Disproportionate burden

An exemption from accessibility requirements that applies only after a reasoned case-by-case assessment.

What is a disproportionate burden?

A disproportionate burden exists where accessibility requirements would impose an excessive organisational or financial load on a body or jeopardise its ability to fulfil its purpose or to publish information needed for its tasks (Recital 39 of Directive (EU) 2016/2102). Public bodies apply the requirements of Art. 4 only to the extent that they do not cause such a burden (Art. 5(1) of Directive (EU) 2016/2102).

For the assessment, the body takes into account the relevant circumstances, including (Art. 5(2) of Directive (EU) 2016/2102):

• the size, resources and nature of the body (point (a));
• 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 carries out the initial assessment itself (Art. 5(3)). If it relies on the exemption, it explains in the accessibility statement which requirements could not be met and, where appropriate, offers accessible alternatives (Art. 5(4)). Lack of priority, time or knowledge should not count as a legitimate reason. In each case the exemption should not go beyond what is strictly necessary, and the body should still make the affected content as accessible as possible (all Recital 39).

Germany and Austria compared

Both countries separate the rules for public bodies from those for companies. For companies, Annex 4 BFSG and Annex 4 BaFG list the same criteria in substance in points 1 to 3: net costs in relation to overall costs, costs and benefits in relation to the benefit for persons with disabilities, including the number and frequency of uses, and net costs in relation to net turnover.

Germany

Federal public bodies may exceptionally refrain from accessible design where it would place a disproportionate burden on them (§ 12a(6) BGG). Their accessibility statement then names the content that is not fully accessible, the reasons and, where appropriate, alternatives (§ 12b(2) no. 1 BGG). State law is not covered in this entry.

For companies, § 17 BFSG applies. The economic operator assesses the burden itself (para. 1). It documents the assessment and keeps it for five years from the last making available of the product or the last provision of the service; this does not apply to micro-enterprises dealing with products (para. 2). Service providers repeat the assessment for each category or type of service at least every five years, and also whenever the service changes or the competent authority requests it (para. 3). Anyone receiving external funds to improve accessibility cannot rely on the exemption (para. 4). The competent authority must be informed without delay; this does not apply to micro-enterprises (para. 5). The market surveillance authority checks the assessment and the application of the Annex 4 criteria (§ 21(3) BFSG for products, § 28(3) BFSG for services).

Austria

The WZG covers websites and apps of the federal government and federally linked bodies (§ 2(1) WZG). It exempts content where meeting the requirements of § 3 would place a disproportionate burden on the body (§ 2(3)(j) WZG). The assessment considers in particular the size, economic capacity and nature of the body, costs and benefits in relation to the benefits for persons with disabilities, and frequency and duration of use. The body answers enquiries about exempted, inaccessible content within two months (§ 4(3) WZG). The federal states and municipalities are governed by the state laws, which this entry does not cover.

For companies, § 18 BaFG applies. The economic operator assesses the burden against Annex 4 (para. 2), documents it, keeps the results for five years (para. 3) and informs the Sozialministeriumservice and the market surveillance authorities (para. 4). Paras. 3 and 4 do not apply to micro-enterprises dealing with products (para. 5). Service providers reassess at least every five years, and also when the service changes or when the Sozialministeriumservice requests it (para. 6). Receiving external funds to improve accessibility rules out reliance on the exemption (para. 7). The Sozialministeriumservice reviews the assessment and the criteria (§ 24(1) no. 1 BaFG).

Practical example

The example shows the order of the checks. An Austrian federal body has numerous PDF files, Word templates and PowerPoint presentations on its website.

1. First, it checks the fixed exemptions: files in office file formats published before 23 September 2018 that are not needed for ongoing administrative procedures (§ 2(3)(a) WZG), and archives that are neither needed for ongoing administrative procedures nor updated or revised after 23 September 2019 (§ 2(3)(i) WZG).
2. For the remaining documents, it weighs costs, benefits, frequency and duration of use (§ 2(3)(j) WZG). An application form used daily weighs differently in this assessment from a presentation accessed once. Lack of time should not be a legitimate reason (Recital 39 of Directive (EU) 2016/2102).
3. In the statement, it explains which requirements could not be met and, where appropriate, offers an accessible alternative (Art. 5(4) of Directive (EU) 2016/2102). Recording the assessment in a traceable way is advisable; Directive (EU) 2016/2102 and the WZG do not set out an express documentation duty for public bodies.

More on the assessment is in the article Disproportionate burden: when exemptions from accessibility are permitted. If you do not want to process your documents yourself, you can have accessible documents prepared. This entry is not legal advice and does not replace the case-by-case assessment.

See also

• Accessibility statement
• WZG (Austrian Web Accessibility Act)
• BFSG (German Accessibility Strengthening Act)
• BaFG (Austrian Accessibility Act)