With note no. 3/2022, the Agency for Digital Italy ("AgID") delivered long-awaited clarifications on the scope of application of Article 3, para. 1-bis of Law No. 4 of January 9, 2004 - also known as the Stanca Law - providing an authentic interpretation of this provision.
Firstly, it is specified that the qualification of "provider" is not dependent on the legal form: subject to the turnover threshold discussed below, it includes private legal persons of any kind, as well as individuals and third-sector entities provided that they carry out economic-commercial activities subject to VAT.
The most awaited clarification, however, concerns the scope of the provision regarding the threshold of 500 million euros in average turnover in the previous three years of operation. The most ardent critics feared an easy sterilization of the rule since very few companies operating in Italy, considered independently, can boast similar results and the phenomenon of corporate grouping is well established. In this regard, AgID has delivered a plain statement, clarifying that "for the assessment regarding the existence of accessibility obligations, the Group is considered a single company", with significant practical implications.
In other words, if a company operating in Italy is well below the aforementioned turnover limit but it is part of a group of companies that collectively exceeds it, that enterprise should also - unless there is a disproportionate burden - comply with the accessibility requirements of the Stanca Law. Moreover, in such a context, attention will have to be turned not only to those companies which carry on the core business but also to all those supporting entities within the group (e.g. logistics, supply chain, financial services, etc.) which might nevertheless have accessibility obligations where they provide services to the public.
An important clarification, then, concerns the dreaded penalty under Article 9, para. 1-bis of the Stanca Law - i.e., an administrative fine of up to 5 percent of turnover. According to AgID, in accordance with the principle of personal responsibility, this percentage "will be related to the turnover of the entity and/or the individual entities responsible" and thus not to the turnover of the entire group of companies.
Lastly, AgID confirms that (a) the deadline for compliance with accessibility requirements for websites and mobile applications was 5 November 2022, and (b) all contracts entered into after the date of the publication of the Guidelines for Private Entities (i.e., 26 April 2022) must comply with accessibility requirements under penalty of nullity; contracts entered into before that date must be adjusted within one year of that date (i.e. 26 April 2023).
In conclusion, this note would seem to outline for the first time the foundations of AgID's approach to "private" digital accessibility: favouring a broad subjective application of the Stanca Law and clarifying as much as possible the areas of opacity, which still remain numerous, especially on the subject of coordination with the EAA and its transposition decree, before proceeding with the necessary surveillance and enforcement activities.
Authored by Christian Di Mauro and Guido Di Stefano.
