With the Accessibility Improvement Act (Barrierefreiheitsstärkungsgesetz – BFSG), German legislators want to encourage companies to remove barriers for people with disabilities in digital products and services. We explain who is affected by the BFSG and what requirements economic players have to fulfil.
In a nutshell
- The BFSG transposes an EU directive – the European Accessibility Act (EAA) – into national law.
- The Accessibility Improvement Act (full text (currently only in German)) comes into force on 28 June 2025. Some deadlines apply immediately, others later.
- The BFSG applies to digital products and services that are placed on the market, offered or provided in Germany after its entry into force.
- The individual material accessibility requirements for products and services have been regulated by the legislator in a Regulation to the Accessibility Improvement Act (BFSGV).
Why a law on accessibility?
Unrestricted participation in social life in all its facets and various possibilities is often not a matter of course. Participation is regularly linked to abilities, skills and other resources. People with disabilities or limitations therefore often face particular challenges.
Accessibility should help to reduce these challenges. However, this is not just about the accessibility of public spaces for wheelchair users or the visually impaired. Accessibility affects all people with permanent or temporary physical or mental disabilities – in all areas of life.
Viewed consistently, accessibility can therefore also mean, for example, the one-handed usability of digital devices and applications when a parent has a crying baby in their arms and is trying to call the poison control centre.
German implementation of the European Accessibility Directive
A standardised regulation for the participation of people with disabilities was previously found in the German Disability Equality Act (BGG). However, it only contains requirements for public bodies.
The Accessibility Improvement Act now transposes Directive (EU) 2019/882, the European Accessibility Act (EAA), into national law and thus obliges participants on the free market to consumers in future.
The German implementation does not go beyond the requirements of the European Directive and therefore does not utilise opening clauses with possibilities for more comprehensive regulation.
The BFSG does not affect regional public transport, products and services that are used for purely commercial purposes or the built environment of services (Art. 4 para. 4 EAA). Furthermore, the BFSG is not based on an inter§al purpose, such as the special enforcement of equal rights for women with disabilities and the consideration of additional grounds from § 1 of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz) (AGG), as set out in § 2 BGG.
Scope of application of the BFSG
The scope of application of the Accessibility Improvement Act includes digital products and services that fall under § 1 (2) and (3) of the BSFG and are placed on the market or offered or provided in Germany after 28 June 2025.
The distinction between products and services is made on the basis of the definitions in § 2 No. 2, 3 BFSG.
- Accordingly, a product can be a substance, a preparation or a good that has been produced by a manufacturing process. Excluded from this are foodstuffs, animal feed, living plants and animals, products of human origin and products of plants and animals that are directly related to their future reproduction.
- A service, on the other hand, is any self-employed activity that is generally provided in return for payment.
The products covered by the BFSG include
- Hardware systems for universal computers;
- Self-service terminals (payment terminals, ATMs, ticket machines, check-in machines, interactive self-service terminals);
- Consumer devices with interactive features that are used for telecommunication services or for access to audiovisual media services (smartphones, tablets, consoles);
- E-book readers.
The services covered include
- Telecommunications services (telephony and messenger services);
- Interactive self-service terminals for passenger transport services;
- Websites, services offered on mobile devices and electronic tickets for passenger transport services with the exception of urban, suburban and regional transport services;
- Banking services;
- E-books;
- Services in electronic commerce.
The largest area of application will be e-commerce services. According to § 2 No. 26 BFSG, these are telemedia services that are offered via websites and applications on mobile devices and are provided electronically and at the individual request of a consumer with a view to concluding a consumer contract. This implements Art. 2 Para. 2 lit. f of the EU Directive.
This refers to the online sale of all products and services, whereby only the websites and mobile applications of service providers are included for services and products that are not themselves covered by the Accessibility Improvement Act.
Requirements of the BFSG
The accessibility requirements apply to economic operators in accordance with § 3 (1) BFSG. These are manufacturers, authorised representatives, importers, distributors or service providers (service providers) in accordance with § 2 No. 15 BFSG. They are obliged to implement the requirements of § 3 and following BSFG. To this end, products and services that an economic operator provides on the market must be accessible. This is the case if they can be found, accessed and used by people with disabilities without particular difficulty and generally without assistance.
The legislator has issued detailed accessibility requirements, particularly in relation to individual product and service types, in a separate ordinance based on the authorisation to issue ordinances in § 3 (2) BFSG, the Regulation to the Accessibility Improvement Act (BFSGV).
Economic operators affected by the BFSG
Exemption for micro-enterprises
According to § 2 No. 17 BFSG, the requirements and other obligations do not have to be fulfilled (at least with regard to services) by micro-enterprises that employ fewer than ten people and whose annual turnover or annual balance sheet total does not exceed EUR 2 million.
For these micro-enterprises, however, there is a guideline from the German Federal Ministry of Labour and Social Affairs in accordance with § 3 (3) sentence 2 BFSG, which is intended to facilitate implementation and explains why implementation is worthwhile despite the lack of an obligation.
In addition, the German Federal Accessibility Agency offers advice for micro-enterprises in accordance with § 15 BFSG to facilitate the application of the law.
Manufacturer
According to § 2 No. 11 BFSG, a manufacturer is any natural or legal person or partnership with legal capacity that manufactures a product or has a product developed or manufactured and markets this product under its own name or brand.
Importer
According to § 2 No. 13 BFSG, an importer is any natural or legal person or partnership with legal capacity established in the European Union who places a product from a third country on the Union market.
Retailer
According to § 2 No. 14 BFSG, a distributor is any natural or legal person or partnership with legal capacity in the supply chain that makes a product available on the market, with the exception of the manufacturer or importer.
Service provider
According to § 2 No. 4 BFSG, a service provider is any natural or legal person or partnership with legal capacity that provides a service to consumers on the Union market or offers to provide such a service.
Authorised representative
According to § 2 No. 12 BFSG, an authorised representative is any natural or legal person or partnership with legal capacity established in the European Union who has been instructed in writing by a manufacturer to perform certain tasks on its behalf. The authorised representative performs the duties assigned to him by the manufacturer on the manufacturer’s behalf.
Obligations of the market players
The obligations of the market players vary according to their role.
Obligations of the manufacturer
In any case, the requirements of the Accessibility Improvement Act must be met for a manufacturer to be authorised to place products on the market (§ 6 (1) No. 1 BFSG). However, further requirements are
- technical documentation in accordance with Appendix 2,
- a conformity assessment with the accessibility requirements,
- a declaration of conformity in accordance with § 18 BFSG and
- CE labelling of the product in accordance with § 19 BFSG.
In addition, the manufacturer must inform the market surveillance authority if the product no longer fulfils the requirements and take appropriate corrective measures.
The product must be clearly and comprehensibly labelled individually, contain information about the manufacturer (in particular the postal address), as well as instructions for use and safety information in German (§ 7 BFSG).
The conformity assessment procedure in accordance with Annex 2 contains the following obligations:
- Technical documentation that can be used to assess compliance with the accessibility requirements, including an indication of which harmonised standards and technical specifications have been applied or which other solutions have been used to ensure compliance with the requirements. It must also include any evidence of a fundamental alteration or disproportionate burden of compliance with the accessibility requirements (see below under restrictions).
- The manufacturer must take all necessary measures to ensure that the manufacturing process and its monitoring comply with the technical documentation and the accessibility requirements.
- CE labelling must be affixed to each product and a written or electronic EU declaration of conformity must be issued for a product sample.
Obligations of the importer
The importer may only place a product on the market once the manufacturer has fulfilled all its obligations under § 6 and 7 of the BFSG (§ 9 BFSG). If he has reason to believe that the product does not fulfil the requirements of the BFSGV, he must inform the manufacturer and the market surveillance authority.
Furthermore, storage and transport conditions must not affect the compliance of the product with the accessibility requirements . In addition to the manufacturer, the product must contain information about the importer and he must ensure that instructions for use and safety information in German are included.
Obligations of the retailer
The distributor may only make the product available on the market once the manufacturer and importer have fulfilled their obligations, § 11 BFSG. He also has a duty to inform the market surveillance authority and the manufacturer or importer if he has reason to believe that the product does not fulfil the obligations of the BFSGV. With regard to storage and transport conditions, these must not affect the product’s compliance with the accessibility requirements.
Importers and distributors are subject to the obligations of a manufacturer if they place products on the market under their own name or brand or modify a product in such a way that conformity with the requirements of the Accessibility Improvement Act may be impaired.
Obligations of the service provider
According to § 14 BFSG, the service provider must also fulfil the requirements of the Accessibility Improvement Act. In addition, they must make information about the service available in an accessible manner in accordance with Annex 3 BFSG. This information must be retained for as long as the service is offered or provided. The service provider must react appropriately to changes in the requirements and take the necessary corrective measures in the event of non-compliance.
The service provider is also obliged to provide information to all market surveillance authorities of the member states in which it offers the service if it does not fulfil the requirements of the Accessibility Improvement Act, as well as an obligation to provide evidence in accordance with § 14 (4) and (5) BFSG.
The service provider must provide the information in Annex 3 in its general terms and conditions or in another clearly recognisable manner. They must explain how the accessibility requirements are met. The information contains the following elements:
- the consumer information already required under the consumer protection provisions of the German Civil Code (BGB) in accordance with Article 246 of the Introductory Act to the German Civil Code (EGBGB);
- a general description of the service in an accessible format;
- Descriptions and explanations that are necessary to understand the performance of the service;
- a description of how the service fulfils the accessibility requirements listed in the Ordinance to the BFSG;
- the name of the competent market surveillance authority.
Disclosure obligations of all players
According to § 13 BFSG, economic operators are obliged to name other economic operators from whom they have purchased products or to whom they have supplied products at the request of the market surveillance authority. The economic operator must retain this information for at least five years.
According to § 35 BFSG, economic operators are still obliged to provide the market surveillance authority with information that it requires to fulfil its tasks.
Restrictions on obligations under the BFSG
Fundamental changes
§ 16 (1) BFSG contains an exception: If a fundamental change to the product would be necessary to fulfil the accessibility requirements, the implementation obligation does not apply in this respect.
According to the explanatory memorandum to the law, a fundamental change is deemed to exist if the purpose that the product is intended to fulfil can no longer be achieved through conformity with the accessibility requirements. However, the change must affect the product itself. Lack of time, knowledge or priority are not sufficient reasons.
The relevant assessment shall be carried out and documented by the relevant economic operator and presented to the market surveillance authority on request. The documentation must be kept for five years from the date of the last provision of the service or supply of the product.
If an economic operator invokes the exception in § 16 (1) sentence 1 BFSG, it is obliged to immediately inform the market surveillance authorities of all member states in which the product is to be offered or the service is to be provided.
Disproportionate disadvantage
Furthermore, the requirements of the Accessibility Improvement Act pursuant to § 17 BFSG only apply insofar as it does not lead to a disproportionate disadvantage for the economic operator pursuant to Annex 4 BFSG. This assessment is to be made in the same way as in § 16 BFSG.
The criteria for assessing disproportionate disadvantage in accordance with Annex 4 BFSG are:
- the ratio of the net costs of implementing the accessibility requirements to the total costs of the respective economic operator,
- the estimated costs and benefits for economic operators in relation to the estimated benefits for persons with disabilities; and
- the ratio of the net cost of compliance with accessibility requirements to the economic operator’s net turnover.
If a market player invokes § 17 BFSG, it must in turn notify the market surveillance authority. There is a simplified process for micro-enterprises. A service provider must provide a corresponding assessment at least every five years, immediately if the service is changed or at the request of the competent authority.
Recourse to a disproportionate disadvantage is not possible, if the economic operator has received third-party funds for the purpose of improving accessibility.
Legal remedies, sanctions and fines
Both consumers and organisations for equal opportunities for people with disabilities can apply under § 32 BFSG for the market surveillance authority to initiate a procedure to implement measures to ensure the conformity of products and services with accessibility requirements. The procedure can also be initiated independently by the respective authority. It must initiate an inspection if a market player has invoked § 16 or 17 BFSG or if it has reason to believe that a product or service does not fulfil the accessibility requirements of the Accessibility Improvement Act (§ 21, 22, 28 BFSG).
If the assessment of conformity with the requirements is negative, it sets a reasonable deadline for the market player to take appropriate measures.
If this requirement is not met within the deadline, the market surveillance authority has the right to restrict or prohibit the product from being made available on the German market or to ensure that the product is withdrawn or recalled (§ 22 (4) BFSG).
In the case of services, the market surveillance authority may order the offer or provision to be discontinued (Art. 29 para. 3 BFSG).
In addition to the sanctions, fines of up to EUR10,000 or EUR100,000 can be imposed depending on the offence (§ 37 BFSG). More serious infringements include failure to fulfil the obligations for manufacturers, importers, distributors and service providers, as well as failure to affix the CE marking to a product or any other marking that could be mistaken for a CE marking.
The market surveillance authority decides on applications from consumers or corresponding associations by issuing a decision. Applicants have the right to appeal against a negative decision or failure to issue a decision (§ 33 BFSG). Associations in particular can represent consumers. Furthermore, consumers have the right to initiate arbitration proceedings in accordance with § 16 (1) BGG.
Market surveillance authorities according to BFSG
The market surveillance authorities for economic operators have to be formed in the individual federal states and most of them have not yet been appointed, according to a survey by activeMind.legal Rechtsanwälte.
Only Hesse has assigned the competence to the State Competence Centre for Accessible IT, which is already responsible for accessibility in the public sector. The federal states are endeavouring to set up a joint, cross-state authority based in Saxony-Anhalt by means of a state treaty. However, no further details are known at this time.
Hesse
Landeskompetenzzentrum Barrierefreie IT (LBIT)
Landgraf-Philipp-Platz 1-7
35390 Gießen
Telefon +49 641 303-2902
E-Mail: LBIT@rpgi.hessen.de
Web: https://lbit.hessen.de/
We will add further market surveillance authorities here as soon as we become aware of them.
Legal assessment of the BFSG
The Accessibility Improvement Act will bring about a number of changes in its area of application that will allow affected people to access and use products with digital content and digital services. However, the requirements in the BSFGV in particular are very openly formulated, meaning that there is uncertainty regarding the specific type of implementation in individual cases.
Even if the fines are not set particularly high (compared to the GDPR or the AI Act, for example), the potential measures taken by the authorities can hit companies hard. How rigidly the accessibility requirements are monitored depends on the agility and resources of the market surveillance authorities. The required equipment is prescribed in § 20 BFSG. As the market surveillance authorities of the federal states are still being established, there is a lack of practical experience.
However, the interpretation of the requirements in case law will be decisive. It is true that the route to legal redress for consumers in accordance with § 32 and 33 BFSG via the market surveillance authority and possibly via an association for equal opportunities for the disabled up to the administrative court action for an obligation or action for failure to act can be long. However, the requirements of the Accessibility Improvement Act and the BSFGV for market players could be interpreted by the courts as market conduct regulations within the meaning of § 3a of the German Unfair Competition Act (UWG,) so that competing companies are entitled to injunctive relief, removal and compensation claims against competitors who do not fulfil the requirements.
Recommendations for companies
In addition to the fulfilment of the requirements of the BFSGV, various information must be provided. In particular, the conformity assessment procedure in accordance with Annex 2 and information on the fulfilment of the accessibility requirements in accordance with Annex 3.
Furthermore, if the requirements of the Accessibility Improvement Act and BFSGV are implemented to a limited extent, assessments must be carried out, which must be documented and made available to the competent supervisory authority on request.
In order to maintain an overview of conformity with the requirements and formal prerequisites, companies should set up a accessibility management system and obtain comprehensive information about efficient and legally compliant implementation options.
In addition, manufacturers of products can appoint an authorised representative in accordance with § 8 BFSG to fulfil the manufacturer’s obligations on their behalf. This concerns
- the obligation to keep the EU Declaration of Conformity and the technical documentation for the market surveillance authority for a period of five years in accordance with § 6 (2) BFSG,
- to provide the market surveillance authority with all information in accordance with § 7 Para. 5 S. 1 BFSG and to hand over all documents in accordance with § 7 Para. 5 S. 1 BFSG, and
- cooperate with the market surveillance authority, at its request, on any action taken to bring the product into conformity, insofar as the products concerned fall within the authorised representative’s area of responsibility.
