European Accessibility Act: next steps for implementation in Italy and how to comply

Introduction

Recent studies show that there are approximately 87 million people with some form of disability in the European Union alone[1]. Even though the issue of disability has been an object of study and regulatory actions for many years, relentless technological and scientific progress has been accompanied by unequal access to the new solutions offered by this progress. Whether it is an augmented reality visor or a car (almost) driving itself, one may easily understand how these new solutions make life easier for many, but not for all. Persons with disabilities face significant barriers to accessing products and services daily, and the Covid-19 pandemic has only amplified these difficulties. The problem exists and is being addressed by European and Italian laws. For this reason, for some time now we have been witnessing the adoption of an increasing number of direct regulatory actions to ensure accessibility in the increasingly cross-cutting sector of digital products and services.

If we are to change perspective, a company providing digital products and services throughout the European Union in a non-accessible way loses an important market share, whereas a company that has fully conformed to the relevant obligations, even ahead of their entry into force, might enjoy an important competitive advantage. Ultimately, if the accessibility of digital products and services is not already a priority of every company's business strategy, perhaps it should be.

International and European legal framework

The rights of persons with disabilities was first addressed by the UN Convention for the Rights of Persons with Disabilities and its Optional Protocol, both approved by the Italian State on 24 February 2009. The Convention is the reference document when it comes to establishing the principles and priorities of legal and regulatory actions on the issue of disability. In particular, Article 9 provides that the Contracting States shall take appropriate measures so that access to information and communication, including the relevant systems and technologies, is guaranteed to persons with disabilities. Having regard to private individuals, Article 21(c) and (d) provides that Member States shall require private entities offering services to the general public such as the mass media, also through the Internet, to provide information and services with systems that can be accessed and used by persons with disabilities.

In the wake of the Convention, the European Commission has taken steps to define minimum standards for the protection of persons with disabilities. Insofar as relevant to the issue of digital accessibility, the most important innovations have recently been the Web Accessibility Directive[2] (or "WAD") and, most recently, the European Accessibility Act[3] (or "EAA").

The WAD, implemented in Italy by Leg. Decree No. 106 of 10 August 2018, represented the first step towards harmonisation of the European regulation on the provision of accessible websites and mobile applications to persons with disabilities and introduced important amendments to the Stanca Law, requiring compliance with the four principles of accessibility, namely perceivability, operability, understandability and robustness[4] and with European standard EN 301 549 v3.2.1 (2021-03)[5]. However, the WAD standards only refer to the Member States’ public bodies and not also to private companies.

Shortly after the WAD came into force, enactment of the EAA marked a change in the EU's approach to digital accessibility. Instead of focusing on enterprises, the EAA focuses its obligations on products and services, reaching a very wide range of economic operators, including private ones, with the exclusion of micro-enterprises alone. In order to mention just a few of them, this includes any manufacturer or supplier of consumer general purpose computer hardware and operating systems (i.e. smartphones, computers, smart TVs), audiovisual media access services (i.e. Youtube), electronic communication services (i.e. Whatsapp and Gmail), payment terminals, websites or apps concerning transport, banking or e-commerce services.

The obligations vary depending on the position of the economic operator concerned (i.e. a manufacturer or its authorised representative, an importer or a distributor). One of the most important obligations is undoubtedly the one concerning affixing of the CE marking – along with all ancillary activities - by the manufacturer, as a guarantee of compliance with the technical requirements provided by the directive. In this respect, under Article 15 of the EAA, the products and services involved will be presumed to comply with the EAA itself and its future implementation in Italy, if they comply with the standards as will be published by the Commission in the Official Journal of the European Union.

The deadline for the adoption of the EAA in Italy is set for 28 June 2022 and the provisions contained therein will be in force from 28 June 2025. At the moment, a first draft of the implementing decree[6] is available online and is currently submitted to the opinion of the competent parliamentary committees; it largely reproduces the text of the EAA with some clarifications concerning the competent supervisory authorities in Italy (the Ministry of Economic Development and the AgID) and the penalties (up to €40,000), which can be cumulated with those provided by the Stanca Law.

Italian regulatory framework

The reference standard for digital accessibility in Italy is the so-called "Legge Stanca"[7], whose primary aim is facilitating the access of persons with disabilities to IT tools. According to the Stanca Law, a computer service or website can be defined as "accessible" when the methods to access the information it contains can easily be accessed by users; efficiency of use is guaranteed by the separation of content, presentation and interfaces operation, as well as by the possibility of obtaining the same information through different sensory modes, regardless of the device used for access.

Having been changed several times, the Stanca Law was first amended in 2018 through the implementation of the WAD ("First Update"), then in 2020 by Decree Law No. 76 of 16 June 2020, converted into Law No. 120 of 11 September 2020 ("Second Update") and, lastly, by Law No. 233 of 29 December 2021 ("Third Update").

The addressees to which the Stanca Law originally referred were:

• public economic entities;
• private concessionaires of public services
• city-owned regional companies;
• public assistance and rehabilitation bodies;
• transport and telecommunications companies with a majority public capital holding and IT service contractors;
• bodies governed by public law as well as all entities receiving public grants or subsidies for the provision of their services through information systems or the Internet.

However, with the Second Update, the scope of the Stanca Law was extended to large private companies offering public services through websites or mobile applications, with an average turnover, during the last three years of activity, of over five hundred million euros.

The Stanca Law addressees:

1.         shall create accessible websites and applications - i.e. in line with the guidelines issued by the AgID;

2.         shall provide and periodically update a detailed, exhaustive and clear statement of accessibility on compliance of their websites and mobile applications with Law No. 4 of 2004. This statement shall include, inter alia, indications of the parts of the website or of the mobile application which cannot be accessed on grounds of disproportionate burden[8], with adequate justification of the reasons for their inaccessibility and of any alternative accessibility solutions provided by the subjects involved, along with a description of the feedback mechanism for users and the relevant link. The statement of accessibility is published on the website of the subject involved, in a place that shall easily be accessed by users. It should also be specified that the statement form, which is the same for websites and mobile applications, is defined by the guidelines referred to under Article 11 of the Stanca Law, in compliance with what was established by the European Commission, and shall necessarily be drawn up through a portal to be found on AgID’s website.

3.         cannot execute agreements for the creation and change of websites and mobile applications when they are not expected to comply with the accessibility requirements established by the AgID guidelines, under penalty of nullity. In the event of renewal, amendment or novation of contracts in force upon publication of the guidelines referred to under Article 11, they shall be adjusted, under penalty of nullity, to the provisions of the aforesaid law on compliance with the accessibility requirements, with the aim of achieving such adjustment within twelve months from the date of adoption of the above guidelines.

4.         shall make available to employees with disabilities the hardware and software equipment and assistance technology needed for the specific disability, also in case of telework, in connection with the tasks actually performed. It should be noted that this provision actually applies to all public and private employers and not only to the Stanca Law addressees.

A particularly interesting aspects concerns the guidelines issued by the AgID[9] under Article 11 of the Stanca Law to establish the technical requirements for the accessibility of IT tools. Indeed, their latest version was adopted before the Second Update and is therefore exclusively addressed to public or “para-public” entities[10]. Therefore, no official technical references are currently available to large private companies in respect of compliance with the obligations provided by the same law.

In addition to preparing the guidelines referred to in Article 11, the Stanca Law has assigned AgID a number of tasks, including supervising the accessibility of the digital services provided by the subjects involved.

In the event of breach of the aforementioned provisions by large private companies, AgID may carry out the necessary investigations and, if any non-compliance is found, it may set a deadline by which the entity involved is required to rectify the situation. In the event of non-compliance with such notice, AgID reserves the right to apply administrative fines of up to 5% of the turnover of the entity involved. However, until the new AgID guidelines are issued, private companies do not have the necessary technical tools to comply with the obligations laid down in the Stanca Law. For instance, the statement accessibility is drafted and published using only the application available on the AgID website[11]. Even if a private party wished to draw up its own statement of accessibility, it would not be able to do so, since the platform is reserved for public administrations. Similarly, how could a private company enter into a website creation agreement with a clause requiring compliance with the accessibility requirements set out in the guidelines, when these guidelines are not addressed to private entities?

To conclude: we can only hope for some final clarifications by AgID when the new guidelines for private entities are issued.

Next steps

To date, there are few obligations in terms of digital accessibility, and they are set forth in the Stanca Law. The least controversial one is provided for in Article 4, paragraph 4, which requires all public and private employers to provide employees with disabilities with hardware and software equipment appropriate to the specific disability, including in the event of teleworking, based on the tasks actually performed. For the purpose of ensuring strict compliance with this obligation, AgID has issued technical specifications with respect to the hardware, software and assistive technologies of workstations available to employees with disabilities[12]. Having said that, the various assistive products on the market are not equivalent for all users, even when their function and costs are identical. The use of each of them should be agreed between the employer and the employee, and the latter’s preferences shall, as far as possible, have priority if the employee has a proven, specific prior knowledge of the tool and its manners of use: if there are employees with the same disability, individual features should be taken into account.

The other obligations, applicable only to large private companies defined in Article 3(1-bis), are quite unclear. The main obligation provided for by the Stanca Law – i.e. ensuring accessibility of websites and applications – cannot be fully complied with, as there are no AgID guidelines applicable to private entities as well. There would also be an obligation not to enter into agreements for the creation and amendment of websites and mobile applications if such agreements do not comply with the accessibility requirements set out in the guidelines, or otherwise the agreement shall be null and void; in this regard, as noted above, it is not clear how a private entity may require a private contracting party to comply with guidelines that do not apply to either of the two parties. Similarly, a private person cannot currently comply with the obligation to publish the statement of accessibility either, since the AgID platform on which such statement shall be drawn up is not accessible to private parties.

This situation of uncertainty, however, is set to change.

In the course of 2022 AgID is expected to issue guidelines for large private companies as defined by Article 3, paragraph 1-bis of the Stanca Law, and therefore large private companies shall also abide by the specifications contained therein. Moreover, in 2022 AgID is also likely to update its online platform so as to enable private companies to publish their statement of accessibility.

As of 28 June 2025, all persons falling within the scope of the EAA, i.e. a large number of players in the digital sector with the exception of micro-enterprises only, will have to comply with the obligations set forth in the implementing decree to be issued later this year.

Thus, in the next three years - though it would not be surprising if this happened in a shorter time span – there will be an acceleration in the implementation of digital accessibility laws and regulations. The new requirements (and potential sanctions) will prompt all relevant stakeholders to reconsider their policies. Those involved in website, software or hardware development know that integrating new structural features into a product whose design has already been finalised may be complex, and they also know that, sometimes, this can mean redesigning the product as a whole.

Making a difference means being aware of the obligations required by the applicable laws and regulations, both now and in the years to come. Taking them seriously, and in time, is the first, major step to avoid severe penalties in the near future.