IrelandEuropean Union (Accessibility Requirements of Products and Services) Regulations 2023, fundamental alteration and disproportionate burden, assessment, record-keeping and notification duties of an economic operator that relies on the limit
S.I. No. 636 of 2023 Regs. 15, 20(2) and 24(2) and Schedule 4, fundamental alteration and disproportionate burden under the European Union (Accessibility Requirements of Products and Services) Regulations 2023
In force since .
An accessibility requirements rule binding public and private bodies.
- Instrument type
- a regulation made under an act
What it requires
- If you want to rely on the fundamental-alteration or disproportionate-burden limit on the accessibility requirements, carry out an assessment first; the requirements apply to your product or service only to the extent that compliance would not fundamentally alter its basic nature or impose a disproportionate burden on you (Reg. 15(1) and (2)).
- Base the disproportionate-burden assessment on the criteria in Schedule 4, including the ratio of the net costs of compliance to the overall costs of manufacturing, distributing, importing or providing the product or service, the estimated costs and benefits against the benefit for persons with disabilities, and the ratio of the net costs of compliance to your net turnover (Reg. 15(3) and Schedule 4).
- Document the assessment, keep a written record of its relevant results for 5 years after the product was last made available or the service was last provided, and give a copy to the market surveillance authority for a product or the relevant compliance authority for a service on request (Reg. 15(4)).
- If you are a microenterprise (an enterprise which employs fewer than 10 persons and which has an annual turnover not exceeding EUR 2 million or an annual balance sheet total not exceeding EUR 2 million) that deals with products and relies on the limit, you need not keep the record under Regulation 15(4) but must give the market surveillance authority the facts relevant to the assessment if it asks (Reg. 15(5) and (6)).
- If you provide a service and rely on the disproportionate-burden limit, renew the assessment for each category or type of service when the service you offer is altered or the relevant compliance authority asks, and in any event at least every 5 years (Reg. 15(7)).
- Do not rely on the disproportionate-burden limit if you receive funding, public or private, from sources other than your own resources that is provided for the purpose of improving accessibility (Reg. 15(8)).
- If you place a product on the market or provide a service in the State and rely on the limit, inform the market surveillance authority for a product or the relevant compliance authority for a service that you do; this duty does not apply to a microenterprise (Reg. 15(9) and (10)).
- If a relevant authority asks for a copy of the assessment or for the facts relevant to it and you do not provide it in time, the authority may direct you to provide the information or documentation concerned (Reg. 15(11)).
These lines are LexLint's reading of the law's text.
If you get it wrong
Criminal exposureYes
Criminal exposure note
Failing to comply with paragraph (4) or (9) of Regulation 15, or failing to comply within the period specified with a direction given under the Regulations, is an offence (Reg. 32(1) and (3)); on conviction on indictment the penalty is a fine of up to EUR 60,000 or imprisonment for up to 18 months or both (Reg. 32(6)).
Penalty structure
Regulation 32(6) sets, for a person who commits an offence under the Regulations, a class A fine or imprisonment for up to 6 months or both on summary conviction, and a fine of up to EUR 60,000 or imprisonment for up to 18 months or both on conviction on indictment. The EUR 60,000 figure is the indictment ceiling. Regulation 32(7) tells the court to have regard to the seriousness of the failure to comply, the number of units of products or services to which it related and the number of persons affected.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 60,000
Who enforces it
Enforcement body
The market surveillance authority for a product and the relevant compliance authority for a service, each of which receives a copy of the assessment on request and, where the economic operator has relied on Regulation 15, checks that the assessment was conducted, reviews it and its results and checks compliance (Regs. 15(4)(c), 20(2) and 24(2))
What this law does
Regulation 15(1) applies the accessibility requirements only to the extent that compliance does not require a significant change that results in the fundamental alteration of the basic nature of the product or service, or result in a disproportionate burden on the economic operator.
Regulation 15 gives effect to Article 14 of Directive (EU) 2019/882, under which the accessibility requirements apply only to the extent that compliance does not require a fundamental alteration or impose a disproportionate burden. An economic operator may rely on Regulation 15(1) only where it has carried out an assessment whose result is that compliance would introduce a fundamental alteration of the basic nature of the product or service or impose a disproportionate burden.
The assessment of disproportionate burden must be based on the criteria in Schedule 4. Schedule 4 sets as one criterion the ratio of the net costs of compliance with accessibility requirements to the overall costs of manufacturing, distributing or importing the product or providing the service. Schedule 4 sets as another criterion the ratio of the net costs of compliance with accessibility requirements to the net turnover of the economic operator.
An economic operator that relies on Regulation 15(1) must document the assessment, keep a written record of its relevant results for 5 years after the product was last made available or the service last provided, and give a copy to the market surveillance authority for a product or the relevant compliance authority for a service on request. Regulation 15(5) disapplies the documentation duty in Regulation 15(4) to a microenterprise that deals with products.
A service provider that relies on the disproportionate-burden limit must renew the assessment for each category or type of service when the service offered is altered or the relevant compliance authority asks, and in any event at least every 5 years. An economic operator that receives funding, public or private, from sources other than its own resources for the purpose of improving accessibility cannot rely on the disproportionate-burden limit.
An economic operator that places a product on the market or provides a service in the State and relies on Regulation 15(1) must inform the market surveillance authority or the relevant compliance authority, and Regulation 15(10) disapplies that duty to microenterprises.
Regulation 20(2) requires the market surveillance authority, where an economic operator has relied on Regulation 15, to check that the assessment was conducted, review it and its results, including the correct use of the Schedule 4 criteria, and check compliance with the applicable accessibility requirements. Regulation 24(2) imposes the same checks on the relevant compliance authority for a service.
A person who fails to comply with paragraph (4) or (9) of Regulation 15 commits an offence, punishable on summary conviction by a class A fine or imprisonment for up to 6 months or both, and on conviction on indictment by a fine of up to EUR 60,000 or imprisonment for up to 18 months or both. A class A fine is a fine not exceeding EUR 5,000.
When LexLint raises it
When your app profile says your app ships a consumer interface or distributes a software product.
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