Accessibility Measures (European Accessibility Act) Regulations, enforcement: market surveillance of products, compliance of services, consumer action and penalties

Regulation 19 applies Article 15(3), articles 16 to 19, article 21, articles 23 to 28 and article 29(2) and (3) of Regulation (EC) No 765/2008 to products. When an economic operator has relied on regulation 14, the market surveillance authority checks that the assessment was conducted, reviews it and its results, including the use of the Annex VI criteria, and checks compliance with the applicable accessibility requirements.

Regulation 19(3) has the market surveillance authority make the information it holds on an economic operator's compliance and on its regulation 14 assessment available to consumers on request, in an accessible format, except where confidentiality under article 19(5) of Regulation (EC) No 765/2008 prevents it.

Where the market surveillance authority has sufficient reason to believe that a product does not comply, it evaluates the product, requires corrective action within a reasonable period, and requires withdrawal from the market only if the economic operator fails to take adequate corrective action in that period.

If the economic operator still does not take adequate corrective action, the market surveillance authority takes all appropriate provisional measures to prohibit or restrict the product being made available on the national market or to withdraw it, and informs the Commission and the other Member States. The economic operator must ensure that all appropriate corrective action is taken in respect of all the products it has made available on the market throughout the Union.

Where the market surveillance authority finds a formal non-compliance, such as a missing or wrongly affixed CE marking, a missing or incorrect EU declaration of conformity, incomplete technical documentation or absent, false or incomplete identification details, it requires the economic operator to put an end to it and, if it persists, takes appropriate measures to restrict or prohibit the product or have it withdrawn.

For services, regulation 23 requires the market surveillance authority to establish and periodically update procedures to check compliance of services, including the regulation 14 assessment, to follow up complaints and reports of non-compliance, and to verify that the economic operator has taken the necessary corrective action.

Regulation 26(1) requires the market surveillance authority to undertake efforts in terms of article 32A of the Equal Opportunities (Persons with Disability) Act to ensure adequate and effective compliance with the Regulations.

Regulation 26(2) allows consumers, and public bodies or private associations, organisations or other legal entities with a legitimate interest acting on their behalf, to take or support appropriate action to ensure that the consumers' rights under the Regulations are complied with, in terms of article 3 of the United Nations Convention on the Rights of Persons with Disabilities Act and through any other means of redress available.

Article 3(1) of the United Nations Convention on the Rights of Persons with Disabilities Act lets a person who alleges discrimination on the basis of disability, in respect of any of the substantive Convention rights, submit a petition to the UNCRPD Redress Panel. Article 3(2) of that Act lets such a claim be brought as a civil action under article 33E(1) of the Equal Opportunities (Persons with Disability) Act when the remedy sought includes a remedy of a pecuniary nature.

Article 33E(1) of the Equal Opportunities (Persons with Disability) Act sends to the First Hall of the Civil Court a person seeking a remedy of a pecuniary nature exceeding EUR 5,000, or a person other than one described in article 33B(4). Under article 33D a petitioner or defendant may appeal from a decision of the UNCRPD Redress Panel to the Administrative Review Tribunal within twenty days from the date the decision is communicated.

Regulations 26 and 27 do not apply to procurement procedures subject to the Public Procurement Regulations, the Public Procurement of Entities operating in the Water, Energy, Transport and Postal Services Sectors Regulations, the Emergency Procurement Regulations or the Concession Contract Regulations.

Regulation 27 provides that the penalties for infringements, which take into account the seriousness of the non-compliance, the number of units of products or services concerned and the number of persons affected, are to be prescribed and implemented by the market surveillance authority in terms of article 32 of the Equal Opportunities (Persons with Disability) Act.

Article 30(2) of Directive (EU) 2019/882, which regulation 27 implements, requires penalties that are effective, proportionate and dissuasive and accompanied by effective remedial action in case of non-compliance of the economic operator.

Article 22(1)(v) of the Equal Opportunities (Persons with Disability) Act makes the Commission for the Rights of Persons with Disability the market surveillance authority under Directive (EU) 2019/882, acting through its Investigations Unit and Enforcement Unit.

Article 32(2) of that Act lets the Commissioner investigate on a written complaint lodged by any person aggrieved by the act or by any person referred to in article 33A. Article 32(4)(b) lets the Enforcement Unit impose an administrative fine in accordance with the provisions of that Act and order the cessation of an act or omission in breach of any law it is entitled to enforce.

Article 32(5) gives the Commission a right of entry into any premises, public or private, to carry out investigations, inspections or surveys. Article 32(7) directs the Minister to establish by regulations penalties for refusing entry or obstructing inspection when a warrant is produced, and for obstructing, threatening, attacking or impeding an officer of the Commission.

Article 32A lets the Enforcement Unit act after authorisation by the Investigations Unit and, where there is prima facie evidence of an immediate hardship for the aggrieved party, take urgent interim measures including the immediate cessation of the act or omission. Article 32B requires the Investigations Unit, in conducting its investigations, to be guided by the principle of reasonableness established in article 20.

Article 20(2) weighs whether an action could be undertaken without unjustifiable hardship by factors that include its nature and cost and the overall financial resources of the person concerned. Article 32C requires the Minister to enact provisions on administrative fines by regulations made under that Act. An appeal from a decision of the Investigations Unit lies to the Administrative Review Tribunal by application filed within twenty days from notification of the decision. Article 32F lets the Tribunal confirm or annul the decision appealed from, in whole or in part.