GermanyBarrierefreiheitsstärkungsgesetz (BFSG), accessibility duties of manufacturers of consumer products and of importers and distributors treated as manufacturers
Barrierefreiheitsstärkungsgesetz (BFSG), §§ 1 Abs. 2, 6 bis 8, 12, 16 bis 19 und 37
In force since .
An accessibility requirements rule binding public and private bodies.
- Instrument type
- an act of a legislature
What it requires
- If you manufacture a product listed in section 1(2) and place it on the market in the Union after , make it accessible, so that persons with disabilities can find, reach and use it in the generally customary way, without particular difficulty and in principle without outside help, to the requirements of the Verordnung zum Barrierefreiheitsstärkungsgesetz (BFSG, s. 3(1); Directive (EU) 2019/882, Art. 7(1)).
- Place the product on the market only if it was designed and manufactured to those requirements, the technical documentation under Annex 2 was prepared, the conformity assessment (an internal production control) was carried out and showed conformity, an EU declaration of conformity was issued under section 18, and the CE marking was affixed under section 19 (s. 6(1)).
- Keep the technical documentation and the EU declaration of conformity for five years after placing the product on the market, and make sure by suitable procedures that series production stays in conformity, taking changes in product design and in the standards or technical specifications relied on into account (s. 6(2) and (3)).
- If you know or have reason to believe that a product you placed on the market does not meet the requirements, take the corrective measures needed without delay, withdraw or recall it if conformity cannot be restored, and inform the market surveillance authority and the authorities of the Member States where you placed it, with details of the non-conformity and the measures taken (s. 6(4)).
- Keep a register of the products whose non-conformity you reported to the authorities and of the complaints about them, in writing or electronically (s. 6(5)).
- Put a type, batch or serial number or another identifier on the product (or on the packaging or an accompanying document where the size or nature of the product makes that impossible), state your name, trade name or brand and a postal address with a central contact point in a language consumers easily understand, and ensure that instructions for use and safety information in German, clear, understandable and distinct as the ordinance requires, accompany it (s. 7(1) to (4)).
- Give the market surveillance authority, on its reasoned request, all information and documents needed to show conformity, in German or a language the authority easily understands, and cooperate with it on any measure to restore conformity (s. 7(5)).
- If you appoint an authorized representative, give it in writing at least the duties to keep the declaration and documentation for five years, to supply information and documents to the authority and to cooperate with it; you may not transfer the duty to design and manufacture to the requirements or to prepare the technical documentation (s. 8(3) and (4)).
- If you are an importer or distributor that sells a product under your own name or brand, or modifies a product already on the market so that its conformity may be affected, meet the manufacturer's duties in sections 6 and 7 (s. 12).
- Rely on section 16 (fundamental alteration) or section 17 (disproportionate burden, judged on the criteria of Annex 4) only after you have assessed it and documented the assessment, which you keep for five years from the last making available of a product and show to the authority on request; inform the market surveillance authority and those of the Member States where the product is placed without delay; you may not rely on section 17(1) if you receive public or private funds, other than your own, to improve accessibility; and the EU declaration of conformity states which requirements the exception affects (ss. 16(1) to (3), 17(1) to (5) and 18(2)).
- A microenterprise dealing with products need not keep the documentation or notify the authority when it relies on section 16 or 17, but must give the authority on request the facts relevant to its assessment (ss. 16(4) and 17(2)).
These lines are LexLint's reading of the law's text.
If you get it wrong
Penalty structure
Section 37(2) sets a fine of up to EUR 100,000 for the offences in section 37(1), items 1, 7, 8, 9 and 10, and up to EUR 10,000 for the other offences in section 37(1). The offences are administrative offences (Ordnungswidrigkeiten) committed intentionally or negligently.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 100,000
Who enforces it
Enforcement body
The market surveillance authorities of the Länder (Marktüberwachungsbehörden), in practice the joint monitoring body of all 16 Länder, the Marktüberwachungsstelle der Länder für die Barrierefreiheit von Produkten und Dienstleistungen (MLBF AöR)
What this law does
Section 3(1) requires products that an economic operator makes available on the market to be accessible.
Section 1(2) applies the Act to the products it lists that are placed on the market after , namely consumer general-purpose computer hardware systems with their operating systems, payment terminals with their hardware and software, cash machines, ticketing machines, check-in machines and interactive information terminals (other than terminals installed as integrated parts of vehicles, aircraft, ships or rail vehicles), consumer terminal equipment with interactive computing capability used for telecommunications services or for access to audiovisual media services, and e-book readers.
Section 2 provides that a manufacturer is a natural or legal person, or a partnership with legal capacity, that manufactures a product or has it developed or manufactured and markets it under its own name or brand.
Section 6(1) lets a manufacturer place a product on the market only if it was designed and manufactured to the requirements of the ordinance under section 3(2), the technical documentation was prepared and the conformity assessment carried out, an EU declaration of conformity was issued and the CE marking was affixed. Section 6(2) requires the manufacturer to keep the technical documentation and the EU declaration of conformity for five years after the product is placed on the market.
Section 6(3) requires the manufacturer to ensure by suitable procedures that series production stays in conformity. Section 6(4) requires a manufacturer that knows or has reason to believe that a product it placed on the market does not conform to take the corrective measures needed, to withdraw or recall the product if conformity cannot be restored, and to inform the market surveillance authority and the authorities of the Member States where it placed the product without delay.
Section 6(5) requires the manufacturer to keep a register of the products whose non-conformity it reported to the authorities and of the complaints about them. Section 7(1) requires the manufacturer to ensure that the product bears a type, batch or serial number or another identifier. Section 7(2) requires the manufacturer to state its name, trade name or brand and its postal address on the product when placing it on the market.
Section 7(3) requires the manufacturer to ensure that instructions for use and safety information in German accompany the product. Section 7(5) requires the manufacturer to give the market surveillance authority, on its reasoned request, all information and documents needed to demonstrate conformity, in German or in a language the authority easily understands.
Section 8(4) bars a manufacturer from transferring to an authorized representative the duties of section 6(1), item 1 and the preparation of the technical documentation. Section 12 makes sections 6 and 7 apply to an importer or distributor that places a product on the market under its own name or brand, or modifies a product already placed on the market so that its conformity may be affected.
Section 18(1) requires the manufacturer to issue an EU declaration of conformity before a product whose conformity was shown under Annex 2 is placed on the market. Section 19(1) requires the manufacturer or its authorized representative to affix the CE marking before such a product is placed on the market. Section 18(3) provides that the requirements for the technical documentation may not impose excessive burdens on microenterprises and on small and medium-sized enterprises.
Annex 2 provides that the conformity assessment procedure is an internal production control. Section 16(1) applies the accessibility requirements only to the extent that compliance does not require a significant change that fundamentally alters the basic characteristics of the product or service. Section 17(1) applies them only to the extent that compliance would not impose a disproportionate burden, assessed against Annex 4, on the economic operator.
Sections 16(4) and 17(2) relieve microenterprises dealing with products of the documentation and notification duties, but they must give the authority on request the facts relevant to the assessment. Section 37(1), item 1 makes it an administrative offence to place a product on the market in breach of section 6(1), item 1. Section 37(1), item 9 makes it an administrative offence to omit the CE marking or to affix it incorrectly.
Section 37(2) sets a fine of up to EUR 100,000 for items 1, 7, 8, 9 and 10 of section 37(1), and up to EUR 10,000 for the others. Because section 37(1) covers intentional and negligent conduct alike without a separate maximum, section 17(2) of the Act on Administrative Offences caps the fine for a negligent offence at half of those amounts.
Section 17(4) of that Act provides that the fine should exceed the economic benefit the offender drew from the offence, and lets it exceed the statutory maximum where that is needed. Article 7 of Directive (EU) 2019/882 is the source of the manufacturers' obligations.
When LexLint raises it
When your app profile says your app distributes a software product.
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