Executive Summary

This Proposal presents an opportunity for the European Commission and the EU Member States to implement the United-Nations Convention on the Rights of Persons with Disabilities (UNCRPD). The political will and ambition of the European Commission and subsequently that of the European Parliament and the Council will be a test of the real commitment to this aim. We strongly believe that only a Proposal with a wider scope and a binding enforcement mechanism could be considered as a first step in implementing the accessibility provisions of the UN Convention.

Scope of the Proposal

We believe that the scope of the Proposal is too restrictive and should be widened, if we are to provide a systematic change.

We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts 1. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff.

Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services 2 and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 3, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.

Enforcement Mechanism

We believe that without an effective enforcement mechanism and an efficient monitoring system, involving persons with disabilities and their representative organisations, this proposal for a Directive will not be able to ensure the accessibility of the websites concerned.

To this aim we recommend that a public enforcement body, responsible for the implementation of the law should be established or appointed in each Member State.

Introduction

The European Disability Forum (EDF) is the European umbrella organisation representing the interests of 80 million persons with disabilities in Europe. The mission of EDF is to ensure persons with disabilities full access to fundamental and human rights through their active involvement in policy development and implementation in Europe. EDF works closely to the institutions of the European Union (EU), the Council of Europe and the United Nations.

EDF Welcomes the Proposal for a Directive on the Accessibility of Public Sector Bodies' Websites 4

In the framework of the EDF Top Campaign on the theme of "Freedom of Movement", one of our objectives is to promote the adoption of a legally binding legislation covering the accessibility of websites. Having repeatedly stressed that accessibility is a prerequisite for the full participation of persons with disabilities in all aspects of life, EDF welcomes the legislative proposal issued on 3rd December 2012 as a limited but first positive step towards the removal of all barriers to access internet products and services in the internal market. It demonstrates a commitment from the European Commission to develop concrete measures to remove barriers faced by persons with disabilities in the digital single market. This is also part of the implementation of the European Commission commitment under the Digital Agenda for Europe (DAE) action 64 to "ensure that public sector websites (and websites delivering basic services to citizens) are fully accessible by 2015" 5.

In parallel, EDF also campaigns for the adoption of an ambitious and legally binding European Accessibility Act covering as many services and goods as possible, including information and communication technologies (ICTs). We believe that a European Accessibility Act with a strong ICT dimension and a Directive on accessibility of websites are complementary tools to deliver an end-to-end digital accessibility to persons with disabilities.

Accessibility of websites is vital for persons with disabilities

Access to the Information Society and Information and Communication Technologies (ICTs), of which access to the web is a crucial part due to the convergence of technologies, is a fundamental right that everyone should enjoy including persons with disabilities. It is indispensable to enable us to lead an independent life and fully participate in society on an equal basis with our peers. ICTs and the web represent a real opportunity to combat isolation and social exclusion. They can play a crucial role in the everyday life of persons with disabilities, who use them to a higher extent than people in general. ICTs and the web also represent gateways to education, employment and leisure. They can enable users with disabilities to participate in all aspects of social life.

Technologies may also support changes in society. On the one hand, Europeans live longer and might acquire in many cases age related impairments, nonetheless they increasingly decide to live independently at home. On the other hand, there is a slow but on-going change of the social situation of persons with disabilities: more babies born with a disability live longer, more persons with disabilities are included in mainstream education and many leave institutions in order to lead an independent life. All those persons legitimately want to improve their life opportunities and look for accessible goods and services that suit their needs. ICTs and the web will not only be an answer to the growing demands of persons with disabilities, but also a way for public authorities to limit costs and a real market opportunity for the industry.

Accessibility of Websites in the United-Nations Convention on the Rights of Persons with Disabilities (UNCRPD) 6

The UNCRPD has been ratified by the EU and entered into force on 22nd January 2011. Except for Ireland, Finland and the Netherlands, all EU Member States have ratified it as well.

The UNCRPD recognises accessibility as a general principle (Article 3), which is of universal application and serves for the interpretation of the entire text of the Convention. Additionally, the overall purpose of Article 9 is to enable persons with disabilities to live independently and participate fully in all aspects of life. The UNCRPD is very clear on what States Parties should do to fulfil the obligation: they shall take appropriate measures to ensure to persons with disabilities access, "on an equal basis with others, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public".

Thus, accessibility must be understood as a positive obligation because refraining from violating the right to accessibility is not enough to fulfil the principle. This also means that dedicated resources must be invested and progressive steps must be taken to live up to the UNCRPD requirements. These steps must be deliberate, concrete and targeted as clearly as possible towards the fulfilment of the obligations.

Moreover, article 21 of the UNCRPD states that freedom of expression and opinion includes the "freedom to seek, receive and impart information and ideas" with appropriate and accessible information and communication technologies, including the web.

Therefore, we understand accessibility of websites as a basic requirement for persons with disabilities to access online services provided to the public and to exercise their freedom of access to information.

In this context, this Proposal presents an opportunity for the European Commission and the EU Member States to implement the UNCRPD. The political will and ambition of the European Commission and subsequently that of the European Parliament and the Council will be a test of the real commitment to this aim. We strongly believe that only a Proposal with a wider scope and a binding enforcement mechanism could be considered as a first step in implementing the accessibility provisions of the UN Convention.

Accessibility under an Internal Market Approach

We understand and strongly support the need to base this Proposal for a Directive on article 114 of the Treaty on the Functioning of the European Union (TFEU) 7.

Economic and Social Reasoning of an Internal Market Legal Approach

This proposal uses an Internal Market legal basis (TFEU article 114). We accept this approach because we believe that the diverging legal obligations and policies put in place by the EU Member States fragment the internal market of web-accessibility. This implies additional costs for market players and consumers and impedes the free movement of goods and services used to provide the accessibility of websites.

Additionally, we would like to highlight that this is not just a merely economic issue since Article 3 of the Treaty on European Union (TEU) 8 suggests that the role of the market is, among others, social inclusion, equality, non-discrimination and social justice. Thus, instead of focusing on the financial benefits alone, we believe that the European institutions should, equally, consider and take into account the societal benefits in addition to the economic and consumer point of view.

Web-Accessibility as a Technical Complex Issue

We understand the decision of the European Commission to use the internal market as the main legal basis for this Proposal. This choice of the Commission, nonetheless, should have aimed at guaranteeing the right of persons with disabilities to access websites in line with the UNCRPD, by increasing the number of accessible website providers and by eliminating barriers to the functioning of the single market.

We also believe that the EU legislation should take advantage of the greater discretion that was granted by the Court of Justice of the EU when deciding on the most appropriate methods of harmonisation of national legislation in the cases of technically complex issues, what web-accessibility definitely is. The European Commission should have used this discretion to ensure that its proposal for a Directive would cover as many types of websites as possible to avoid a heterogeneous implementation of the UNCRPD that would be likely to obstruct the free movement of accessible website providers and lead to a fragmentation of the single market.

Proportionality and Subsidiarity Principles

We think that the Proposal has passed the test of subsidiarity because there are national laws which cause barriers to the free movement of web-accessibility goods and services. Thus the EU has the competence to adopt legislation. As web-accessibility is a technically complex issue (refer to 2.4.2), the method that the EU will choose to harmonise national laws is discretional, which implies that it can either harmonise minimally, exhaustively, or choose another way. Thus, the Court allows in these cases the EU to take a more ambitious view rather than being afraid that the proposal might cover too many websites. Moreover, because this is a technical complex issue, the Court showed a preference to harmonise national laws as exhaustively as possible in order to avoid the emergence of barriers in the internal market.

Digital Accessibility as a Way out of the Crisis towards a Competitive Accessible EU Market

The creation of a harmonised internal market for accessibility of websites will generate strong added-value for both European consumers and market players operating in the EU. Furthermore, an accessible internal market would contribute to a smart, sustainable and inclusive growth and to achieve the Europe 2020 Strategy goals.

With the adoption and ratification of the UNCRPD by countries worldwide, the Disability Movement is increasingly aware of the right to access websites and services and we think that this proposal could encourage public authorities, ICT manufacturers and service providers to ensure web-accessibility and making the EU the leading region at world level in this field.

Scope of the Proposal

EDF welcomes the EU commitment to address accessibility of websites with this proposal for a Directive on the accessibility of public sector bodies' websites. However, if the aim is to provide a systematic change in this area, we would like to stress that the scope of the Proposal is too restrictive as it covers only 12 types of public sector bodies' websites.

Key sectors, such as child care, education, public transport, cultural activities and local and general elections fall outside the scope of the proposed Directive and the list is by far not exhaustive. The European Commission refers to the so-called spill-over effect, thanks to which the Directive will have an impact on public bodies' websites not explicitly covered, as public bodies will be encouraged to make the websites falling outside the scope of the Directive accessible at the same time as, or following the ones covered. This is unlikely, as the causal links assumed to bring about the spill-over effect may be either weak or non-existing. The proposal is also incomplete with respect to services provided by the sectors chosen. For instance, it is good to ensure accessibility of websites for category (10) "enrolment in higher education and university", but it is obvious that a student is likely to resort to this possibility only once a year. This would not make sense if the accessible website would not allow, for instance, also the communication between the teachers and the students as well as the access to all the didactic content during the whole period of study.

We would like to remind the European Institutions that action 64 of the DAE requires "public sector websites and websites providing basic services to citizens [to be] fully accessible by 2015" and that under the key actions of the Staff Working Document accompanying the European Disability Strategy 2010-2020 (COM (2010) 636 final) 9, the European Commission commits to "make proposals by 2011 that will make sure that public sector websites (and websites providing basic services to the public) are fully accessible by 2015".

In practice, a too narrow scope of the Directive would imply the existence in the EU Member States of a policy environment in which there could be different requirements for different types of websites and that services falling within the scope and services falling outside the scope would be subject to varying accessibility requirements, despite provided on the same body website. This could make the implementation of the Directive more difficult, since part(s) of the same website would be covered, while the rest would not. Furthermore, the current restricted scope will not avoid the fragmentation in the public sector, while fragmentation is detrimental to the growth and the competitiveness of the single EU market.

There is a clear gap between the approach of the proposal and the rapidly changing information and communication reality of today. The EU Member States have since then developed heterogeneous strategies for the digitalisation of the public services, which is a cause of fragmentation in the field.

We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff.

Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport

EDF Proposals for Amendments

Title Title
Proposal for a Directive of the European Parliament and of the Council on the accessibility of public sector bodies' websites Proposal for a Directive of the European Parliament and of the Council on the accessibility of public sector bodies' websites and publicly available websites
Justification If we want to achieve a systematic change in the area of accessibility of websites, the scope of this Proposal should be widened. We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff. Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.
Article 1 Subject matter and scope Article 1 Subject matter and scope
2. It lays down the rules according to which Member States shall make accessible the content of websites belonging to public sector bodies, the types of which are specified in the Annex. 3. Member States may extend the application of this Directive to other types of public sector websites than those referred to in paragraph 2. 2. It lays down the rules according to which Member States shall make accessible the functionality and content of websites, including any items for downloading, of: (a) websites and web-based services belonging to public sector bodies, the types of which are specified in the Annex. (b) publicly available websites and web-based services 3. Member States may extend the application of this Directive to any other types of public sector websites than those referred to in paragraph 2.
Justification If we want to achieve a systematic change in the area of accessibility of websites, the scope of this Proposal should be widened. We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff. Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.
Article 2 Definitions Article 2 Definitions
For the purpose of this Directive, the following definitions shall apply: (9) Public available websites means a website made available to the public.
Justification If we want to achieve a systematic change in the area of accessibility of websites, the scope of this Proposal should be widened. We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff. Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.
Article 6 Additional measures Article 6 Additional measures
2. Member States shall take measures to facilitate the application of the web-accessibility requirements as defined in Article 3 to all public sector bodies' websites beyond those concerned, in particular, to public sector bodies' websites covered by existing national laws or relevant measures on web-accessibility. 2. Member States shall take measures to facilitate the application of the web-accessibility requirements as defined in Article 3 to all public sector bodies' websites beyond those concerned, in particular, to public sector bodies' websites covered by existing national laws or relevant measures on web-accessibility.
Justification If we want to achieve a systematic change in the area of accessibility of websites, the scope of this Proposal should be widened. We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff. Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.
Annex Annex
Types of public sector bodies' websites(as referred to in Article 1(2)) 1. Income taxes: declaration, notification of assessment 2. Job search services by labour offices 3. Social-security benefits: unemployment benefits, child allowances, medical costs (reimbursement or direct settlement), student grants. 4. Personal documents: passports or driving license 5. Car registration 6. Application for building permission 7. Declaration to police, e.g. in case of theft 8. Public libraries, e.g. catalogues and search tools 9. Request and delivery of birth or marriage certificates 10. Enrolment in higher education or university 11. Notification of change of residence 12. Health-related services: interactive advice on the availability of services, online services for patients, appointments. Types of public sector bodies' websites(as referred to in Article 1(2)) 1. Income taxes: declaration, notification of assessment 2. Job search services by labour offices 3. Social-security benefits: unemployment benefits, child allowances, medical costs (reimbursement or direct settlement), student grants. 4. Personal documents: passports or driving license 5. Car registration 6. Application for building permission 7. Declaration to police, e.g. in case of theft 8. Public libraries, e.g. catalogues and search tools 9. Request and delivery of birth or marriage certificates 10. Enrolment in higher education or university 11. Notification of change of residence 12. Health-related services: interactive advice on the availability of services, online services for patients, appointments.
Justification If we want to achieve a systematic change in the area of accessibility of websites, the scope of this Proposal should be widened. We therefore believe that the scope of the proposed Directive should include all websites and web-based services of public sector bodies as defined in article 9(1) of the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This is highlighted under Article 2(8) of the Proposal of Directive. It implies websites of European, national, regional and local public bodies regardless of their size and number of staff. Additionally, websites and web-based services provided to the public should also be covered by the Directive, according to the provision of article 9 of the UNCRPD. In the E-Communications Directives, in particular Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, the EU uses the notion of "publicly available" to define services and technologies covered by these piece of legislation. EDF recommends using a similar approach in this Directive on accessibility of websites. "Publicly available websites" would cover websites of, for instance, schools, universities, libraries, employment services, health care mutual services, public transport.

Definition of the Requirements for Web-Accessibility

Definition of the requirements for web-accessibility

There is a need for a holistic approach to the concept of accessibility of websites and accessibility at large. In line with the approach taken with regard to the European Accessibility Act, we think that, to do so, we need a reference to universal design 10 within the Proposal and a clear and extensive definition of web-accessibility, such as the following:

'Web-accessible' means a website or web-based service (including those designed for mobile devices and/or use) which is easy to browse, navigate, understand, operate, interact with and use safely, securely, independently, and with dignity by a person with a disability under all circumstances (including emergency cases). This does not exclude the use of assistive devices or augmentative and alternative communication to achieve accessibility for particular groups of persons with disabilities where this is needed.

EDF Proposals for Amendments

Article 3 Requirements for web-accessibility Article 3 Requirements for web-accessibility
(1) Member States shall take the necessary measures to ensure that the websites concerned are made accessible (a) in a consistent and adequate way for users' perception, operation and understanding, including adaptability of content presentation and interaction, when necessary, providing an accessible electronic alternative; (b) in a way which facilitates interoperability with a variety of user agents and assistive technologies at Union and international level. (1) Member States shall take the necessary measures to ensure that the websites concerned are made accessible (a) in a consistent, and adequate and easy way for users' browsing, navigation, perception, operation, and understanding, interaction with and use of, all actions being performed safely, securely independently and with dignity under all circumstances (including emergency cases), including adaptability of content presentation and interaction, when necessary, providing an accessible electronic alternative format; (b) in a way which facilitates ensures interoperability with a variety of user agents and assistive technologies at Union and international level.
Justification There is a need for a holistic approach to the concept of accessibility of websites and accessibility at large. The web-accessibility requirements must be precisely defined according to the universal design approach and cover the needs of persons with disabilities.
Recital (new)
(New recital) in accordance with artcile 2 of the United-Nations Convention on the Rights of Persons with Disabilities, 'universal design' means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. 'Universal design' shall not exclude assistive devices for particular groups of persons with disabilities where this is needed".
Justification There is a need for a holistic approach to the concept of accessibility of websites and accessibility at large. The web-accessibility requirements must be precisely defined according to the universal design approach and cover the needs of persons with disabilities.
Article 8 Exercise of the delegation Article 8 Exercise of the delegation
(1) The powers to adopt the delegated acts shall be conferred on the Commission subject to the conditions laid down in this Article. (2) The powers to adopt the delegated acts referred to in Article 3 and 5 shall be conferred for an indeterminate period of time from the date of entry into force of this Directive. (3) The delegation of power referred to in Article 3 and 5 may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following that of the publication of the decision in the Official Journal of the European Union or on a later date, specified therein. It shall not affect the validity of any delegated acts already in force. (4) As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. (5) A delegated act adopted pursuant to Article 3 and 5 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council. (1) The powers to adopt the delegated acts shall be conferred on the Commission subject to the conditions laid down in this Article. (2) The powers to adopt the delegated acts referred to in Article 3 and 5 shall be conferred for an indeterminate period of time from the date of entry into force of this Directive. (3) The delegation of power referred to in Article 3 and 5 may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following that of the publication of the decision in the Official Journal of the European Union or on a later date, specified therein. It shall not affect the validity of any delegated acts already in force. (4) As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. (5) A delegated act adopted pursuant to Article 3 and 5 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or the Council. (6) Persons with disabilities and their representative organisations shall be involved in any further specifications of the requirements for web-accessibility, as referred to in article 3(2).
Justification There is a need for a holistic approach to the concept of accessibility of websites and of accessibility at large. The web-accessibility requirements must be precisely defined according to the universal design approach and cover the needs of persons with disabilities, hence the importance to actively involve them in the update of web-accessibility requirements, updating process that is described in article 3(2).

Covering Apps and Future ICTs used on the Web

We also want to stress that new ICT services and devices to access the web are being developed at a fast pace. It is important therefore that this Proposal does not miss the opportunity to ensure harmonization in the web-accessibility internal market. Otherwise, there will be the need for retrofitting, in which case all stakeholders would lose.

Recently, the development of applications to be used on mobile communication equipment has become indispensable to access the web. Public and private bodies can now create websites which can be assessed through both traditional and mobile devices.

Therefore, we consider that the Proposal shall cover also websites including those surfed through mobile devices such as tablets and smart phones. The W3c WCAG 2.0 cover accessibility for mobile versions of websites. Since the WCAG 2.0 are referred to in the ISO/IEC 40500:2012 and in the harmonised European standard developed under Standardisation Mandate 376, we believe that web-developers have got the technical requirements needed to implement the requirements for web-accessibility in the form of a traditional website and in its mobile version.

EDF Proposals for Amendments

Article 3 Requirements for web-accessibility Article 3 Requirements for web-accessibility
1. Member States shall take the necessary measures to ensure that the websites concerned are made accessible 1. Member States shall take the necessary measures to ensure that the websites concerned, including those designed for mobile devices and/or use, are made accessible
Justification Thanks to the applications developed for mobile devices, websites have become increasingly accessible for mobile device users. Therefore, in order to meet such technological developments and be future-proof, the Proposal should cover the modality of accessing the web through mobile devices such as tablets and smart phones.

Consumer Information on Accessibility of Websites

Before looking for information and communicating with an organisation providing a public service online, persons with disabilities would expect to know whether it is worth visiting a website.

In fact, persons with disabilities, who are a very heterogeneous group, should know the accessibility level of a given website, including when they are not familiar with the WCAG 2.0. They will then be able to make a decision whether to use a website, or other means should it be deemed not accessible to them. In practice, it means that a person with a disability willing to declare his-her taxes online should immediately know whether this is feasible for him-her and to which extent, or s-he should use an alternative service.

Therefore, we consider that this proposal should also envisage the provision of reliable information on the accessibility of websites. This should be ensured by third party certification.

EDF Proposals for Amendments

Article 3 (bis) Consumer Information
1. Within the limits of their respective activities, websites' owners shall provide consumers with relevant information to enable them to assess the level of accessibility of the website. 2. Information relating to accessibility, and all other information provided to consumers shall be provided in accessible formats with full regard to the consumer's preference.
Justification Before looking for information and communicating with an organisation providing a public service online, persons with disabilities would expect to know whether it is worth visiting a website. In fact, as the W3c WCAG 2.0 have several levels of accessibility (i.e. level A, AA or AAA), persons with disabilities, who are a very heterogeneous group, should know the accessibility level of a given website. They will then be able to make a decision whether to use a website, or other means should it be deemed not accessible to them. In practice, it means that a person with a disability willing to declare his-her taxes online should immediately know whether this is feasible for him-her and to which extent, or s-he should use an alternative service.

Level of Web-Accessibility Compliance

The level of accessibility compliance provided in the W3C WCAG 2.0 should be used as a framework to assess the level of compliance that should be indicated on a given website.

We would like to point out that the level of compliance cannot be a mandatory provision. It should rather be considered as a strong recommendation to strive for the highest possible level of compliance, i.e. WCAG 2.0 AAA, in all areas where technology and accessibility features are already sufficiently developed.

This is possible without putting an unreasonable economic burden on public bodies or website owners, as the technologies and the resources required are not very expensive (e.g. real time subtitling).

At present, legislation and policies at national level mainly require public bodies' websites to be in compliance with WCAG 2.0 AA level. Compliance with WCAG 2.0 AAA level is less frequent, due to difficulties in realisation. Whereas thanks to the rapid technological evolution an ever growing number of persons with disabilities are encouraged to access the Internet we believe that websites of public bodies should aim at WCAG 2.0 AAA level compliance. Good practices, in particular those enhancing accessibility for persons with cognitive disabilities, should be strongly encouraged.

Enforcement Mechanism

We believe that without an effective enforcement mechanism and an efficient monitoring system, involving persons with disabilities and their representative organisations, this proposal for a Directive will not be able to ensure the accessibility of the websites concerned. We fear that without a binding enforcement mechanism, website owners will not pay the necessary attention to accessibility. In countries where legislation is in place, website owners and public authorities could even consider that they do already comply with this legislative proposal.

To this aim we recommend that a public enforcement body, responsible for the implementation of the law should be established or appointed in each Member State.

We acknowledge that the European Commission states in its Explanatory Memorandum that "significant implementation parameters, such as the choice of the authority to be responsible for verifying compliance, are left to the discretion of Member States", apparently to comply with the Proportionality Principle (as required by Article 5.4 TEU). However, in our view it is rather unclear why an enforcement body is not foreseen, as it exists in other EU instruments, such as the E-Privacy Directive amended by Directive 2009/136/EC in order to introduce implementation and enforcement provisions (see Article 15 bis) and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation which apply to "all persons, as regards both the public and private sectors, including public bodies." Chapter 2 of this Directive is related to remedies and enforcement (see Articles 9 to 14, including the obligation for EU Member States to ensure that associations, organizations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive).

Such an enforcement body should be a focal point for citizens and website owners within the scope of the future legislation. The enforcement body should also become a resource centre for web-accessibility and support public authorities in implementing accessibility of their websites by, for instance, providing documentation and training for civil servants and staff of public authorities on what web-accessibility means and how it can be achieved. Such training should be mandatory. The enforcement body could also maintain a legal advice service and an observatory to assess the levels of accessibility achieved in the relevant fields. Clear rules of procedure should be put in place so that citizens can easily contact the enforcement body and lodge a complaint. Furthermore, we recommend that a specific and reasonable timeframe should be set for the enforcement body and relevant public authorities to take action.

Last but not least, persons with disabilities and their representative organisations should be involved in the enforcement mechanism.

EDF Proposals for Amendments

Article 6 (bis) Enforcement body and its tasks
1. Each Member State shall establish or nominate one authority responsible for the enforcement of this Directive and competent to monitor the compliance of websites with the general accessibility requirements set in Article 3 and arrange for such authorities to have and use the necessary human and financial resources and powers to take the appropriate measures incumbent upon them under this Directive. These competent authorities shall involve organizations representing persons with disabilities. 2. Each Member State shall define the tasks, powers, organization and cooperation arrangements of the competent authorities, in accordance with Article 7 of this Directive, including the possibility for non-governmental organizations and consumer associations representing persons with disabilities to lodge a complaint with these latter in order to challenge any breach of obligation imposed to Member States by this Directive. 3. Member States shall keep the Commission informed about their implementing measures related to paragraph 2 of this Article, and the Commission shall pass on such information to the other Member States. 4. The enforcement body shall report about the implementation measures related to Article 2 of this Directive to its national competent authority.
Justification We fear that without a binding enforcement mechanism, owners of websites will not pay the necessary attention to accessibility. There should be a focal point for both European citizens and website owners under the scope of this future legislation. Citizens could complain about inaccessibility of a specific website. Easily identifiable by public authorities, the enforcement mechanism should also become a resource centre for web-accessibility: it would accompany public authorities in implementing accessibility of their websites by, for instance, delivering documentation; it would also train civil servants and staff of public authorities on what web-accessibility means and how it is achieved.
Article 6 (bis2) implementing and enforcement measures
For the purposes of this Directive, and in particular of Article 12 thereof, the competent authorities of the Member States shall be entitled to take, inter alia, the measures listed below, where appropriate: (a) for any website: (i) follow up on a complaint for inaccessibility of a website in a reasonable timeframe (ii) act as a resource centre for public bodies and authorities (iii) train civil servants and staff of public bodies and authorities to accessibility of websites and of web-based services. (iiii) give recommendations to implement this Directive (b) for any websites that fails to provide full accessibility: (i) where the failure to provide full accessibility is compatible with this Directive, to require that it be marked with suitable, clearly worded and easily comprehensible warnings, in the official languages of the Member States in which the website is used, on the barriers to accessibility it may represent.
Justification We fear that without a binding enforcement mechanism, owners of websites will not pay the necessary attention to accessibility. There should be a focal point for both European citizens and website owners under the scope this future legislation. Citizens would be able to complain about the inaccessibility of a specific website. Easily identifiable by public authorities, the enforcement mechanism would also become a resource centre for web-accessibility: it would accompany public authorities in implementing accessibility of their websites by, for instance, delivering documentation; it would also train civil servants and staff of public authorities on what web-accessibility means and how it is achieved.
Article 6 (bis3) complaint procedure
(1) Any entity (physical or moral person) who considers that this Directive has been infringed may bring the matter to the attention of the website owners, as the case may be. (2) If the entity cannot obtain satisfaction in such way, complaints may be made to any body or bodies designated under Article 6 (bis), or to any other competent body designated by a Member State, about an alleged infringement of this Directive. (3) A body in one Member State which receives a complaint concerning a matter that comes under the responsibility of a designated body of another Member State shall forward the complaint to the body of that other Member State. 4. The Member States shall take measures, making use of accessible formats, to inform citizens, including persons with disabilities, of their rights under this Directive and of the possibility of making a complaint to this designated body or bodies. 5. Without prejudice to the role and powers of the competent authorities identified in Article 6 (bis), Member States shall ensure that individuals who have been disadvantaged by the lack of accessibility of goods, services or the built environment, as provided for in this Directive, shall have access to judicial and / or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations relating to the provision of accessibility under this Directive. 6. Member States shall ensure that associations, organizations or other legal entities which have, in accordance with the criteria laid down in national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, in their own right, or on behalf or in support of the complainant, with his or her approval, in any judicial and / or administrative procedure provided for the enforcement of obligations of this Directive.
Justification We fear that without a binding enforcement mechanism, owners of websites will not pay the necessary attention to accessibility. There should be a focal point for both European citizens and website owners under the scope this future legislation. Citizens would be able to complain about the inaccessibility of a specific website. Easily identifiable by public authorities, the enforcement mechanism would also become a resource centre for web-accessibility: it would accompany public authorities in implementing accessibility of their websites by, for instance, delivering documentation; it would also train civil servants and staff of public authorities on what web-accessibility means and how it is achieved.

Evaluation and Monitoring System (Article 7)

We are convinced that the proposal lacking an adequate monitoring system at national and European level will not be able to ensure full accessibility. For this reason, this proposal must include a robust monitoring system ensuring full and timely implementation of the Directive. At both European and national level, persons with disabilities and their representative organisations should be actively involved in the monitoring mechanism.

EDF supports the establishment of the methodology to check compliance of websites concerned with the requirements for web-accessibility as suggested by the European Commission in article 7. However, we would like to stress the urgency to achieve the accessibility of websites and therefore we recommend that implementation should not happen later than 1 year after the adoption of this Directive.

EDF Proposals for Amendments

Article 7 monitoring and reporting Article 7 monitoring and reporting
(5) The methodology referred to in paragraph 4 shall include: (a) the periodicity of the monitoring and the sampling of the websites concerned that shall be subject to monitoring; and (b) at website level, the description of how compliance with the requirements for web-accessibility referred to in Article 3 is to be demonstrated, directly referencing - whenever available - to the relevant descriptions in the harmonised standard, or in their absence in the European or international standards referred to in Articles 4 and 5 respectively. (5) The methodology referred to in paragraph 4 shall include: (a) the periodicity of the monitoring and the sampling of the websites concerned that shall be subject to monitoring; and (b) at website level, the description of how compliance with the requirements for web-accessibility referred to in Article 3 is to be demonstrated, directly referencing - whenever available - to the relevant descriptions in the harmonised standard, or in their absence in the European or international standards referred to in Articles 4 and 5 respectively. (c) shall actively involve persons with disabilities and their representative organisations.
Justification At both European and national level, persons with disabilities and their representative organisations should be actively involved in the monitoring mechanism according to article 4(3) of the UNCRPD.
Recital Recital (new)
The methodology used to monitor the compliance of the websites concerned with the requirements for web-accessibility on a continuous basis should be issued later than a year after the adoption of this Directive.
Justification Due to the urgency to achieve accessibility of websites so the implementation should not happen later than 1 year after the adoption of this Directive.

Definition and Wording (Article 1)

It is important to stress that the term "persons with disabilities" refers to people with a wide range of impairments, regardless of their age or gender. As defined in UNCRPD article 1, "persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others". Disability should therefore be understood as the result of the interaction between the individual's impairment and the barriers created by society (be they social, environmental or attitudinal). The terms refers to people who currently have a disability, had a disability in the past, may have a disability in the future, or are associated with a person with a disability.

EDF Proposals for Amendments

Recital (2) Recital (2)
(2) Web-accessibility refers to principles and techniques to be observed when constructing websites in order to render the content of these websites accessible to all users, in particular people with functional limitations, including persons with disabilities. The content of websites includes textual as well as non-textual information, and also the downloading of forms and two-way interaction, e.g. the processing of digital forms, authentication, and transactions like case handling and payments. (2) Web-accessibility refers to principles and techniques to be observed when constructing websites in order to render the content of and functionality of these websites accessible to all users, in particular people with functional limitations, including persons with disabilities. The content of websites includes textual as well as non-textual information, and also the downloading of electronic files and forms and two-way interaction, e.g. the processing of digital forms, authentication, and transactions like case handling and payments.
Justification We recommend to use as a rule the wording of the UN Convention on the Rights of Persons with Disabilities, i.e. "persons with disabilities" whenever speaking about disabled people.
Article 1 Subject matter and scope Article 1 Subject matter and scope
1. This Directive aims at approximating the laws, regulations and administrative provisions of the Member States related to the accessibility of the content of public sector bodies' websites to all users, in particular people with functional limitations including persons with disabilities. 1. This Directive aims at approximating the laws, regulations and administrative provisions of the Member States related to the accessibility of the content of public sector bodies' websites to all users, in particular people with functional limitations including persons with disabilities.
Justification We recommend to use as a rule the wording of the UN Convention on the Rights of Persons with Disabilities, i.e. "persons with disabilities" whenever speaking about disabled people.

ANNEX: Good Practice Examples of National Enforcement Mechanism

Austria

The Austrian Federal Act on the Equalization of Persons with Disabilities stipulates the prohibition of discrimination of persons with disabilities in the federal administration and as far as access to goods and services is concerned, in case these are available to the public. The Act of Equalization applies also to the accessibility of public websites without specifying the public entities to which the Act refers to. It sets a general framework.

In addition, the Austrian E-Government law requires that websites of public authorities be barrier-free for persons with disabilities. There is no indication of which public entities have to fulfil this regulation, but it is implied that all public websites must be accessible.

The Austrian Federal Act on the Equalization of Persons with Disabilities has introduced conciliation proceedings before the Federal Social Office; these have to be taken recourse to, before claims for damages are asserted in court. The Federal Social Office and its regional offices have proved themselves to be extremely competent in the conduct of conciliation proceedings. In the specific case of conciliations procedures due to discrimination for inaccessible public websites there are known to be almost 10 cases brought to the attention and solved positively by the Federal Social Office.

Austrian organisations of persons with disabilities find that the mechanism of conciliation proves to be a quite effective instrument for finding solutions in case of discriminations.

Italy

Law 4/2004 11 is applicable to "Public Administration services which make use of computer and data transmission and services in the public interest" as well as "to economic public agencies, to private firms which are licensees of public services, to regional municipal companies, to public assistance and rehabilitation agencies, to transport and telecommunication companies in which the State has a prevalent shareholding and to ICT services contractors".

The responsible authority, the Agency for the Italian digital management (Agenzia per l'Italia Digitale gestione) denounced several times the inaccessibility of most public administration websites underlining that although they violate the law, there are no consequences for the responsible public administration mainly due to the failure of using sanctions.

In the 2011 Guidelines for Public Administration Websites (Linee Guida per i Siti Web delle PA) 12, it is stated that, "in order to improve the accessibility of Public Administration websites, the Minister for Public Administration and Innovation (currently Ministro per la Pubblica Amministrazione e la Semplificazione), in collaboration with DigitPA and Formez PA:

carries out a monitoring function on public websites in order to periodically evaluate the accessibility of public services online; takes note of reports of inaccessibility made by citizens via the site www.accessibile.gov.it and forwards them to the persons in charge of public websites; points out the best practices for accessibility, including through notices coming from citizens via the site www.accessibile.gov.it ; promotes the dissemination of the culture of accessibility through training and information on the subject.

It is worth mentioning, though, that currently in the sections "Segnala" (Point out/Report) and "Elenco segnalazioni" (List of reports) of the site www.accessibile.gov.it, it appears that "the service is temporarily suspended".

Norway

The enforcement body of the Norwegian Discrimination and Accessibility Act (DAA) is the Agency for Public Management and e-government (DIFI). Since the regulation is not yet operative, it is too early to say whether the enforcement body is efficient or not, but FFO, the Norwegian Organisation of Persons with Disabilities, has been positive to it.

To recall, the Norwegian Discrimination and Accessibility Act (DAA) has been efficient since 2009, and there are different enforcement bodies for the different areas. The area of discrimination (Paragraph 4) and general accessibility (Paragraph 9) is under the Equality and Anti-discrimination ombudsman. It has been efficient to some degree. The Ombudsman has received many complaints under the DAA; over half of the complaints the Ombudsman receives concern discrimination on account of disability. But since the Ombudsman has many other areas to cover, gender equality and ethnicity for example, they have too much to do, and the time it takes to process a complaint is excessive. They don't have capacity or resources to document the situation on rights for persons with disabilities or to work actively to improve them - as they are committed to do.

Slovakia

In Slovakia, 2 pieces of legislation - Act n°. 275/2006 col. about information systems of public administration, and on it basis, Decree n°. 312/2010 col. about standards for information systems of public administration- specify accessibility rules for websites. It applies to public administration only (i.e. ministries, government institutions, regional governments and municipalities, courts, etc. and institutions established by those bodies). The responsible authority and enforcement body is the Ministry of Finances.

Complaints can be submitted through a special website, www.informatizacia.sk, where also all relevant legislation, instructions manuals and recommendations can be found. The Ministry of Finances regularly orders audits of sample choice of websites. According to the Act 275/2006 about information systems of public administration there is possibility of penalty, but it has not been used yet.

According to NROZP, the Slovakian Organisation of Persons with Disabilities, accessibility is systematically improved, but it is a very slow process.

Spain

The law 49/2007 regulates the regime of infringements/violations and sanctions in the field of equal opportunities, non-discrimination and universal accessibility for persons with disabilities by establishing sanctions ranging from € 301 up to a maximum of € 1 million.

For minor offences/violations, the penalty shall not exceed in any case of € 30 000 and for serious offences/violations, the penalty shall not exceed in any case of € 90 000.

The competent body to receive complaints and to instruct the disciplinary record is the General Direction of Disability Policies, in the Ministry of Health, Social Services and Equality.

The complaint can be submitted directly to this General Direction or refer to the Permanent and Specialized Office of the National Council on Disability who is responsible for actions prior to the examination of the disciplinary case.

Up to date, CERMI, the Spanish Organisation of Persons with Disabilities, has repeatedly denounced the lack of accessibility of the web pages of public administration and large enterprises. However, by what we know, there has not been any sanction, at least sanction which has been made public.

United-Kingdom (UK)

There is no centralised and designated body. However, there is the Equality and Human Rights Commission that enforces the UK's Equality Act 2010 that incorporated the Disability Discrimination Acts of 1995 and 2005. They have sponsored a course on we-accessibility delivered by the British Computer Society 13.

APPENDIX

Contact Person at the EDF Secretariat:

Nadège Riche, EDF Policy Officer

Tel: +32/0 2 282 46 05, Email: nadege.riche@edf-feph.org

More information about EDF is available on www.edf-feph.org.

Should you have any problems in accessing the document, please contact the EDF Secretariat (T: +32/0 2 282 46 00).


1 This Directive is available in all European languages in HTML and PDF format on the EUR-Lex website.

2 This Directive is available in all European languages in HTML and PDF format on the EUR-Lex website.

3 This Directive can be accessed in html and PDF format on the EUR-Lex website.

4 Proposal for a Directive on the Accessibility of Public Sector Bodies' Websites is available in Word, PDF and html format on the EUR-Lex website.

5 Detailed information about the DAE action 64 is available on the European Commission dedicated website.

6 The UNCRPD is available in PDF and html format on the United Nations website.

7 The Treaty on the Functioning of the European Union (TFEU) is available in PDF format on the EUR-Lex website.

8 The Treaty on the European Union (TEU) is available in PDF format on the EUR-Lex website.

9 The European Disability Strategy 2010-20 is available in Word, PDF and HTML format on the EUR-Lex website.

10 "Universal design" means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. "Universal design" shall not exclude assistive devices for particular groups of persons with disabilities where this is needed - (Article 2 UNCRPD).

11 An English version of Law 4/2004 can be found on this website.

12 The 2011 Guidelines for Public Administration Websites (Linee Guida per i Siti Web delle PA) are available in Word format on this website.

13 Further information is available on the British Computer Society website.