Disproportionate burden: when exemptions from accessibility are permitted

What does disproportionate burden mean for accessibility?

A disproportionate burden is the statutory ground for not meeting individual accessibility requirements because compliance would place an excessive burden on a public body or a company. For websites and apps of public sector bodies, this is governed by Art. 5 of Directive (EU) 2016/2102; for products and services, by Art. 14(1)(b) of Directive (EU) 2019/882.

Art. 5(1) of Directive 2016/2102 requires the requirements to be applied to the extent that they do not impose a disproportionate burden. The exemption therefore reaches only as far as the burden does. Recital 39 understands this to mean measures that would impose an excessive organisational or financial burden on a body, or would jeopardise its ability to fulfil its purpose or to publish information needed for or relevant to its tasks and services. Affected content should nevertheless be made as accessible as possible, and all other content fully accessible (recital 39).

Which criteria apply to public sector bodies?

Under Art. 5(2) of Directive 2016/2102, public sector bodies take into account, among other things, the size, resources and nature of the body (point (a)) and the estimated costs and benefits for the body in relation to the estimated benefits for persons with disabilities, taking into account the frequency and duration of use of the website or app (point (b)). The body itself carries out the initial assessment (Art. 5(3)). Where it invokes the exemption for a specific website or app, it explains in the accessibility statement under Art. 7 which parts of the requirements could not be complied with and, where appropriate, proposes accessible alternatives (Art. 5(4)).

Austria

The WZG applies only to websites and apps of the federal government and federal-related bodies (§ 2(1) WZG). States and municipalities are covered by the state laws. The table shows Upper Austria and Vienna as examples; the other state laws reviewed are compared in the article on state laws for municipalities. Instead of resources, the WZG, the Oö. ADG and the Wiener ADG refer to the economic capacity of the legal entity.

Germany

Federal public bodies may, by way of exception, refrain from accessible design where this would impose a disproportionate burden on them (§ 12a(6) BGG). Neither the BGG nor BITV 2.0 contains a separate list of criteria. Where, by way of exception, content has not been made fully accessible, the statement names the content that is not fully accessible, the reasons and, where appropriate, accessible alternatives (§ 12b(2) no. 1 BGG). Under § 7(4) BITV 2.0, it must contain the mandatory content set out in Section 1 of the Annex to Implementing Decision (EU) 2018/1523. The statement is based on an actual assessment of compliance with the requirements (§ 7(5) BITV 2.0); it must be updated annually and with every significant change (§ 7(6)). The body replies to notifications or requests within one month at the latest (§ 12b(4) BGG). This article does not cover the law of the German Länder.

What applies to companies under the BFSG and BaFG?

Companies need only meet the accessibility requirements to the extent that doing so does not impose a disproportionate burden under Annex 4; they carry out the assessment themselves. The framework is set by Art. 14(1) to (3) of Directive 2019/882, with an assessment under Annex VI, documentation and retention for five years. Microenterprises dealing with products are exempt from the documentation requirement (Art. 14(4)).

Germany

• The requirements apply only insofar as no disproportionate burden under Annex 4 arises; the economic operator assesses this itself (§ 17(1) BFSG).
• It documents the assessment, keeps it for five years from the last time the product was made available or the service was provided, and presents it to the market surveillance authority on request (§ 17(2) sentences 1 and 2).
• Microenterprises dealing with products do not have to document the assessment, but they submit the relevant facts on request (§ 17(2) sentences 3 and 4).
• Service providers carry out the assessment for each category or type of service at least every five years, and also when the service is changed or when requested (§ 17(3)).
• Public or private funding other than the operator's own resources for improving accessibility rules out reliance on the exemption (§ 17(4)).
• An operator relying on the exemption for a specific product or service informs the competent authority without delay; this does not apply to microenterprises (§ 17(5)).
• The market surveillance authority checks the assessment and the application of the criteria (§ 21(3) for products, § 28(3) for services). Consumers receive the assessment on application unless grounds of confidentiality preclude this (§ 21(4), § 28(4)).

Annex 4 BFSG sets out three criteria: net costs in relation to total costs (no. 1), costs and benefits in relation to the benefit for persons with disabilities, taking into account the number and frequency of uses (no. 2), and net costs in relation to net turnover (no. 3).

Austria

§ 18 BaFG has a parallel structure. The economic operator carries out the assessment under Annex 4 BaFG (§ 18(2)), documents it, keeps all relevant results for five years and provides a copy to the Sozialministeriumservice on request (§ 18(3)). If it relies on the exemption for a specific product or service, it sends information to the Sozialministeriumservice and the competent market surveillance authorities (§ 18(4)). Paragraphs 3 and 4 do not apply to microenterprises dealing with products; they submit the relevant facts on request (§ 18(5)). Service providers repeat the assessment when the service changes, when requested and at least every five years (§ 18(6)). Outside funding for improving accessibility rules out reliance on the exemption (§ 18(7)). The Sozialministeriumservice checks the assessment, including the application of the criteria in Annex 4 (§ 24(1) BaFG). More on this in the articles on the BFSG and the BaFG.

What does not count as a disproportionate burden?

Lack of priority, time or knowledge should not be regarded as legitimate reasons (recital 39 of Directive 2016/2102, recital 66 of Directive 2019/882). Further limits follow from the statutory texts:

• No blanket waiver: The exemption applies only to the extent of the burden (Art. 5(1) of Directive 2016/2102) and, for the content concerned, should not go beyond what is strictly necessary in the individual case (recital 39).
• No cost argument without weighing: The criteria set costs against the benefit for persons with disabilities (Art. 5(2)(b) of Directive 2016/2102; Annex 4 no. 2 BFSG, Annex 4 no. 2 BaFG).
• No reliance on missing content management systems: There should be no legitimate reasons for not procuring or developing software systems for managing content accessibly (recital 39 of Directive 2016/2102).
• Missing knowledge counts as a cost item: Annex 4 no. 1(a)(bb) and (ee) BFSG and Annex 4 no. 1(a)(bb) and (ee) BaFG include staff training and familiarisation with the legal position in the net costs.
• No reliance where funding is received: § 17(4) BFSG, § 18(7) BaFG, Art. 14(6) of Directive 2019/882.

Art. 2 of Directive 2016/2102 allows Member States to go beyond the minimum requirements. The wording of the applicable law therefore remains decisive.

How often do public bodies in Austria rely on it?

In 52.5 % of the accessibility statements evaluated in the 2025 monitoring, the body stated that individual barriers could not be removed because of a disproportionate burden; in 47.5 % it did not (FFG, interim report 2025). The statements were collected from the websites and apps of federal, state and municipal public bodies checked on a sample basis. Of the websites and apps checked, 64 % had published a statement at all (2024: 57 %).

A frequent claim was that audio description could not be provided for videos hosted on YouTube. Several bodies stated that PDF documents could not be published accessibly by default. The report does not show whether such statements are based on an assessment of the specific content concerned; under recital 39 of Directive 2016/2102, the exemption should not go beyond what is strictly necessary for the content concerned in the individual case. The structure of the statement is shown in the article on the accessibility statement; the testing methodology is explained in the article on monitoring.

How do you document the assessment in a traceable way?

Traceable documentation follows the statutory criteria point by point and records, for each affected item of content, which requirement is not met and why. The following template is a structuring aid, not legal advice:

1. Content: document, page or function and the requirement not met.
2. Legal basis: for example § 2(3)(j) WZG, § 15b(1) no. 10 Oö. ADG, § 10a(1)(i) Wiener ADG, § 12a(6) BGG, § 17 BFSG or § 18 BaFG.
3. Details of the organisation: size, resources and nature (Art. 5(2)(a) of Directive 2016/2102), in Austria economic capacity instead of resources (§ 2(3)(j) WZG); for companies, net costs in relation to total costs and net turnover (Annex 4 nos. 1 and 3 BFSG, nos. 1 and 3 BaFG).
4. Costs: split into one-off organisational costs and ongoing costs (Annex 4 no. 1(a) and (b) BFSG).
5. Benefits: benefits for persons with disabilities, frequency and duration of use or number of uses (Art. 5(2)(b) of Directive 2016/2102; Annex 4 no. 2 BFSG, no. 2 BaFG).
6. Result and scope: which requirements are dropped and which continue to apply; funding checked (§ 17(4) BFSG, § 18(7) BaFG).
7. Alternative: accessible substitute and disclosure in the statement (Art. 5(4) of Directive 2016/2102, § 12b(2) no. 1 BGG, § 10a(3) Wiener ADG).
8. Date and review: for services no later than after five years (§ 17(3) BFSG, § 18(6) no. 3 BaFG), for federal bodies in Germany with the annual update of the statement (§ 7(6) BITV 2.0).

If you would rather provide documents accessibly than exempt them, Compliance-Kit can prepare accessible documents for you.