Law of 8 March 2023 on the accessibility requirements applicable to products and services, duties of manufacturers, authorised representatives, importers and distributors of products

Article 1(1) of the Law of 8 March 2023 lists the products it covers: consumer general purpose computer hardware systems and their operating systems, payment terminals, self-service terminals dedicated to services covered by the Law (automated teller machines, ticketing machines, check-in machines and interactive information terminals, excluding terminals installed as integral parts of vehicles, aircraft, ships or rolling stock), consumer terminal equipment with interactive computing capability used for electronic communications services or for access to audiovisual media services, and e-readers.

Article 6(2) of the Law requires every product to meet the accessibility requirements of Annex I, Section I, of the Directive, and every product other than a self-service terminal to meet those of Section II. Article 6(1) of the Law provides that, subject to Article 16, economic operators place on the market only products that meet the accessibility requirements of Annex I to the Directive.

Article 4(2) of the Directive, which Article 6(2) of the Law implements, requires all products to comply with Section I of Annex I and all products except self-service terminals to comply with Section II. Article 34(1) of the Law applies it to the products of Article 1(1) that are placed on the market after its entry into force.

Article 9 of the Law requires a manufacturer to ensure that its products are designed and made to meet the applicable accessibility requirements, to draw up the technical documentation and carry out the conformity assessment procedure of Annex I to the Law, and, once conformity is shown, to draw up an EU declaration of conformity and affix the CE marking.

Annex I, paragraph 2, of the Law requires the technical documentation to make it possible to assess the product’s conformity with the accessibility requirements and, where the manufacturer relied on Article 15, to demonstrate that compliance would introduce a fundamental alteration or impose a disproportionate burden; the fundamental-alteration and disproportionate-burden limits are those of Article 16.

Annex I, paragraph 3, of the Law requires the manufacturer to take all measures necessary so that the manufacturing process and its monitoring ensure the conformity of the products with the technical documentation and with the accessibility requirements.

Annex I, paragraph 4, of the Law requires the manufacturer to affix the CE marking to each conforming product, to draw up a written EU declaration of conformity for each product model and to make a copy of it available to the competent authorities on request, and paragraph 5 lets the authorised representative fulfil those duties on the manufacturer’s behalf where the mandate specifies them.

Article 9(3) of the Law requires a manufacturer to keep the technical documentation and the EU declaration of conformity for five years after the product is placed on the market. Article 9(7) of the Law requires the product to come with instructions and safety information in at least one of the three administrative languages designated in the amended Law of 24 February 1984 on the language regime.

Article 9(8) of the Law requires a manufacturer that has reason to believe a product it placed on the market is not in conformity to take corrective measures immediately, to inform OSAPS immediately of a failure to meet the accessibility requirements, and to keep a register of non-conforming products and complaints.

Article 10 of the Law lets a manufacturer appoint an authorised representative by written mandate, which may not cover the manufacturer’s duty under Article 9(1) or the drawing up of the technical documentation.

Article 10(2) of the Law requires the mandate to authorise the representative at least to keep the EU declaration of conformity and the technical documentation at the disposal of OSAPS, the Customs and Excise Administration and the Police for five years, to supply information on reasoned request, and to cooperate on corrective measures.

Article 11 of the Law requires an importer to place only conforming products on the market and, before doing so, to ensure that the manufacturer has carried out the conformity assessment procedure, drawn up the technical documentation and affixed the CE marking. Article 11(3) of the Law bars an importer that has reason to believe a product is not in conformity from placing it on the market until it is brought into conformity, and requires the importer to inform the manufacturer and OSAPS.

Article 11(5) of the Law requires an importer to ensure that the product comes with instructions and safety information in a language easily understood by consumers and other end users, as determined by the Member State concerned. Article 11(7) of the Law requires an importer to keep a copy of the EU declaration of conformity at the disposal of OSAPS for five years and to ensure that the technical documentation can be supplied to OSAPS on request.

Article 12 of the Law requires a distributor to act with due care and, before making a product available, to verify that it bears the CE marking, comes with the required documents and with instructions and safety information in at least one of the three administrative languages, and that the manufacturer and importer have met their identification duties.

Article 12(3) of the Law bars a distributor that has reason to believe a product is not in conformity from making it available until it is brought into conformity, and requires the distributor to inform the manufacturer or importer and OSAPS.

Article 13 of the Law treats an importer or distributor as a manufacturer, subject to the manufacturer’s obligations under Article 9, when it places a product on the market under its own name or trademark or modifies a product already on the market in a way that may compromise conformity.

Article 14 of the Law requires the operators of Articles 9 to 12 to identify, on OSAPS’s request, any operator that supplied them with a product and any operator they supplied, and to be able to do so for five years from the supply.

Article 16(1) of the Law applies the accessibility requirements only to the extent that compliance does not require a significant modification that fundamentally alters the nature of the product or service and does not impose a disproportionate burden on the economic operators concerned. Article 16(2) of the Law requires economic operators to assess whether compliance would introduce a fundamental alteration or, on the criteria of Annex VI to the Directive, impose a disproportionate burden.

Article 2, point 18°, of the Law defines an economic operator as the manufacturer, the authorised representative, the importer, the distributor or the service provider. Article 16(3) of the Law requires economic operators to supply evidence for the assessment, to keep the results for five years from the last making available of a product, and to give OSAPS a copy of the assessment on request.

Article 16(4) of the Law exempts microenterprises dealing with products from the duty to supply evidence for the assessment, but they must give OSAPS the facts relevant to the assessment if it asks and they chose to rely on paragraph 1. Article 16(6) of the Law bars an economic operator from relying on the disproportionate-burden limit when it receives funding from sources other than its own resources, public or private, for improving accessibility.

Article 16(7) of the Law requires an operator that relies on paragraph 1 for a specific product to inform the market surveillance authorities of the Member State where the product is placed on the market, and excludes microenterprises from that duty. Article 14(1) of the Directive sets the same two limits.

Article 17(1) of the Law presumes products and services that conform to harmonised standards, or parts of them, whose references are published in the Official Journal of the European Union to conform to the accessibility requirements to the extent those standards cover them.

Article 17(2) of the Law presumes products and services that conform to technical specifications, or parts of them, adopted by the European Commission under the examination procedure of Article 27(2) of the Directive to conform to the accessibility requirements to the extent those specifications cover them.

Article 18 of the Law requires the EU declaration of conformity to follow the model of Annex III to Decision 768/2008/EC, to contain the elements of Annex I to the Law, to be kept up to date, and, where Article 16 was applied, to specify the accessibility requirements concerned.

Article 18(2) of the Law requires the technical documentation to be translated into one of the three administrative languages or into English, and the requirements on technical documentation to avoid imposing an undue burden on microenterprises and SMEs.

Article 18(3) of the Law requires a single EU declaration of conformity, naming the acts concerned and their publication references, where a product falls under several Union acts that require one, and Article 18(4) makes the manufacturer, by drawing up the declaration, assume responsibility for the product’s conformity. Article 19 of the Law requires the products it covers to bear the CE marking in accordance with the general principles of Article 30 of Regulation (EC) No 765/2008.

Article 20 of the Law requires the CE marking to be affixed visibly, legibly and indelibly on the product or its data plate, or otherwise on the packaging and accompanying documents, before the product is placed on the market. Article 21(1) of the Law applies to products a list of articles of Regulation (EU) 2019/1020 on market surveillance and compliance of products.

Among the provisions of Regulation (EU) 2019/1020 that Article 21(1) applies, Article 14(4), points (a), (b), (e) and (j), gives the authorities the power to require economic operators to provide documents, technical specifications, data or information on compliance, including access to embedded software, to require information on the supply chain and the distribution network, to enter the premises an operator uses for its business, and to acquire product samples, including under a cover identity.

Articles 26(1), 27 and 28(2) of Regulation (EU) 2019/1020, also applied by Article 21(1) of the Law, provide for the suspension of a product’s release for free circulation where it lacks the required documentation or marking or bears a CE marking affixed in a false or misleading manner, and for the refusal of its release where the market surveillance authorities conclude that it may not be placed on the market.

Article 22(1) of the Law has OSAPS ask the economic operator, where it finds a product non-compliant, to take all appropriate corrective measures within a reasonable period it sets, and to withdraw the product only if the operator has not taken adequate corrective measures in that period. Article 22(1) of the Law also lets any natural or legal person report the non-conformity of a product to OSAPS, and lets OSAPS act on its own initiative.

Article 22(1) of the Law requires the economic operators concerned to cooperate fully with OSAPS in its evaluation of the product, and applies Article 18 of Regulation (EU) 2019/1020 to the corrective and withdrawal measures, under which the operator is given the opportunity to be heard within a period of not less than 10 working days before such a measure is taken, save in urgency.

Article 22(4) of the Law has OSAPS take all appropriate provisional measures to prohibit or restrict the making available of the product on the Luxembourg market, or to withdraw it, where the operator does not take adequate corrective measures in the period set. Article 22(3) of the Law requires the economic operator to ensure that all appropriate corrective measures are taken for all the products concerned that it made available on the market throughout the European Union.

Article 24(1) of the Law has OSAPS invite an economic operator to put an end to a formal non-conformity such as a missing or wrongly affixed CE marking, a missing or incorrect EU declaration of conformity, or missing or incomplete technical documentation.

Article 24(2) of the Law has OSAPS, where the formal non-conformity persists, decide all appropriate measures to restrict or prohibit the making available of the product or to ensure its withdrawal, where necessary together with the Customs and Excise Administration.

Article 28(1) of the Law lets OSAPS prohibit or restrict the making available of a non-conforming product, ban it temporarily during checks, order or organise its recall, withdrawal or modification and its destruction, and prohibit offering for sale a product that misleads on its real characteristics. Article 28(5) of the Law makes the decisions of OSAPS under paragraphs 1 and 2 subject to an appeal for reformation before the administrative tribunal within three months of notification.

Article 29 of the Law has the offences established by OSAPS officials of salary categories A and B and by agents of the Customs and Excise Administration from the grade of brigadier principal, who have the status of judicial police officers in the exercise of those functions.

Article 30(5) of the Law puts the costs of the market surveillance that established a non-conformity on the manufacturer or its representative, and on the importer or otherwise the reseller where the manufacturer or representative is not established in the European Union. Article 32(1) of the Law lets OSAPS fine an economic operator EUR 250 to EUR 15,000 for refusing to supply documents or information requested in market surveillance, or for obstructing the market surveillance.

Article 32(2) of the Law lets OSAPS fine an economic operator EUR 250 to EUR 15,000 for not complying with its decisions under Article 24(2) and Article 25(3).

Article 32(3) of the Law makes the administrative fines payable within thirty days of notification of the written decision, notwithstanding an appeal, and opens an appeal for reformation before the administrative tribunal within three months of notification; Article 32(4) entrusts their recovery to the Administration de l’enregistrement, des domaines et de la TVA (Registration Duties, Estates and VAT Authority).

Article 33(1) of the Law punishes an economic operator that contravenes Article 6(1), (2), (3), (5), (6) or (7) or Articles 9, 11, 12, 13 or 15 with a fine of EUR 251 to EUR 500,000, except in the cases of Article 6(4) and Article 16(1). Article 33(2) of the Law punishes an operator already sentenced to a fine under paragraph 1 with a fine of EUR 500 to EUR 1,000,000 as a repeat offender.

Article 33(3) of the Law counts final convictions in other Member States towards repeat offending where the offences are also punishable under Directive (EU) 2019/882 as transposed there. Article 33(4) of the Law lets the courts order the confiscation and destruction of the goods used for the offence and the confiscation of illicit profits.

Article 16 of the Criminal Code sets the fine in correctional matters at EUR 251 at least, the floor of Article 33(1), and Article 36 of the Criminal Code provides that the fine for a legal person in correctional matters is at least EUR 500 and that its maximum is double the maximum the law punishing the offence sets for natural persons, so EUR 1,000,000 for a legal person under Article 33(1) and EUR 2,000,000 for a legal person that is a repeat offender under Article 33(2).

Article 35(1) of the Law applies amendments to Annexes I and VI of the Directive from the day the corresponding European Union acts enter into force. Article 35(2) of the Law requires the minister to publish a notice in the Journal officiel of the amendments that have taken effect, with a reference to the act published in the Official Journal of the European Union.