AustriaBarrierefreiheitsgesetz (BaFG), market surveillance by the Sozialministeriumservice, checks, corrective orders, reports by consumers and associations, appeals and administrative fines
Barrierefreiheitsgesetz (BaFG), §§ 21 bis 33, 35 und 36, BGBl. I Nr. 76/2023
In force since .
An accessibility requirements rule binding public and private bodies.
- Instrument type
- an act of a legislature
What it requires
- If the Sozialministeriumservice checks a product or service of yours, cooperate fully with it; make available free of charge the tools and access data needed for a full test for the duration of the check, and provide samples and trial provision of the service free of charge, bearing the transport costs (BaFG, ss. 23(1) and (2) and 25).
- Give the Sozialministeriumservice, on request, the relevant documents, technical specifications, data and information on conformity and technical aspects, including access to embedded software, copies of them, and information on the supply chain, distribution network, quantities on the market and other models with the same technical features (BaFG, s. 23(5) and (6)); allow its authorised persons to enter the premises, land and means of transport you use for your business during business hours (s. 23(4)).
- If the Sozialministeriumservice announces a check of a self-service terminal, keep the terminal available undisturbed for the time the check needs (BaFG, s. 23(7)).
- If a check shows that a product or service does not comply, bear the costs of the check that the Sozialministeriumservice orders by notice (BaFG, s. 23(9)).
- If the Sozialministeriumservice requires corrective measures for a product within a set period, take all suitable measures to bring the product into conformity and extend them to all the products you made available on the Union market; if you do not, withdraw or recall the product within the further period it sets, failing which it orders provisional measures by notice to withdraw, recall, prohibit or restrict the product on the Austrian market (BaFG, s. 26(1), (3) and (4)).
- If the Sozialministeriumservice finds that a service does not meet the requirements, take the corrective measures it requires within the period it sets; it must then by notice oblige you to take corrective or other proportionate measures, such as informing the public of the non-compliance or ceasing to offer or provide the service (BaFG, s. 28(1)); if the built-environment information of section 15 is missing, provide it within the period set by notice (s. 28(2)).
- If the Sozialministeriumservice finds a formal non-conformity (a CE marking missing or wrongly affixed, an EU declaration of conformity missing or wrong, technical documentation unavailable or incomplete, missing, wrong or incomplete manufacturer or importer details, or another unmet formal duty of section 9 or 11), correct it; if it persists the Sozialministeriumservice restricts or prohibits the product or has it withdrawn by notice (BaFG, s. 29(1) and (2)); if the Annex 3 information of a service is missing, incomplete or not made available in accessible form, correct it, failing which the Sozialministeriumservice obliges you by notice to take corrective or other proportionate measures (s. 29(3) and (4)).
- If you rely on the fundamental-alteration or disproportionate-burden exception, expect the Sozialministeriumservice to check that you made and documented the assessment, informed it, applied the criteria of Annex 4 properly, and met the accessibility requirements that still apply (BaFG, s. 24(1)).
- A notice of the Sozialministeriumservice, or its failure to decide, can be challenged by an appeal to the Bundesverwaltungsgericht; the federal minister responsible for social affairs may bring an appeal on a point of law (Amtsrevision) to the Verwaltungsgerichtshof against the Bundesverwaltungsgericht's decision (BaFG, ss. 31 and 32).
- Before the Sozialministeriumservice requests corrective action or issues a notice, it must give you the result of its investigation and at least ten working days to comment; once you show it that the lawful state has been restored, apply to have the measures it ordered by notice lifted in whole or in part (BaFG, ss. 26(1) and (4), 28(3), 29(5) and 30).
- A breach of the duties listed in section 36 is an administrative offence that the Sozialministeriumservice punishes with a fine; where the operator is a legal person, the person authorised to represent it externally, or a responsible agent it has appointed, answers for the breach and the legal person is jointly liable for the fine, unless the provision provides otherwise, and a substitute term of imprisonment is set for the case that the fine cannot be collected (BaFG, s. 36; Verwaltungsstrafgesetz 1991, ss. 9 and 16).
These lines are LexLint's reading of the law's text.
If you get it wrong
Penalty structure
Section 36 sets administrative fines, imposed by the Sozialministeriumservice, in three tiers: up to EUR 80,000 for placing a non-conforming product on the market or making it available and for offering a service in breach of section 14(1) (EUR 50,000 if the offender is a microenterprise or a small or medium-sized enterprise), up to EUR 40,000 for the formal breaches listed in section 36(2), such as a missing conformity assessment, EU declaration of conformity, technical documentation, identification, CE marking, corrective measure or Annex 3 information (EUR 25,000 for such an enterprise), and up to EUR 16,000 for the documentation, information and cooperation breaches listed in section 36(3) (EUR 10,000 for such an enterprise). Each amount is a ceiling per offence. Section 36(4) requires the scale of the breach, the number of products or services and persons affected and any repeat breach to be taken into account.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 80,000
Who enforces it
Enforcement body
The Sozialministeriumservice (Bundesamt für Soziales und Behindertenwesen), which runs the central market surveillance under the Act in its Landesstelle Oberösterreich
What this law does
Section 21 of the BaFG makes the Sozialministeriumservice, the Bundesamt für Soziales und Behindertenwesen, responsible for the official acts that the Act provides for, unless the Act provides otherwise. The Sozialministeriumservice has placed the central market surveillance under the Act in its Landesstelle Oberösterreich. Directive (EU) 2019/882 requires Member States to designate the authorities that check the compliance of services.
Section 22(3) requires the Sozialministeriumservice to check whether products and services meet the requirements and whether economic operators meet their duties. Section 23(1) lets the Sozialministeriumservice test products and services, and requires the economic operator to make the tools and access data needed for a full test available free of charge for the duration of the test.
Section 23(3) lets the Sozialministeriumservice buy products and use services under a false identity for the purpose of market surveillance. Section 23(7) allows the Sozialministeriumservice to check self-service terminals only after timely prior notice, and requires the operator to keep the terminal undisturbed for the time needed. Section 23(9) lets the Sozialministeriumservice oblige an operator whose product or service fails the check to bear the costs of the check by notice (Bescheid).
Under section 26, where a product does not meet the requirements, the Sozialministeriumservice requires the operator to take all suitable corrective measures within a set period, and, if it has taken none within that period, to withdraw or recall the product within a further period.
Where the operator takes no suitable corrective measures, section 26(4) requires the Sozialministeriumservice to take provisional measures by notice to withdraw or recall the product or to prohibit or restrict its availability on the Austrian market. Before a request under section 26(1), the Sozialministeriumservice must give the operator the result of its investigation and at least ten working days to comment.
Sections 28(3) and 29(5) give a service provider or other operator the same opportunity before a request or notice concerning a service or a formal non-conformity. Section 30 requires measures ordered by notice to be lifted in whole or in part, on the addressee's application, once it shows the Sozialministeriumservice that the lawful state has been restored.
Under section 28(1), where a service does not meet the requirements, the Sozialministeriumservice requires the provider to take corrective measures within a set period, and by notice must oblige the provider to take corrective or other proportionate measures such as informing the public of the non-compliance or ceasing to offer or provide the service.
Under section 29(1), the Sozialministeriumservice requires an operator to correct a formal non-conformity, such as a missing or wrongly affixed CE marking, a missing EU declaration of conformity, incomplete technical documentation or missing manufacturer or importer details. If the formal non-conformity persists, section 29(2) requires the Sozialministeriumservice to restrict or prohibit the product by notice, or to have it withdrawn.
Section 29(3) and (4) apply the same two steps to a service provider that has not prepared the Annex 3 information or has not made it available to the public in accessible form. Section 31 allows an appeal against a notice of the Sozialministeriumservice to the Bundesverwaltungsgericht. Section 33 requires the Zollamt Österreich to cooperate with the Sozialministeriumservice in market surveillance under Chapter VII of Regulation (EU) 2019/1020.
Section 22(5) requires the Sozialministeriumservice to give a consumer, on request and in an accessible format, the information it holds on an economic operator's compliance and the operator's assessments under sections 17(2) and 18(2). Section 35(1) and (2) give consumers, the Verein für Konsumenteninformation, the Österreichischer Behindertenrat, the Bundesarbeitskammer and the Wirtschaftskammer Österreich the right to report possible infringements to the Sozialministeriumservice.
Section 35(3) requires the Sozialministeriumservice to examine the report and to tell the reporting person or organisation in writing, in an accessible format and within eight weeks, whether it will conduct proceedings, giving reasons if it will not. Section 36(6) excludes the fines of section 36(1) to (3) in award procedures under the Bundesvergabegesetz 2018 and the Bundesvergabegesetz Konzessionen 2018.
Section 35(4) excludes the reporting right of section 35(1) to (3) in the same award procedures. Section 36(4) requires the scale of the breach, in particular the number of products or services and persons affected, and whether the breach is a repeat breach, to be taken into account in setting the fine. Section 36 makes each breach it lists an administrative offence (Verwaltungsübertretung) that the Sozialministeriumservice punishes with a fine.
Section 9(1) and (7) of the Verwaltungsstrafgesetz 1991 makes the person authorised to represent a legal person externally answerable for its compliance with administrative provisions, unless those provisions provide otherwise or a responsible agent has been appointed, and makes the legal person jointly liable for the fine.
Section 16 of the Verwaltungsstrafgesetz 1991 requires a substitute term of imprisonment to be set with every fine for the case that it cannot be collected, of at most two weeks where the offence carries no prison term. Section 36(5) allocates the fines to the Federation, which pays them into the support fund for persons with disabilities for participation projects.
The Sozialministeriumservice states that the conciliation procedure of the Bundes-Behindertengleichstellungsgesetz is carried out by its Landesstellen, not by the market surveillance authority under the BaFG.
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