also refer to article 3 of the directive for a full list. 1.1. Transport services .... procurement by entities operating
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BRIEFING NOTE Directive on a “European Accessibility Act”
On 2 December 2015 the European Commission announced the proposal for the ‘Directive of the European Parliament and of the Council on the approximation of the laws, regulation and administrative provisions of the Member States as regards the accessibility requirements for product and services’. This legislative act is knows as the European Accessibility Act (EAA). The basic idea behind the EAA is to improve the functioning of the internal market and remove and prevent barriers for the free movement of accessible products and services. The barriers occur through differences in legislation, standards and guidelines on accessibility between the member states, as suppliers face additional production costs to comply with divergent accessibility rules. Secondly, the EAA defines accessibility requirements for public procurement that falls under EU regulation, for the European Structural and Investment funds, for tendering public transport services and for transport infrastructure of the trans-European transport network. The resulting improved accessibility should act as a catalyst for social inclusion and implementation of the UN Convention on the Rights of Persons with Disabilities. City authorities and municipal companies will be affected in a number of areas through this directive, including:
transport services, together with mobile device-based services, smart ticketing, real time information, ticketing machines, check-in machines etc. related to the transport services, public procurement of goods, services and built environment, spending of the European Structural and Investment funds, websites related to the above services, information provision on the services, its accessibility, functioning and facilities, functions, practices, policies and procedures and alterations in the operation of the services targeted to address the needs of persons with functional limitations.
The proposal for the http://bit.ly/21Rbs0U
Directive
and
its
three
annexes
can
be
found
here:
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EUROCITIES response The European Commission has launched a public consultation on the proposal 1, which is open between 02/12/2015 and 02/02/16. We are preparing EUROCITIES response to the directive proposal, so we require your feedback on it and on the draft EUROCITIES position by 06/01/2016 (for a timeline, see annex 1 of this briefing) 2. In addition, we encourage our member cities can also respond to this consultation independently. About this briefing This briefing provides information on the key provisions of the Directive proposal that may affect cities to facilitate gathering views from EUROCITIES members. It outlines: 1. 2. 3. 4. 5. 6.
Provisions affecting cities EU standards Exemptions Enforcement Timeline for the implementation Review
1. Provisions affecting cities In general, the proposed Directive provides for harmonized EU accessibility requirements for persons with functional limitations, including persons with disabilities, for a number of products and services, based on the “design for all” or “Universal Design” approach. The accessibility requirements are detailed on the functional level (and not on a technical level). Goods and services already regulated by other EU legislations remain unaffected. This briefing outlines the most important areas that will affect cities, but members can also refer to article 3 of the directive for a full list. 1.1.
Transport services
The impact of the accessibility requirements for transport services on cities differ depending whether a city or a municipal company is a service provider or if they are tendered by public authorities. 1.1.1 Provisions affecting transport service providers Transport services in the Directive cover air, bus, rail and waterborne passenger transport services (article 3 paragraph 6). The accessibility requirements will apply to:
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Online public consultation: http://bit.ly/1XYo2qi
There will be further possibilities to carry out influencing activities on the Directive during the negotiations between the European Parliament and Council. This process can take between 1 to 3 years.
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provision of services to maximise their foreseeable use by persons with functional limitation, which include (1) providing information on the functionality and accessibility and (3) implementing functions, practices, policies and procedures and alterations in the operations of the services targeted to address the needs of persons with functional limitations; websites used for the provision of passenger transport services; mobile device-based services, smart ticketing and real time information; self-service terminals, ticketing machines and check-in machines.
The specific description of these accessibility requirements can be found in annex I, section V. Moreover, in the implementation of this directive member states may decide that the built environment used by the clients of passenger transport services shall comply with accessibility requirements of Annex I, section X of the directive. The directive also provides a number of obligations on services providers (for details see article 11), including:
preparation of the necessary information explaining how the services meet the accessibility requirements, putting in place procedures that guarantee the continuous provision of services remain in conformity with the accessibility requirements, providing a competent authority with all information necessary to demonstrate the conformity of the services with the accessibility requirements and cooperating with those authorities to take any action to bring the services in conformity with these requirements.
Already existing EU legislation in these areas will not be affected by this Directive proposal. This is the case, for instance of the Passenger Rights Regulations for all modes of transport 3, of EU legislation concerning the accessibility of passenger transport vehicles, such as low platform buses 4, rail rolling stock 5 and waterborne 6 and there are technical standards ensuring the accessibility of vehicles in different transport modes. 1.1.2 Tendering transport services and developing transport infrastructure that falls under TEN-T network The Directive affects tendering procedures for public passenger transport services by rail
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Regulation (EC)1107/2006: http://bit.ly/1ICs4mq
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Regulation (EC)661/2009: http://bit.ly/1NDRaBO
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Directive 2008/57/EC: http://bit.ly/1IRPkrs
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Directive 2009/45/EC: http://bit.ly/1lrj4Xi
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and by road under Regulation (EC) 1370/2007 7 (article 3, paragraph 3c) and transport infrastructure in the framework of trans-European transport network (TEN-T) under Regulation (EU) 1315/2013 8 (see annex 3 of this briefing for more details). The requirements will apply to: built-environment where the services are provided 9, facilities including vehicles, crafts and equipment, products used in the provision of the services, information about the functioning of the services and its accessibility characteristics and facilities, and to facilitate complementarities with assistive services, websites that are accessible and facilitate interoperability with a variety of user agents and assistive technologies, inclusion of functions, practices, policies and procedures and alterations in the operations of the services targeted to address the needs of persons with functional limitations.
The specific description of these requirements can be found in annex I, section IX A, B, C of the directive. Please note, one of the main differences between 1.1.1 and 1.1.2 for cities lies in the provisions regarding built environment.
1.2 Public procurement The EU procurement directives 2014/23/EU, 2014/24/EU and 2014/25/EU 10, which will be implemented at the member state level by April 2016, oblige procuring authorities to take into account accessibility criteria for persons with disabilities or design for all users for all procurement which is intended for use by natural persons, whether general public or staff of the contracting authority except in duly justified cases (see annex 2 of this briefing for details on these directives). However these directives do not define accessibility. Once the ‘European Accessibility Act’ directive is implemented, procurers will be obliged to use its provisions to define accessibility in procurement. This Directive will affect the procurement of: products, services, including facilities, websites, information, and functions, practices, policies and procedures, built environment
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Regulation (EC)1370/2007: http://bit.ly/1Ofyogq
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Regulation (EU)1315/2013: http://bit.ly/1meUlWf, and national maps for TEN-T : http://bit.ly/1NKFHAk
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Without prejudices to national and Union legislation for the protection of national treasures possessing artistic, historic and archaeological value.
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Directives on Public Procurement: http://bit.ly/1XRWSXi, http://bit.ly/1m8b6T4, http://bit.ly/1NT5Lv1
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The specific description of the accessibility requirements can be found in Annex I, section IX A, B and C. 1.3 The European Structural and Investment Funds (ESI funds) This Directive will impact preparation and implementation of programmes under Regulation (EU) 1303/201 11 on European Regional Development Fund (ERDF), the European Social Fund (ESF), the Cohesion Fund (CF), the European Agricultural Fund for Rural Development (EARD) and the European Maritime and Fisheries Fund (EMFF) and Regulation (EU) 1304/2013 12 of the European Parliament and Council. Six years after the entry into force of the European Accessibility Act (EAA) directive, , the functional standards provided will apply whenever the above mentioned EU regulations put an obligation to ensure accessibility in how the ESI funds are spent. The specific description of the accessibility requirements can be found in Annex I, section IX A, B and C.
2. EU standards The Directive provides that products and services in conformity with harmonised standards are presumed to be in conformity with the accessibility requirements covered by those standards. ‘Harmonised standard’ means a European standard adopted on the basis of a request made by the Commission for the application of Union harmonisation legislation. Where no reference to standards exists, and where further details for the accessibility of certain product or services would be needed for harmonisation of the market, the Commission may adopt implementing acts establishing common technical specifications (Article 14).
3. Exemptions The Directive proposal requires the implementation of these accessibility requirements to the extent that they do not introduce a significant change in an aspect or feature of a product or services and do not impose a disproportionate burden on the economic operators 13 concerned. Importantly, the burden shall not be deemed disproportionate where it is compensated by funding from other sources than the economic operator’s own resources, whether public or private. The directive provides for procedures that must be followed if an economic operator wants to be exempt from the obligations due to disproportionate burden: 11
Regulation (EU)1303/2013: http://bit.ly/1QsXYmp
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Regulation (EU)1304/2013: http://bit.ly/1NjfCUY
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The directive defines an economic operator as the manufacturer, the authorised representative, the importer, the distributor and the service provider.
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3.1 For competent authorities in procurement, use of ESI funds, tendering transport services and TEN-T transport infrastructure. The competent authorities for public procurement, ESI funds, tendering transport services and TEN-T transport infrastructure (as specified in paragraph 1.1.2 of this briefing) assess if the obligations impose a disproportionate burden and must notify the European Commission if they wish to use the exemption. The criteria for this assessment are outlined in article 22 paragraph 2 of the directive. 3.2 Producers and service providers Where economic operators wish to use an exemption, they need to notify the market surveillance authority of the member state in the market of which the product or services in places or made available (article 12 paragraph 6). The criteria for this assessment are outlined in article 12 paragraph 3. This assessment of products can be reviewed by the products market surveillance authorities (article 17 paragraph 2). Microenterprises 14 are exempt from this notification, but must be able to provide relevant documentation upon request.
4. Enforcement Member states shall ensure effective means to ensure the enforcement of the Directive, such as provisions for a consumer, public body or other legal entities on behalf of consumers, to take action under national law before courts of competent administrative bodies (article 25). Member states shall establish and implement and periodically update procedures to check the compliance of services listed in article 1 paragraph 2 (which includes transport services). Member states shall designate the authorities responsible for the implementations of these procedures and ensure that the public is informed of the existence of these obligations and make this information accessible.
5. Timeline for implementation The directive enters into force after it has passed votes in the European Parliament and the Council. (On average, Directives are adopted by the European Parliament and the Council after 1 to 3 years from the publication of the proposal.) Member states shall adopt laws, regulations and all administrative provisions necessary to comply with the EAA directive by two years after the entry into force of the directive (this process is called a transposition). The provisions at the member state level will apply six years after the entry into force of 14
A microenterprise is defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million.
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the Directive (so four years after the implementation into the national law). 6. Review The EAA directive also provides for a review of its application every five years. It is to be carried out by the European Commission, which is obliged to take into account the viewpoints of the economic stakeholders and relevant non-governmental organisations (article 28). The review is to take into consideration impact on economic operators and persons with disabilities and identify where possible areas for burden reduction. The Commission is obliged to submit a report to the European Parliament, the Council, The Committee of the Regions and the European Economic and Social Committee.
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Annexes Annex 1 Timeline for preparation of EUROCITIES response to the proposal for the European Accessibility Act directive: Time
Event
15/12/2015 Members receive a draft statement and briefing 06/01/2016 Deadline for members’ feedback 07/01/2016 Second draft prepared based on members’ feedback 08/01/2016 Steering group of Mobility and Knowledge Society Forums and Chairs of WG Public Services Receive the draft for final feedback 13/01/2016 Revision of the draft based on steering groups’ feedback; proof-reading and management approval at EUROCITIES secretariat 15/01/2016 Final version goes to ExCom 29/01/2016 Final version approved by ExCom 02/02/2016 Deadline for submission of the statement to the European Commission
Annex 2 Directive 2014/24/EU 15 on public procurement and Directive 2014/25/EU 16 on procurement by entities operating in the water, energy, transport and postal services sectors include a number of obligations on accessibility of publicly procured products and services: (1) Technical specifications: For all procurement which is intended for use by natural persons, whether general public or staff of the contracting authority, the technical specifications shall, except in duly justified cases, be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users. (2) Contract awarding criteria: The most economically advantageous tender from the paragraph of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing in accordance with Article 68, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question. Such criteria may comprise, for instance: (a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for
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http://bit.ly/1m8b6T4
16
http://bit.ly/1NT5Lv1
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all users, social, environmental and innovative characteristics and trading and its conditions. (…) (3) Principles of awarding contracts: Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. (4) Quality assurance: Contracting authorities shall, where they require the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain quality assurance standards, including on accessibility for disabled persons, refer to quality assurance systems based on the relevant European standards series certified by accredited bodies. Directive 2014/23/EU 17 on the award of concession contracts provides that technical and functional requirements shall define the characteristics required of the works or services that are the subject-matter of the concession may also refer to the specific process of production or provision of the requested works or services provided that they are linked to the subject-matter of the contract and proportionate to its value and its objectives. The characteristics may for instance include quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, terminology, symbols, testing and test methods, marking and labelling, or user instructions. Member States are obliged to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 April 2016. From then on city administrations will be affected. The Directive will apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the following thresholds: (a) EUR 5 186 000 for public works contracts; (b) EUR 134 000 for public supply and service contracts awarded by central government authorities and design contests organised by such authorities; where public supply contracts are awarded by contracting authorities operating in the field of defence, that threshold shall apply only to contracts concerning products covered by Annex III; (c) EUR 207 000 for public supply and service contracts awarded by sub-central contracting authorities and design contests organised by such authorities; that threshold shall also apply to public supply contracts awarded by central government authorities that operate in the field of defence, where those contracts involve products not covered by Annex III; (d) EUR 750 000 for public service contracts for social and other specific services listed in Annex XIV. 17
http://bit.ly/1XRWSXi
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The 2014 procurement Directives do not define accessibility. The European Accessibility Act (EAA) will do so. Until the EAA is implemented, procuring authorities can establish their own criteria for accessibility.
Annex 3 The Regulation (EU) 1315/2013 provides guidelines for development of transport infrastructure and specifies the requirements to comply with for the management of this infrastructure of the trans-European transport network (TEN-T). To see which transport infrastructure falls under the TEN-T network, see maps http://ec.europa.eu/transport/themes/infrastructure/ten-t-guidelines/maps_en.htm
The infrastructure of the TEN-T consists of the infrastructure for railway transport, inland waterway transport, maritime transport, air transport and multimodal transport. The regulation defines the core network (parts of the network which are of the highest strategic importance) and identifies 5 nodes, including the urban nodes. According to article 3(p) urban node means an urban area where the transport infrastructure of the trans-European transport network, such as ports including passenger terminals, airports, railway stations, logistic platforms and freight terminals located in and around an urban area, is connected with other parts of that infrastructure and with the infrastructure for regional and local traffic. Article 37 states that transport infrastructure shall allow seamless mobility and accessibility for all users, in particular elderly people, persons of reduced mobility and passengers with a disability. The EAA Directive will provide specific functional accessibility requirements for this purpose.
