Rechtsanwältin, Senior Associate
Out-Law News | 25 Mar 2010 | 3:42 pm | 4 min. read
Many goods, such as mobile phones or digital television devices, are not easily usable by people with visual impairments. Some disability rights campaigners had claimed that a previous draft of the Directive would force manufacturers to change the way goods are made.
But the Presidency has published amendments to the draft Directive that make it clear that the planned law does not change the legal landscape for manufacturers.
"This Directive shall not apply to the design and manufacture of goods," said an amendment to Article 4 of the proposed Directive tabled by the EU Presidency.
The European Blind Union and the UK's RNIB had claimed that the previous draft of the Directive did mandate a change in the law through Article 3, clause 1 (d), which prohibits discrimination in relation to "access to and supply of goods and other services which are available to the public, including housing".
"It is our position that, as far as disabled people are concerned, effective access to manufactured goods implies that these goods are designed accessibly in the first place," said Carine Marzin, European campaigns officer of RNIB.
That clause, though, says that it is about access to and supply of goods. This is an area arguably already covered by UK law, which says that providers of services must not discriminate against people on the grounds of their disability. The Disability Discrimination Act requires that shops and websites are accessible to disabled people but it stops short of requiring that the actual goods sold be accessible.
The Presidency's amendments make it clear that the RNIB's and European Blind Union's interpretations of the clauses should not become law.
Not all advocacy groups had interpreted the draft Directive in that way. The European Association of Service Providers for People with Disabiltities (EASPD) published a position paper in which it acknowledged that the original draft Directive did not force manufacturers to make accessible goods.
"EASPD calls for the accessibility requirement for the provision of goods to actually be extended to the goods themselves, as accessibility to goods that cannot be used by disabled people because of their design will not have a positive impact on their lives and would still constitute discrimination," it said.
The Presidency's proposed changes have not been accepted by the Working Party on Social Questions, a committee of officials from the EU's 27 member states which must reach agreement before passing the issue on for approval by the Council of Ministers.
"Not much filters from Working Group meetings but what I've learned is that there was not agreement on the proposal on the meeting of the 18th [of March], and that the Spanish Presidency has been asked to redraft its proposal," said RNIB's Marzin.
She said that because the meetings are not publicly minuted there is no way to tell whether or not the objections focused on the controversy over goods manufacturing or if the objections were based on other issues.
Many goods are not accessible to people with disabilities. A position paper from the European Blind Union published last year while goods were still potentially covered by the draft Directive outlined what some of the problems are.
"Inaccessible products are barriers to independent living for blind and partially sighted people," it said. "For blind and partially sighted people, digital television is inaccessible because the interface requires the user to be able to see menus and programme information on the television screen.
"For many blind and partially sighted people, as for people with other disabilities, a mobile phone is an essential item. Unfortunately, accessibility issues with regard to electronic communications are addressed in a very patchy way in EU legislation," it said. "Blind and partially sighted people have to buy expensive ‘smartphones’ with an operating system that can support the assistive technology software they need, such as text-to-speech or screen magnification software."
The UK is one of the countries lobbying for goods to remain outside of the scope of the Directive, Marzin said.
"The UK is part of a group of member states that forms a majority that does not support manufactured goods being covered by this Directive," she said. "The UK is suggesting that the preferred approach would be to develop further the route of standardisation in order to make sure that eventually accessible goods are delivered to the market."
Marzin said, though, that there is no reason to think that standardisation will deliver in the future benefits to blind people that it has not provided so far.
"The problem we have with that is that standardisation is a voluntary process so there would not be a legislative lever to make sure that the manufacturers of goods consider accessibility in the design phase of manufactured goods," she said. "Standardisation has been available for a number of years now and still has not delivered, so we can't see why doing more of same will deliver now."
Editor's note, 29/03/2010: We had asked the Government Department for Business, Innovation and Skills (BIS) why it opposed the extension of the Directive to goods. We received the following response by email, after publication:
"The Government is strongly in favour of inclusive design, which is reflected in our ratification of the UN Convention on the Rights of Persons with Disabilities. However, we are not persuaded that applying legislative requirements on industry through this Directive is the most effective approach.
The main relevance of the draft Directive is to supply of goods, ensuring that it is unlawful to refuse to supply a product to a person on the grounds of disability (or other protected ground covered by the Directive).
Article 4 of the Directive concerns accessibility and the requirement to make reasonable accommodation. Design and manufacture does not easily lend itself to a global ‘reasonable accommodation’ approach in the same way that the supply of goods and services would.
Including design and manufacturing in the Directive could pose a considerable risk because in the absence of case law, there is no clear understanding of what manufacturers would need to do to meet legislation. Building up case law could take years, adding extra pressure and cost on the judicial system, but more importantly delaying any positive outcomes for disabled people.
We believe there are quicker and more effective ways to encourage the adoption of universal design principles than the Directive, and we are actively exploring other approaches in consultation with disabled people and stakeholders."
Rechtsanwältin, Senior Associate