vis-à-vis the market surveillance authorities that will be established by each federal state. 

The BFSGV provides a so-called 2-sense principle for all products and services placed on the market. This means that the required information can be perceived via at least two sensory channels, for example written form and voice output. The BFSGV also contains special requirements for the provision of information on products, packaging, instructions or individual product categories or e.g. the obligation to implement voice output and the option of using headphones at self-service terminals or the presentation of information on banking services must be presented in such a way that no higher language level than B2 is required to understand it.

The BFSG also does not apply if the implementation would mean either a fundamental change in the nature of the product or service or a disproportionate burden.  

The economic operator must assess, document and report to the market surveillance authority whether there is a change in the nature of the product or service. There is no definition of a fundamental change, but according to the explanatory memorandum to the BFSG, a strict standard must be applied in the assessment. What is required is such a reduction in performance or failure of purpose that the product or service becomes unusable for the economic operator. This would be the case, for example, if compliance with accessibility requirements, such as the use of a new technology or software, would affect the performance of the product to such an extent that it could no longer fulfil its intended purpose. Lack of priority, time or knowledge does not constitute a legitimate reason. Furthermore, given the intended benefit for people with disabilities, a very strict standard of assessment must be applied

The disproportionate burden is assessed according to the ratio of the net cost of compliance to the total cost of providing the service, the ratio of the cost of implementation to the expected benefits, and the ratio of the net cost to the total cost of providing the service. A disproportionate burden may arise if compliance with the accessibility requirements places an excessive additional organizational or financial burden on the economic operator and it would not be reasonably possible for the economic operator to fully apply one or more of the accessibility requirements.

Action plan for economic operators: preparation for compliance by June 2025

Economic operators should use the time remaining until 28 June 2025 to assess whether and how they need to implement these requirements. Implementations should also begin as early as possible, as the implementation and documentation of the measures are likely to take a considerable amount of time and resources, as a large part of the value creation chain is affected. In particular, service providers with long-term contracts should start implementation now, given the limited exception for existing contracts executed prior to the 28 June 2025 until the 30 June 2030 and for already installed self-service terminals for a maximum of 15 years after its installation. There is a particular need for action on the part of economic operators operating on the Internet. Their websites must be accessible (e.g. adjustability of font size or contrast; provision of alternatives for audio and image/video). Companies should also check at an early stage whether any of the above-mentioned grounds for exclusion apply to them.

Challenges and criticisms: legal uncertainty and financial burdens for businesses

The BFSG represents an enormous burden for companies, not least because of the undefined legal terms such as "fundamental change in the essential characteristics", which creates a problematic legal uncertainty. Economic operators must be careful whether they want to invoke the exemption for themselves. On the one hand, complying with the BFSG requires a lot of time and resources which an economic operator would like to avoid, but on the other hand, unjustified reliance on the exemption will result in expensive sanctions. The explanatory memorandum to the BFSG estimates the implementation costs at around EUR 270 million, which are expected to be amortized through new sources of income from the development of new markets and EU-wide standardization. Associations of affected parties are already criticizing the BFSG, e.g. it is not clear when the exemptions apply. In contrast to the EAA, the BFSG also lacks provisions on the barrier-free environment to enable access to the affected products and services in the first place. In view of the significant economic factor (see recital 2 of the EAA), the threat of fines by the market supervisory authority – which may result in a fine of up to EUR 100,000, depending on the nature of the infringement – or the numerous possibilities for legal action by consumers, associations or other market participants, the economic operators concerned should start implementation as soon as possible and complete it on time.