Disproportionate burden is not a get-out. It is a document, a five-year clock, and a letter to your regulator

Every conversation about the European Accessibility Act reaches the same point: "and if it is too expensive, there is an exemption, right?"

There is. It is Article 14, and almost everyone who plans to rely on it has misunderstood what relying on it involves. It is not a defence you raise if someone complains. It is an assessment you carry out in advance, document, retain for five years, renew, and notify to your market surveillance authority.

Most teams get Article 14 wrong in three predictable ways:

• they treat it as an argument to make later, when undocumented reliance is itself a breach,
• they assume it is a size test, when it is a ratio calculation against their own costs and turnover,
• they take a public accessibility grant and do not realise it voids the defence entirely.

This guide is written for the operator deciding whether to invoke it, and the advisor who has to tell them what that costs.

• Decide whether you are actually relying on Article 14. If yes, the work starts now, not at complaint time.
• Gather the three Annex VI inputs: net compliance costs, overall operating and capital expenditure, and net turnover. This is an accounting exercise, not a technical one.
• Check whether you have received any funding, public or private, from sources other than your own resources, for improving accessibility. If so, the disproportionate burden limb is unavailable to you.
• Diarise two dates: the five-year renewal for services, and the five-year retention on the results.
• Draft the Article 14(8) notification to the market surveillance authority in every Member State where the product is placed or the service is provided.

What Article 14 actually gives you

Two limbs, in 14(1). The accessibility requirements apply only to the extent that compliance:

• (a) does not require a significant change in a product or service that results in the fundamental alteration of its basic nature, and
• (b) does not result in the imposition of a disproportionate burden on the economic operators concerned.

Note it is "and", not "or". Both conditions bound the requirements. And note what neither of them is: a company-size threshold. The microenterprise exemption is Article 4(5), it is services-only, and it is a different mechanism entirely.

The obligations that come attached

This is the part that surprises people.

14(2), carry out the assessment. Against the Annex VI criteria for the disproportionate burden limb. Per product and per service, not company-wide.

14(3), document it and keep it five years. Retention runs from the last making available of the product on the market, or from when the service was last provided, not from the date of the assessment. On request from the market surveillance authority, or the authority responsible for checking services, you provide a copy.

14(4), a narrow derogation. Microenterprises dealing with products are exempt from the requirement to document. They must still supply the relevant facts on request. Note the scope: products, not services.

14(5), renew it. Service providers relying on the disproportionate burden limb renew the assessment for each category or type of service: (a) when the service offered is altered, (b) when the authority asks, and (c) in any event, at least every five years. That third trigger fires without anybody doing anything.

14(6), the funding trap. Where an operator receives funding from sources other than its own resources, public or private, provided for the purpose of improving accessibility, it is not entitled to rely on the disproportionate burden limb. In Germany, the BAFA consulting subsidy covers 50% in the old Länder and 80% in the new ones, up to EUR 2,800, and accessibility is explicitly eligible. Taking it and then claiming disproportionate burden is not available to you.

14(8), tell the regulator. Where you rely on paragraph 1 for a specific product or service, you send information to that effect to the relevant market surveillance authority, or the authority responsible for checking services, in every Member State where the product is placed on the market or the service is provided. The second subparagraph exempts microenterprises from this notification.

Read 14(8) again. Invoking the exemption puts you on the regulator's list, not off it.

Legalithm materials are operational guidance only and do not constitute legal advice.

Annex VI, the three criteria

The assessment is not a narrative about how hard things are. It is three ratios and a benefit comparison.

Criterion 1. Ratio of the net costs of compliance to the overall costs, operating and capital expenditure, of manufacturing, distributing or importing the product or providing the service.

Annex VI then lists what goes into "net costs of compliance":

• (a) one-off organisational costs: additional human resources with accessibility expertise, training and acquiring competences, developing a new process for including accessibility in product development or service provision, developing guidance material, and the one-off cost of understanding the legislation itself.
• (b) ongoing production and development costs: designing the accessibility features, costs incurred in the manufacturing processes, testing the product or service for accessibility, and establishing documentation.

Criterion 2. The estimated costs and benefits for the operator, including production processes and investments, in relation to the estimated benefit for persons with disabilities, taking into account the amount and frequency of use of the specific product or service.

Criterion 3. Ratio of the net costs of compliance to the net turnover of the economic operator.

Criteria 1 and 3 both carry the same elements list in the Official Journal text, and it is repeated verbatim under each.

Two things follow from the structure. Criterion 3 makes turnover the denominator, so a profitable company cannot argue absolute cost: EUR 40,000 of remediation is a different ratio at EUR 500,000 turnover than at EUR 40 million. And criterion 2 forces a comparison against a benefit you do not control and cannot minimise by assertion.

Real-world example: an operator estimates EUR 25,000 to remediate a checkout, calls it disproportionate, and files nothing. Under Article 14 that is not a weak claim, it is no claim: undocumented reliance does not satisfy 14(3), and 14(8) notification never happened. The exemption was never invoked, so the requirements apply in full.

The delegated act that never came

Article 14(7) empowers the Commission to adopt delegated acts supplementing Annex VI, further specifying the criteria. The text says that when necessary, the Commission shall adopt the first such delegated act by 28 June 2020.

None has been adopted. The conditional "when necessary" means non-adoption is not a breach, but the practical effect stands: Annex VI remains unelaborated, six years after that date. There is no official methodology, no threshold ratio, and no worked example from the Commission.

That cuts both ways. There is no bright line you can point at to prove your ratio is disproportionate. There is also no bright line an authority can use against you. What survives in that vacuum is the quality of your documentation.

What a defensible assessment looks like

Per product or per service, not per company. Dated. Retained. Written before you rely on it.

1. Identify the product or service and the specific Annex I requirements you say are disproportionate. Not "accessibility", but the requirements.
2. Compute criterion 1: net compliance costs over overall opex plus capex, with the (a) and (b) elements itemised.
3. Compute criterion 3: net compliance costs over net turnover.
4. Address criterion 2: estimated costs and benefits against the estimated benefit for persons with disabilities, with the amount and frequency of use stated.
5. Record the funding position, explicitly. Confirm no external accessibility funding was received, or accept that the limb is unavailable.
6. Diarise the renewal: on service alteration, on authority request, and at five years.
7. Send the 14(8) notification and keep proof of sending.

None of this requires an accessibility audit. It is financial and organisational, which means it can be produced before, or entirely without, any technical testing. That also makes it the cheapest piece of EAA compliance work to start.

Common pitfalls, and how to avoid them

1. Treating it as a defence to raise later. Article 14(3) requires the assessment to be documented and retained, and 14(8) requires notification. Both are prospective. A claim first made in response to a complaint is unsupported.
2. Assessing the company instead of the item. The assessment is per product and per service. One company-wide memo does not cover a portfolio.
3. Taking the grant and keeping the defence. Article 14(6) is unconditional. External funding for improving accessibility, public or private, removes the disproportionate burden limb.
4. Forgetting the clock. Article 14(5)(c) renews the assessment for services at least every five years, whether or not anything changed. An assessment from 2025 that has not been revisited by 2030 has lapsed.

Can small companies claim disproportionate burden under the EAA?

Any economic operator can rely on Article 14(1)(b), but it is not a size test. It requires an assessment against the three Annex VI criteria, which measure net compliance costs against overall costs and against net turnover. The size-based exemption is separate: Article 4(5) exempts microenterprises providing services, meaning fewer than 10 persons employed and turnover or balance sheet total not exceeding EUR 2 million.

Do I have to tell the regulator if I rely on disproportionate burden?

Yes. Article 14(8) requires you to send information to that effect to the market surveillance authority, or the authority responsible for checking services, in every Member State where the product is placed on the market or the service is provided. The second subparagraph exempts microenterprises from this notification.

How long must I keep a disproportionate burden assessment?

Five years, under Article 14(3), calculated from the last making available of the product on the market or from when the service was last provided. Separately, service providers relying on the disproportionate burden limb must renew the assessment at least every five years under Article 14(5)(c).

Does taking a subsidy affect disproportionate burden?

Yes, and decisively. Article 14(6) states that where economic operators receive funding from sources other than their own resources, whether public or private, provided for the purpose of improving accessibility, they are not entitled to rely on the disproportionate burden limb.

Is there official guidance on how to calculate disproportionate burden?

No. Article 14(7) empowered the Commission to adopt a delegated act supplementing Annex VI, with a first act due by 28 June 2020 where necessary. None has been adopted, so the Annex VI criteria stand as enacted with no official methodology, threshold or worked example.

Official legal text

• Directive (EU) 2019/882, Article 14 and Annex VI: EUR-Lex HTML · ELI
• Section 17 BFSG, the German transposition: gesetze-im-internet.de

Disclaimer

Legalithm materials are operational guidance only and do not constitute legal advice. The authentic texts are those published in the Official Journal of the European Union and prevail over this representation in every case.