The Accessibility Directive: new accessibility rules for the financial sector

8 minutes

The European Union (EU) is a party to the United Nations Convention on the Rights of Persons with Disabilities. In a nutshell, the purpose of this convention is to ensure an improvement in the ability of persons with disabilities to enjoy all human rights and fundamental freedoms. This should lead to a more equal participation of persons with disabilities in society.

As a result from this convention, the EU adopted the Directive on Accessibility Requirements for Products and Services (the Accessibility Directive) in 2019. The Accessibility Directive’s aim is to increase equal participation of persons with disabilities by setting accessibility requirements that apply to all EU member states. The Accessibility Directive explicitly applies to many different financial products and services as well.

Although the Netherlands has missed the implementation deadline of 28 June 2022, the Dutch implementation law has been published and the Dutch implementation decree (for banking services) is currently subject to advice by the Council of State (Raad van Sate). The directive must be implemented by 28 June 2025, this deadline is almost upon us. Note that for some (existing) products and services a transitional period applies and certain microenterprises are exempted.

In this Finnius Blog, we do not provide a comprehensive exposition or exhaustive analysis of the entire Accessibility Directive and its implementation. Instead, we highlight the importance of the Accessibility Directive, emphasize that the new requirements apply to more financial undertakings than just (the explicitly named) providers of “banking services,” and briefly discuss the impact.

What is the importance of the Accessibility Directive?

Not only do the new requirements lead to better inclusion for persons with disabilities, but also for people who (for other reasons) experience challenges participating in an increasingly complex and digitized society. In fact, as you will read below, the accessibility requirements also include rules on readability and usability.

Such a barrier lies, for example, in the use of complicated language (posing a challenge for people with low literacy levels or an insufficient command of the Dutch language, amongst others) or digitization (such as older people who are not used to digital methods, young people who are less concerned with digital security or people with limited access to computers).

Digital accessibility, for example, has been a focus of the Dutch Authority for the Financial Markets (AFM) and The Dutch Central Bank (DNB) for years. Reference is made to the AFM calling on parties to make its services more accessible by taking into account all that is involved in digital skills, as well as DNB, which (with the National Forum on the Payment System, MOB) is taking action to making payments more accessible and available for vulnerable groups within society. In addition, the largest Dutch banks have also committed to making their digital services more accessible.

The accessibility directive thus fits into a larger picture of the collective effort to create a more inclusive society.

What requirements are laid down in the Accessibility Directive?

The Accessibility Directive applies to many different products and services to consumers. As far as the financial sector is concerned, the following are in scope, sorted in a manner consistent with the proposed Dutch implementation of the directive:

 

  1. Providers of credit, banks, investment firms, payment service providers, and electronic money institutions, which provide “consumer banking services”;

 

Banking services are the provision to consumers of the following services:

    • mortgage credit and consumer credit;
    • provision of the following investment services: receiving and transmitting orders in financial instruments, executing orders on behalf of clients, discretionary portfolio management and investment advice (including certain MiFID II ancillary services);
    • payment services and services linked to payment accounts; and/or
    • electronic money;

 

  1. Self-service terminals, which should include payment terminals and ATMs;
  2. E-commerce services: services provided at a distance, through websites and mobile device-based services by electronic means and at the individual request of a consumer with a view to concluding a consumer contract;

 

Through this “general” concept, more than just explicit banking services fall under the scope of the directive. Examples of such “financial” e-commerce services are:

    • offering, advising on, or intermediating in private insurance in an online manner;
    • offering online products that may not qualify as payment accounts, such as a traditional savings account with a fixed contra account.

 

The legislator proposes to include the rules for banking services in a new Section 4:22.0a of the Dutch Financial Supervision Act (DFSA) and Sections 32ac and 49.0c of the Decree on Conduct Supervision Financial Undertakings DFSA (Decree on Conduct). For self-service terminals and e-commerce services one can look in the new Sections 6:230fa to 6:230fd of the Dutch Civil Code (DCC) and 190aa of the Transitional Act New DCC.

Several of these new articles will refer to the annexes to the Accessibility Directive, which contain the specific accessibility requirements. General accessibility requirements for products and services (plus some special requirements for banking and e-commerce services) are listed in Annex 1 to the Directive.

The most notable accessibility requirements for banking services are:

 

  • Information about banking services shall be made available through more than one sensory channel, presented in a comprehensible and perceptible manner, where text should be convertible into alternative non-textual formats and displayed in an appropriate font using adequate contrast and customizable letter, line and paragraph spacing;
  • Banking services for consumers should address the needs of people with disabilities and interoperability with assistive technologies by ensuring appropriate identification methods, electronic signing, security and payment services, as well as that information is understandable – maximum level of complexity must be B2 [as opposed to this Finnius Blog].

 

Most of these accessibility requirements seem somewhat generic. For companies wondering how to implement it in a suitable and appropriate way in their own organization, the Accessibility Directive offers non-binding examples of possible solutions that contribute to meeting the accessibility requirements (Annex 2). There is also a list of functional performance criteria in case certain functions or features are not addressed by the requirements (Annex 1, Section VII).

For situations where the changes would result in a fundamental alteration and disproportionate burden, companies are not required to implement these changes. To assess when a disproportionate burden exists, criteria are listed in Article 14 and Annex 6.

What is the expected impact of the Accessibility Directive?

We consider the new accessibility requirements as a development that complements the existing calls from (for example) AFM and DNB to make information provided by the financial sector understandable and accessible to all.

In short, we believe the impact of the Accessibility Directive can be divided in three components: “design,” “information” and “processes”. Banking services should be accessible to all in their design. This means, for example, that information about the banking service should be understandable, carefully presented, and an alternative channel in place (e.g., text that can be transposed or read aloud). Persons with disabilities should also, as an example, be able to authorize an online payment in an accessible manner.

It is our belief that the accessibility requirements do not have to mean that all of an undertaking’s information disclosures have to be changed. In assessing the regulatory burden in the implementation decision, the legislator seems to assume the “preparation of information” will take a number of hours. That would imply that compliance with the accessibility requirements on the “information” component should be fairly self-contained.

For the “design” component, the requirements will liekly be “more” impactful. We can imagine that parts of products or services (such as online banking, online application portals and electronic identifiers) will have to be integrally assessed in order to achieve a correct implementation of the accessibility rules.

As far as “processes” are concerned, accessibility should also be integrated into the business processes (e.g. product governance) to ensure that services and information are designed in line with accessibility requirements and continue to comply with them in the future. In addition, the company should also be able to explain how its products and services comply with accessibility requirements as well as include information about this in the terms and conditions.

Action required

Compliance with the new accessibility requirements will not be an easy task. We recommend that market participants identify which of their products and services fall within the scope of the accessibility rules in the DFSA (banking services) or the DCC (e-commerce services and self-service terminals). Subsequently, it is necessary to assess which grounds for exemption might be relevant (“micro enterprises” or changes leading to a “fundamental alteration” as well as “disproportionate burden” are exempted) and to what extent transitional periods apply. Following such assessments, an analysis on existing business processes is required to assess where an initial and recurring test for accessibility requirements should be integrated. Ultimately, of course, this should also lead to implementation (where required).

Reporting obligation to and enforcement by the AFM

Finally, we note that these requirements are not entirely without obligation. For the financial sector (including financial e-commerce services), the AFM is charged with supervision and enforcement under the DFSA/Decree on Conduct and the Dutch Consumer Protection Enforcement Act (Wet handhaving consumentenbescherming). In doing so, the AFM may apply its usual administrative measures, such as an order subject to penalty or an administrative fine. When an undertaking discovers it is not compliant with the accessibility rules, it is obliged to proactively report this “non-conformity