28 Ars Aequi januari 2013
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An introduction to the disability
strategy 2010-2020, with a focus on
accessibility
Stelios Charitakis*
This article aims at providing an overview of the European Disability
Strategy 2010-2020, with a focus on accessibility. It compares the policy
objectives on disability accessibility of the current Strategy with the
previous EU policies on disability. Finally, it examines the progress of
the implementation of this Strategy through the analysis of two forthcoming legal instruments related to disability accessibility, the proposed
Public Procurement Directives and the European Accessibility Act.
1Introduction
On the 15th of November 2010, the Commission adopted a Communication on the
European Disability Strategy 2010-2020.1 The
policy described in this document is a continuation of the more comprehensive approach
on disability issues that the European Union
(EU) has taken since the European Action
Plan 2004-2010.2 During this period, the EU
showed its commitment on disability issues
by participating in the preparatory works,
signing and concluding the United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD). The EU concluded the
UNCRPD in December 2010. A month later
the Convention came into force. These actions signalled the first time that the EU has
concluded an International Human Rights
Convention. Among the provisions of the Convention is accessibility.3
The purpose of accessibility
is to enable the independent
living and full participation
of persons with disabilities
in all aspects of life
The purpose of accessibility is to enable the
independent living and full participation of
persons with disabilities in all aspects of life.4
As a result of the conclusion of the UNCRPD
the EU is obliged to fulfil the obligations
of the Convention within the limits of its
competence. The EU has already taken steps
to implement the Convention with regard to
accessibility, by proposing the revision of the
Public Procurement Directives5 and the adoption of the European Accessibility Act (EAA).6
The intention of this article is to provide an
overview of the European Disability Strategy 2010-2020 in relation to accessibility by
focusing on the forthcoming EU legislation on
public procurement and the EAA.
2 Defining Accessibility
Before I move to the analysis of the Disability
Strategy 2010-2020 and how it is realised
through the two policy steps that I will examine, it is essential to understand the meaning
of the term ‘accessibility’. The UNCRPD does
not offer a definition of accessibility either in
the ‘definitions’ article7 or in article 9 UNCRPD, where the obligations of the State Parties
of the Convention in relation to accessibility
* Stelios Charitakis is a
Marie Curie Early Stage
Researcher for the Department of International
and European Law of
Maastricht University. He
is grateful to Professor
Lisa Waddington (Maastricht University) for her
very helpful comments on
an earlier version of this
article.
1 Communication COM
(2010)636 from the Commission to the European
Parliament, the Council,
the European Economic
and Social Committee and
the Committee of Regions,
European Disability Strategy 2010-2020: A Renewed
Commitment to a BarrierFree Europe, Brussels, 15
November 2010.
2 Communication COM
(2003)650 from the Commission to the European
Parliament, the Council,
the European Economic
and Social Committee and
the Committee of Regions,
A European Action Plan
2004-2006, Brussels, 30
October 2003; Communication COM (2005)604
from the Commission to
the European Parliament,
the Council, the European
Economic and Social Committee and the Committee
of Regions, A European Action Plan 2006-2007, Brussels, 28 November 2005;
Communication COM
(2007)738 from the Commission to the European
Parliament, the Council,
the European Economic
and Social Committee and
the Committee of Regions,
A European Action Plan
arsaequi.nl/maandblad  AA20130028
2008-2009, Brussels,
26 ­November 2007.
3 Article 9 UNCRPD.
4 Article 9(1) UNCRPD.
5 Proposal for a Directive on
procurement by entities
operating in the water,
energy, transport and postal
services sectors, COM
(2011)895, 20/12/2011;
Proposal for a Directive on
public procurement, COM
(2011)896, 20 December
2011.
6 Communication COM
(2010)636, p. 5.
7 Article 2 UNCRPD.
8 For example, see, Directive
2004/17/EC of 31 March
2004, coordinating the
procurement procedures
of entities operating in the
water, energy, transport and
postal services sectors and
Council Regulation (EC)
1083/2006 of 11 July 2006
laying down general provisions on the European Regional Development Fund,
the European Social Fund
and the Cohesion Fund and
repealing Regulation (EC)
No 1260/1999.
9 M. Schulze, Understanding
the UN Convention on the
Rights of Persons with Disabilities: A handbook on the
Human Rights of Persons
with Disabilities, 2009. Last
consulted on 24 September
2012. www.enablement.nl/
pdf/HI_CRPD_Manual_
sept2009_final.pdf, p. 45.
10Schulze 2009, p. 45.
11Schulze 2009, p. 45;
Committee on Economic,
Social and Cultural Rights,
General Comment 14, last
consulted on 18 September
2012.
12Schulze 2009, p. 45;
Committee on Economic,
Social and Cultural Rights,
General Comment 14, last
consulted on 18 September
2012.
13J.E. Lord, Accessibility and
Human Rights fusion in the
CRPD: Assessing the scope
and the content of the accessibility principle and duty
under CRPD, Presentation
for the General Day of
Discussion on Accessibility,
Committee on the Rights of
Persons with Disabilities,
p. 5; Committee on Economic, Social and Cultural
Rights, General Comment
14, last consulted on 23
September 2012. www.
unhchr.ch/tbs/doc.nsf/%2
8Symbol%29/40d0099013
58b0e2c1256915005090be?
Opendocument.
14Schulze 2009, p. 46.
15Schulze 2009, p. 46.
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Ars Aequi januari 2013 29
Foto © Marten Hoogstraat (www.whiteframe.nl)
are stated. Although accessibility is mentioned in EU legislation, there is no definition
of the content of the term in the instruments
in which it is used.8 Therefore, instead of
focusing on a definition, it is better to use a
different approach. Accessibility comprises
several aspects, following the analysis of
Schluze9 in combination with General Comment 14 of the Committee on Economic Social
and Cultural Rights.10 First, accessibility
has a social or attitudinal aspect. This form
of accessibility refers to the removal of the
stigma and other negative forms of behaviour
that people with disabilities, their families
and their caretakers experience throughout
their lives.11 Second, accessibility includes
an affordability aspect.12 This aspect refers
to the need to make everything affordable to
persons with disabilities, from flight tickets to
new information and communication technologies. Third, accessibility has a physical
aspect that interrelates with the physical
environment. This type of accessibility suggests that all the physical environments,
including facilities and buildings should be
adjusted so that they will be accessible to
persons with disabilities.13 For example, a
ramp at the entrance of a restaurant is an
adjustment to meet the needs of persons with
mobility impairments. The fourth dimension
of accessibility is the information aspect.14
This type of accessibility means that people
with disabilities are entitled, on an equal
basis with others to seek, receive and impart
information and ideas. For example, people
with disabilities should be informed about
the accessibility features of a public building. This example differs from the one about
the physical accessibility because in the case
of the ramps, the obligation is to adjust the
physical environment to accommodate people
with disabilities, while in the case of information about the accessibility features of a
building, the obligation is to make information available to people with disabilities.
Fifth, the last aspect of accessibility is the
communication aspect. This type of accessibility of goods and services concerns the
supply of information in accessible formats
in alternative modes and means of communication for all types of persons with disabil­
ities.15
Although accessibility is
mentioned in EU legislation,
there is no definition of the
content of the term in the
instruments in which it is used
In this article the main focus will be on the
physical aspect of accessibility as this type
is connected with the Public Procurement
Directives and the EAA, because both of
them are focusing on removing the barriers
of accessibility of the built environment and
goods and services.
30 Ars Aequi januari 2013
3The European Disability Strategy
2010-2012
The European Disability Strategy 20102012 was adopted in November 2010. It
aims at enabling people with disabilities to
enjoy their full rights and benefit from their
participation in society and in the European
economy through the Single Market.16
To eliminate the barriers of accessibility for
people with disabilities, the Strategy suggests the use of legislative and other instruments, like standardisation, to modify the
built environment, transport and Information
and Communication Technologies (ICT). An
example of such measures is the proposal of
the Commission to revise the Public Procurement Directives.17 It states that the possibility of adopting regulatory measures to ensure
accessibility of goods and services, including
measures to set up the use of public procurement, should be examined.18 The forthcoming
EAA is a perfect realisation of this policy
direction. The Act might also include detailed
standards for specific sectors with a view to
improve the internal market’s function with
regards to the accessibility of goods and services for persons with disabilities.19
The European Disability
Strategy 2010-2012 aims
at enabling people with
disabilities to enjoy their full
rights and benefit from their
participation in society and
in the European economy
through the Single Market
Another aspect of accessibility covered by
the Strategy is assistive technologies.20 The
EU aims at stimulating an EU market for
assistive technologies and will take action
to support and supplement national actions
for the implementation of accessibility, the
removal of barriers and the improvement
of the availability and choice of assistive
technologies.21 Finally, the Strategy aims at
raising awareness and training on all the
dimensions of accessibility and ‘design for
all’22 in educational curricula and training of
relevant professions.23
As far as participation is concerned, the
Strategy introduces several initiatives in relation to accessibility of people with disabil­
ities. The Strategy, with a view to improve
the participation of people with disabilities
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in society, pursues the raising of accessibility
levels in the fields of sports venues, goods
and services and cultural and recreational
activities.24 The accessibility to voting in the
form of facilitation of the procedures of the
exercise of the electoral rights of EU citizens
and the promotion of cross-border transfer
of copyright works in accessible formats, are,
also, measures included in the Strategy.25
In the field of health the Strategy proposes
the adoption of EU measures to support
national actions to provide accessible facil­
ities and services.26 Finally, the EU will
focus, pursuant to the Strategy, on raising
the awareness of society on disability issues,
informing people with disabilities of their
rights and using structural funds and public
procurement to support and supplement
national policies that aim to improve all the
aspects of accessibility for people with disabilities.27
This Strategy is not the first comprehensive policy framework on disability that the
EU has designed. Before the Strategy, the
EU had developed a Disability Action Plan
that covered the period between 2004 and
2010. The purpose of this plan was to mainstream disability into relevant Community
actions and design measures to improve the
life of people with disabilities.28 The Action
Plan was developed in three biennial phases.
The first one, proposed policies in relation
to accessibility that focused on access to
and remaining in employment through the
promotion of barrier free use of new ICTs,
the lifelong learning via the monitoring of
the e-accessibility of websites and media for
lifelong learning, using potential new technologies by the means of the initiation of dialogue and guidelines for accessibility of ICTs,
awareness raising and support activ­ities,
the promotion of accessibility standards, and
the accessibility of the built environment
through the promotion of the Principle of
‘design for all’, standardisation and others.29
The second period followed the priority of
fostering accessibility of goods and services
by focussing on accessibility of services,
transport and ICTs, including access to the
new generation of assistive technologies.30
The last phase focused on boosting accessibility of goods, services and infrastructures via the development of legislative
frameworks on accessibility in the fields of
transport and ICTs and the mandate of EU
standards for public procurement.31
In comparison to the Disability Action
Plan, the Disability Strategy shows more
16Communication COM
(2010)636, p. 4.
17Proposal for a Directive on
procurement by entities
operating in the water, energy,
transport and postal services
sectors, COM (2011)895, 20
December 2011; Proposal for a
Directive on public procurement, COM (2011)896 of 20
December 2011.These proposals entail an obligation to
consider disability accessibility
requirements as technical
specifications in the procurement documents.
18Communication COM
(2010)636, p. 5.
19Communication COM
(2010)636, p. 5.
20A battery powered chair, a
prosthetic limb or a screen
reader are examples of assist­
ive technologies.
21Communication COM
(2010)636, p. 5.
22Design for all or Universal design is 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. See for more information,
Article 2 UNCRPD.
23Communication COM
(2010)636, p. 5.
24Communication COM
(2010)636, p. 6.
25Communication COM
(2010)636, p. 6; an example
of such measures is to make
legally available to other
Member States of the EU
copyrighted and licensed
material edited in accessible
formats, which are exempted
from copyrights by national
legis­lation or licenses in one
Member State.
26Communication COM
(2010)636, p. 9.
27Communication COM
(2010)636, p 10.
28J. Arsenjeva, Annotated review
of European Union law and
policy with reference to disability, Academic Network of
European Disability experts
(ANED), December 2009, p. 8.
www.disability-europe.net/content/aned/media/ANED%20
2009%20Task%203%201%20
Review%20of%20law%20
and%20policy%20with%20
annex%20-%20final_in%20
layout.pdf.
29Communication COM
(2003)650 from the Commission to the European
Parliament, the Council, the
European Economic and Social
Committee and the Committee
of Regions Equal opportunities
for people with disabilities: A
European Action Plan, Brussels, 30 October 2003.
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30Communication COM
(2005)604 from the Commission to the European
Parliament, the Council, the
European Economic and Social
Committee and the Committee of Regions, Situation of
disabled people in the enlarged
European Union: the European
Action Plan 2006-2007, Brussels, 28 November 2005, p. 5.
31Communication COM
(2007)738 from the Commission to the European
Parliament, the Council, the
European Economic and Social
Committee and the Committee of Regions, Situation of
disabled people in the enlarged
European Union: the European
Action Plan 2008-2009, Brussels, 26 November 2007, p.3.
32Communication COM
(2010)636, p. 6.
33Communication COM
(2010)636, p. 6.
34Communication COM
(2010)636, p. 6.
35Communication COM
(2010)636, p. 7.
36Communication COM
(2010)636, p. 8.
37Communication COM
(2010)636, p. 8.
38Communication COM
(2010)636, p. 7.
39Communication COM
(2010)636, p. 9-10.
40S. Arrowsmith, EC Regime on
Public Procurement, in Khi.
V. Thai, (red.), International
Handbook on Public procurement, New York USA: CRC
Press, 2009, p. 110.
41Directive 2004/17/EC of 31
March 2004 coordinating
the procurement procedures
of entities operating in the
water, energy, transport and
postal services sectors; Directive 2004/18/EC of 31 March
2004,on the coordination of
procedures for the award of
public works contracts, public
supply contracts and public
service contracts.
42Proposal for a Directive on procurement by entities operating
in the water, energy, transport
and postal services sectors,
COM (2011)895, 20 December
2011; Proposal for a Directive
on public procurement, COM
(2011)896, 20 December 2011.
43On the scope of the Utilities
Directive last consulted on
8 November 2012. http://
europa.eu/legislation_summaries/internal_market/businesses/public_procurement/
l22010_en.htm.
44On the scope of the Utilities
Directive last consulted on
8 November 2012.
45On the scope of the Utilities
Directive last consulted on
8 November 2012.
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interest in the accessibility of goods and
services. Whereas the Action Plan aimed at
the improvement of accessibility of the built
environment and transport for people with
disabilities, a policy which took the form of
standards and legislation, the Strategy is
putting more emphasis on accessibility of
goods and services in the Internal Market,
including but not limited to public procurement. This establishes a new perspective on
the approach of the EU on disability accessibility legislation. However, the Strategy does
not disregard the work that has been done
before, but it tries to make the existing EU
policies stronger with regard to accessibility
by revising them.
In comparison to the Disability
Action Plan, the Disability
Strategy shows more
interest in the accessibility
of goods and services
This Strategy, though, also includes measures in fields other than accessibility. In
the field of participation, the EU aims at
enabling the enjoyment of all the benefits
of EU citizenship by people with disabil­
ities.32 It will also attempt to provide quality
community-base services.33 Moreover, the
EU will make an effort towards the removal
of administrative and attitudinal barriers to
full and equal participation.34 With respect
to equality, the EU will make an effort to
eliminate discrimination in relation to disability in the EU.35 In the field of education
the EU intends to promote inclusive education and lifelong learning for people with
disabilities.36 As far as social protection is
concerned, the EU aims at promoting decent
living conditions for people with disabilities
through the European Platform against
Poverty.37 In the area of employment, the EU
will supplement the efforts of the national
governments to enable many more people
with disabilities to be part of the labour
market and earn their living, through the
use of the European Social Fund, state aid
and other policy options.38 In the field of
health policy, the EU will aim at promoting
equal access to health services and facilities
for disabled people. The EU will support the
implementation of these policies by raising
the societies’ awareness on disability issues,
optimising the use of EU funding instruments for disability accessibility and non-
Ars Aequi januari 2013 31
discrimination, data collecting of disabilityoriented statistics and establishing the
UNCRPD monitoring mechanisms.39
4Public Procurement
The Directives on Public Procurement set
out the regulatory framework for the conduct of public procurement. The main purpose of these Directives is to combat corruption in public contracting.40 The two current
Directives on Public Procurement that have
some relevance with accessibility for persons
with disabilities are the Directive on coordinating the procurement procedures of entities operating in the water, energy, transport
and postal services sectors (Utilities Direct­
ive) and the Directive on coordinating the
procedures for the award of public works
contracts, public supply contracts and public
service contracts (General Procurement
Directive).41 The current regime of the Public
Procurement Directives will change after the
adoption of the currently proposed Public
Procurement Directives, which provide a
more significant and effective approach
towards accessibility for people with disabil­
ities than the previous ones.42
The Directives on Public
Procurement set out the
regulatory framework
for the conduct of public
procurement. The main
purpose of these Directives
is to combat corruption
in public contracting
The public contracts of the current Util­
ities Directive are concluded by contracting
authorities, such as the state, a regional
or local authority and a body governed by
public law and their associations, which are
capable to engage in public procurement.43
They can also be concluded by public undertakings, which are any undertakings over
which a contracting authority may bestow
a dominant influence on account of their
owner­ship, their financial participation within, or the rules which regulate them.44 Both
of them, in order to be under the scope of
this Directive, should engage in activities in
the fields of gas, electricity, water, transport
services, postal services, the extraction of
fuels, or the provision of ports or airports.45
32 Ars Aequi januari 2013
The Directive applies also to all contracting
entities which are not either public under­
taking or contracting authorities, which pursue activities in one of the above mentioned
fields and are holders of special or exclusive
rights provided by a competent authority of
a Member State, as stated in the Directive.46
These rights are granted by a Member State.
They limit the exercise of a given activity to
one or more entities, and affect the ability of
other entities to carry out such activity.47
The scope of the General Public Procurement Directive includes public works contracts, public supply contracts and public service contracts. Public contracts are contracts
with commercial intent between one or more
contractors and one or more economic oper­
ators whose object is the completion of works,
the supply of products or the provision of services.48 According to these Directives it is possible, but not obligatory, for the contracting
authorities to consider accessibility requirements for people with disabilities or design
for all users, when they design the technical
specifications in the contract documentation.49
The suggestion that whenever possible accessibility should be considered when drafting
the technical specifications50 in the contract
documentation, takes the form of an obligation in the proposed Public Procurement
Directives.51 Thus, in case of procurement
that is intended for use by people, the technical specifications in the procurement documents52 shall take into account accessibility
requirements for people with disabilities or
design for all users, with the exception of duly
justified cases. These accessibility requirements of the technical specifications should
be designed in accordance with the mandatory accessibility standards53 in the instance
that they are provided by a legislative act of
the EU. For example, the public procurement
of a new lift should follow the accessibility
standards of the Directive on lifts.54 European
standards55 certified by accredited bodies
should also be used by the contracting author­
ities as a reference in the case that they
require a proof from the economic operators
that they comply with certain quality requirements.56
In that respect, since the adoption of the
previous set of Public Procurement Directives, the EU has been working on the
development of EU accessibility standards
that can be used in public procurement. In
2005, the EU issued a Mandate57 supporting
the European accessibility requirements for
products and services in the ICT domain.58
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The purpose of this Mandate is to harmonise and simplify the public procurement
of accessible ICT services and products and
to provide a mechanism through which the
public procurers have access to a toolkit that
will enable them to use these requirements
throughout the process of public procurement.
The Commission issued a second Mandate
on Public Procurement in 2007. Mandate
420 focuses on accessibility requirements for
public procurement in the built environment.
It aims at facilitating the public procurement
of accessible built environment in accordance
with the ‘design for all’ principle through the
development of a set of standards that will
include a set of functional European accessibility requirements of the built environment
and a minimum of technical data to comply
with those requirements. It also aims, as the
ICT Mandate does, at providing a mechanism
to facilitate the procurers’ access to a toolkit
on accessibility requirements.59 The standard­
isation procedure for both Mandates is in
development.60
The proposed Directives on Public Procurement also refer to accessibility for people with
disabilities in other instances than the ones
analysed above. When the contract authorities
decide on the award of public contracts, they
can use two criteria disjunctively. The first
criterion is the criterion of the most advantageous tender and the second is the criterion
of the lowest cost.61 In case the authorities
choose the first criterion they should refer to
criteria that are connected with the subject
matter, which might include other criteria
such as accessibility.62 Furthermore, accessibility is considered a principle of awarding contracts. Therefore, the Member States
should ensure that the procedures for the
award of contracts are fully compliant with,
among others, accessibility. They should take
into account the specific needs of different
categories of users and the involvement and
empowerment of users. In other words, accessibility is not just an award criterion, but it is
a principle that should be respected throughout the procedure for the award of contracts.63
The last important development in the field
of public procurement that has been provided
by these Directives is the establishment of a
monitoring body that will be responsible for
the oversight and coordination of implemen­
tation activities relating to these Directives.64
Among their other tasks, these monitoring
bodies will be responsible for issuing an
annual report on a global overview of the
implementation of sustainable procurement
46On the scope of the
Utilities Directive last
consulted on 8 November
2012.
47Directive 2004/17/EC of
31 March 2004 coordinating the procurement
procedures of entities
operating in the water, energy, transport and postal
services sectors, article 2;
http://europa.eu/legislation_summaries/internal_market/businesses/
public_procurement/
l22010_en.htm.
48Directive 2004/17/EC,
article 1(2) (a).
49The contract documentation includes, among
others, contract notices,
contract documents, additional documents and
the technical specifications
of the work. Directive
2004/17/EC, article 34;
Directive 2004/18/EC of 31
March 2004 on the coordination of procedures for
the award of public works
contracts, public supply
contracts and public service contracts, article 23(1).
50Directive 2004/17/EC,
Annex XXI; Directive,
2004/18/EC, Annex VI.
Technical specifications are
specifications in a document defining the required
characteristics of a product
or a service or product or
supply, which permits a
material, a product or a
supply to be described in a
manner such that it fulfils
the use for which it is intended by the contracting
authority.
51Proposal for a Directive on
procurement by entities
operating in the water,
energy, transport and
postal services sectors,
COM (2011)895, 20 December 2011, article 54(1);
Proposal for a Directive on
public procurement, COM
(2011)896, 20 December
2011, article 40(1).
52Proposal for a Directive
COM (2011)895, article 2;
Proposal for a Directive
COM (2011)896, article
2. Procurement documents are all documents
produced or referred to by
the contracting entity to
describe or determine elements of the procurement
or the procedure, including
the contract notice, the
prior information notice or
the notices of the technical
specifications.
53A standard is a technical
document designed to be
used as a rule, guide-
arsaequi.nl/maandblad  AA20130028
line or definition. It is a
consensus-built, repeatable
way of doing something.
See for more information
www.cen.eu/cen/Pages/
default.aspx.
54Directive 95/16/EC of 29
June 1995 on the approximation of the laws of the
Member States relating to
lifts, amended by Regulation (EC) No 1882/2003 of
the European Parliament
and of the Council of 29
September 2003 and Directive 2006/42/EC of the
European Parliament and
of the Council of 17 May
2006.
55European standard is a
standard adopted by a
European standardisation
body and made available to
the public.
56Proposal for a Directive on
procurement by entities
operating in the water,
energy, transport and
postal services sectors,
COM (2011)895, 20 December 2011, article 75(1);
Proposal for a Directive on
public procurement, COM
(2011)896, 20 December
2011, article 61(1).
57A standardisation mandate
is a document, issued by
the Commission, which
requests the European
Standardisation Organisations to develop European
standards.
58Standardisation mandate
376 to CEN CENELEC
and ETSI, 7 December
2005, p. 2.
59Standardisation mandate
420 to CEN CENELEC
and ETSI, 21 December
2007, p. 4.
60See for information on
the new developments on
European Standardisation
www.cen.eu/cen/Sectors/
Sectors/Accessibility/
Pages/default.aspx.
61If the contracting authorities pick the ‘lowest cost’
criterion, they will choose
the tender that involves
the lowest cost. If they pick
the ‘most advantageous
tender’ criterion, they will
consider several issues
in order to decide which
tender to choose. Examples
of these issues might be
the quality, price, technical merit, aesthetic and
functional characteristics
and environmental and accessibility characteristics.
62Proposal for a Directive on
procurement by entities
operating in the water,
energy, transport and
postal services sectors,
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policies, including procedures that take into
consideration issues such as social inclusion,
including accessibility for persons with disabilities.65
In conclusion, the proposed Directives on
Public Procurement show signs of a significant development in the field of accessibility
for people with disabilities. They constitute,
also, a fundamental step of the EU towards
the implementation of Article 9 UNCRPD
and in particular of the obligation to ensure
accessibility of the physical environment. The
text of the Directives is in process of adoption.
Time will tell whether the text will be adopted
as it is or if it will undergo changes that relate
to accessibility of persons with disabilities.
The proposed Directives on
Public Procurement show signs
of a significant development
in the field of accessibility
for people with disabilities
5 The European Accessibility Act
The EU has been developing policies on accessibility of goods and services in the form
of soft law for years.66 The Disability Strategy
gave the green light to the Commission to
begin the procedures in order to propose a
legal instrument that will regulate the accessibility of goods and services.67 On the 12th
of December 2011, the public consultation on
the EAA was opened by the Commission and
it eventually closed on the 29th of February
2012. Currently the EAA is at the phase of
impact assessment.68
The EAA has many objectives. It aims at
improving the functioning of the Internal
Market in creating economies of scale and
remedying market failures with regard to accessible goods and services. Another objective
of the EAA is the harmonisation of accessibility requirements in Europe by eliminating
the barriers to accessibility because of the
different national legislations. It also pursues
the stimulation of innovation in accessibility
by developing and using European standards,
the boost of effectiveness of the existing accessibility legislation in the EU and the increase
of the incentives to provide accessibility. Finally, it aims at improving the availability of
accessible goods and services in the internal
market and enhancing the inclusion and participation of disabled people in the European
society and economy.69
Ars Aequi januari 2013 33
The legal basis for the adoption of the EAA is
article 114 TFEU on the Internal Market. Article 114 TFEU authorises the European Parliament and the Council to adopt harmonising
measures which aim at the establishment and
the functioning of the internal market.70 The
most comprehensive analysis of article 114
TFEU was provided by the European Court
of Justice (now, Court of Justice of the EU) in
the first judgment on Tobacco Advertising.71
In that case the Court provided a set of rules
that governs the interpretation of Article 114
TFEU (art. 100a EEC at the time of the judgment). The Court stated that the EU legislator is not provided with a general power to
regulate the internal market, but only to improve the conditions for its establishment and
functioning.72 If the legislator was allowed a
general power to regulate the internal market, it would have been considered as a violation of the article and of the principle of the
conferred powers.73 Furthermore the Court
indicated that a mere finding of disparities
between national rules and of the abstract
risk of obstacles to the exercise of fundamental freedoms or of distortions of competition is
not adequate enough to justify EU legislative
action in the field of the Internal Market.74
The court further stated that the use of this
legal basis is possible if the aim is to prevent
the emergence of future obstacles to trade resulting from diverse development of national
laws. Nevertheless, the emergence of such
obstacles must be likely and the measure in
question must be designed to prevent them.75
Lastly, in the case of a measure that aims
at removing a distortion of competition, the
distortion that it is meant to eliminate must
be appreciable.76
Therefore, in order for the EU to enact the
EAA in accordance with Article 114 TFEU,
which means that the EU will harmonise
laws on disability accessibility of goods and
services, it must follow the requirements of
the settled case-law of the CJEU, which are
the following. First, there must be national
laws that dictate disability accessibility
requirements for each good and service that
is intended to be regulated through the
Act. Second, it must be examined whether
these national laws can cause barriers to
the movement of goods and services in the
internal market or significant distortions of
competition. Nevertheless, the EU does not
need to wait for the Member States to adopt
disability accessibility legislation that will
create barriers to the movement of goods and
services. The EU is able to include any good or
34 Ars Aequi januari 2013
service in the EAA, as long as it can provide
evidence that it is likely that barriers in the
movement of that good or service will emerge
due to the development of diverse national
legislation and that the EAA is designed to
prevent them. If some goods and services are
not regulated in the national legal orders of
the Member States of the EU and there is no
likelihood that new legislation on disability
accessibility of these goods and services will
cause barriers to their free movement in the
internal market, these goods and services will
not be included in the Act. The same applies
in the case of the second set of requirements.
If the national laws on certain goods or
services do not cause trade barriers or distortions of competition, these goods and services
will not be part of the EAA. Therefore, it is
quite evident, that the Commission faces a
great challenge with respect to the impact
assessment of the EAA. It must discover every
national law that might be related to disability accessibility of each good and service that
the Commission intends to include in the Act
and examine whether the national legislation of the Member States for each good and
service causes trade barriers or distortion of
competition.
There are several possibilities
for the form that the EAA
will take. The roadmap
on the EAA has examined
three alternatives
There are several possibilities for the form
that the EAA will take. The roadmap on the
EAA has examined three alternatives. The
first is to introduce a legal instrument on public services that would impose a compulsory
purchase of disability accessible goods and
services.77 It would also name a number of
European standards for the relevant sectors
based on which the conformity with this legal
instrument would be tested.78 The second suggested option is a general framework with one
or two Directives introducing general obligations to be imposed by the Member States to
the manufacturers and service providers to
raise the level of accessibility of goods and
services.79 Measures on public procurement
and the development of standards would be
included in this framework too, followed by a
universal design approach.80 The last option
would follow the footsteps of the previous one,
but it would take the form of a Regulation and
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it would be focusing on the possible impacts of
direct application and timing.81
The choice has not been made yet. However,
the choice of an Internal Market Directive,
the second option, seems most likely. The
choice of a public procurement legal instrument is unnecessary in the sense that the
Commission has already proposed a new set
of Directives on Public Procurement that include an obligation to provide accessibility for
people with disabilities. The choice between
a Directive and a Regulation is based on the
fact that Directives are not directly applic­
able, but they need to be transposed and the
Member States are given a certain amount
of time to implement them. Moreover, due to
their nature, Directives provide the Member
States with discretion on the approach that
they will employ in order to transpose them
in their national legislation. In conclusion, the
Directives offer flexibility on their implementation to the Member States, which is important especially when the Directive carries a
financial burden both on the manufacturers
and the Member States. This option seems
to be the most appropriate too. Accessibility
of goods and services is a matter that relates
to both the public and the private sector. The
obligation for the states to provide accessible
goods and services is a great step towards a
more accessible market for persons with disabilities, but it is not enough. The private sector should also contribute to the achievement
of an accessible market. In that respect, this
option attempts to involve both the public and
the private sector, by obliging them to follow
several accessibility standards for each good
and service that is included in the Act. This
leads to my second point. Standardisation is
of paramount importance for the implementation of the obligation to provide accessible
goods and services for people with disabilities.
In that regard, the second option is on the
right track, because it intends to focus on
the development of European Standards for
goods and services. That is why the option
of a Directive, as described above, seems the
most appropriate option considering that it
provides flexibility and a margin of appreciation to the Member States in transposing
and implementing the obligations that it will
entail.
6Conclusion
The European Disability Strategy 2010-2020
reaffirms the commitment of the EU on disability and accessibility. It also revises the
COM (2011)895, 20 December 2011, article 76(2);
Proposal for a Directive on
public procurement, COM
(2011)896, 20 December
2011, article 66(2).
63Proposal for a Directive
COM (2011)895, article
86(2); Proposal for a Direct­
ive COM (2011)896, article
66(2).
64Proposal for a Directive
COM (2011)895, article
93(1); Proposal for a Direct­
ive COM (2011)896, article
84(1).
65Proposal for a Directive
COM (2011)895, article
93(2); Proposal for a Directive COM (2011)896, article
84(2).
66Roadmap, European
Accessibility Act: legislative initiative to improve
accessibility of goods and
services in the Internal
Market.
67Roadmap, European
Accessibility Act: legislative initiative to improve
accessibility of goods and
services in the Internal
Market.
68Impact assessment is a
procedure ordered by Euro­
pean Commission before
it proposes new legislative
initiatives. It includes the
assessment of the potential
economic, social and environmental consequences
that these legislative initiatives might have.
69Roadmap, European Accessibility Act: legislative
initiative to improve accessibility of goods and services
in the Internal Market.
70Article 114(1) TFEU.
71CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council).
72CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council),
par. 83; CJEU 2nd May
2006, nr. C-217/04 (United
Kingdom/ Parliament and
Council), par. 42.
73CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council),
par. 83; CJEU 2nd May
2006, nr. C-217/04 (United
Kingdom/Parliament and
Council), par. 42.
74CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council),
par. 84.
75CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council),
par. 86; CJEU 10th February 2009, nr. C-301/06
(Ireland/Parliament and
Council), par. 64.
arsaequi.nl/maandblad  AA20130028
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priorities of the EU in relation to disability
accessibility by putting more emphasis on
accessibility of goods and services in the
Internal Market. This approach is visible in
the examples of the forthcoming legislation
of the EU that were examined in this article,
because both the EAA and the public procurement legislation are related to the Internal
Market of the EU.
The European Disability
Strategy 2010-2020 reaffirms
the commitment of the EU on
disability and accessibility
76CJEU 5 October 2000,
nr. C-376/98 (Germany/
Parliament and Council),
par. 106-107.
77Roadmap, European
Accessibility Act: legislative initiative to improve
accessibility of goods and
services in the Internal
Market.
78Roadmap, European Accessibility Act.
79Roadmap, European Accessibility Act.
80Roadmap, European Accessibility Act. This option
would include, among others, an obligation to design
products, environments,
programmes and services
to be usable by all people,
to the greatest extent possible, without the need for
adaptation or specialized
design.
81Roadmap, European Accessibility Act.
The proposed Directives on Public Procurement constitute a significant step towards the
fulfilment of this Strategy. They provide for
mandatory inclusion of disability accessibility in the technical specifications of the public
procurement works, which is really significant
for people with disabilities, particularly if we
consider that before this proposal there was
no obligation mandating such action. In addition, the issue of the ICT and Built environment Standards will aid the realisation of the
Public Procurement Directives with regard to
accessibility.
Finally, the EAA is a very ambitious idea
for EU legislation, because of the amount
of goods and services that can possibly be
included in the Act due to the immense scope
of the internal market. For the same reason
the adoption of this Act will be of great im-
Ars Aequi januari 2013 35
portance for people with disabilities. The EU
legal instrument that will be used to adopt
this Act has not been decided yet. In my opinion the most probable choice, at least from the
ones that are provided in the roadmap on the
EAA, is a Directive, mostly due to its flexible
nature. However, we must be aware of the
difficulties every legal instrument based on
article 114 TFEU has to face, because of the
article’s requirements. For the EAA, the challenge will be bigger, because of its massive
initial scope. This means that many products
of the EU Internal Market will be eliminated
from the scope of the EAA because they do not
fulfil the requirements of this article.
It will be interesting to see
what will be the outcome of the
proposed Directives on Public
Procurement, the content
of the EAA and what other
measures the EU will adopt
to implement this Strategy
in the forthcoming years
To sum up, the EU has taken steps towards
the implementation of the European Disabil­
ity Strategy 2010-2020. It will be interesting
to see what will be the outcome of the proposed Directives on Public Procurement, the
content of the EAA and what other measures
the EU will adopt to implement this Strategy
in the forthcoming years.