Understanding the Exception According to Section 17 EAA "Disproportionate Burden"

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Because we are based in Germany, the explanations in this article are Germany-centric. But the core principles also apply to the European Accessibility Act (EAA) in other countries of the EU.

You have certainly heard of the European Accessibility Act (EAA), which applies starting June 28, 2025 [1]. It ensures that many digital products and services become accessible. But what if implementation is simply not economically feasible for you as a provider?

Exactly for this purpose, there are exceptions. The most important and widely discussed is the "disproportionate burden" from Section 17 of the Act [1]. I will show you exactly what this means, how you check if it applies to you, and which pitfalls you absolutely must avoid.

What Does "Disproportionate Burden" Mean?

Imagine you had to overturn your entire business model or faced near-insolvency due to the costs of conversion. This is exactly where Section 17 of the EAA [1] comes in:

The accessibility requirements of the legal ordinance to be issued under Section 3 (2) apply only to the extent that compliance therewith would not lead to a disproportionate burden according to Annex 4 on the economic operator concerned. The economic operator shall carry out an assessment accordingly.

The word "to the extent" is important. This is not a carte blanche to ignore the entire law. It means that you might have to make 95% of your offering accessible, but for one very specific feature that is extremely expensive to convert, you could claim an exception.

The Important Distinction: "Fundamental Alteration" vs. "Disproportionate Burden"

Two sections are often confused. However, it is crucial to know the difference between "Fundamental Alteration" (Section 16) and "Disproportionate Burden" (Section 17).

Section 16 Fundamental Alteration

This concerns the nature of your product. The exception applies if the accessibility requirements necessitate a "material change" that leads to a "fundamental alteration of the essential characteristics" of the product or service (according to Section 16 Para. 1 EAA [1]).

Example: Imagine you sell a purely analog measuring instrument. If you now had to install a digital display and voice output, this would fundamentally alter the product in its core (its "essential characteristic").

Section 17 Disproportionate Burden

This is purely about economic feasibility. The nature of the product would not change, but the costs of implementing accessibility are simply too high relative to your economic situation (according to Section 17 Para. 1 EAA [1]).

Example: You have complex software with an old codebase. Converting a specific function would not change the nature of the software, but it would cost 200,000 euros, while your annual turnover is only 300,000 euros. That is (potentially) disproportionate.

We are focusing entirely here on Section 17, the economic burden. A detailed guide to Section 16 can be found here.

The Process: How Do You Assess the Burden?

You cannot simply say: "It's too expensive for me." The EAA requires a formal process as with Section 16, consisting of three steps.

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There is a very clear case in which you can never invoke a disproportionate burden:

If you have received external public or private funds (i.e., grants, subsidies, etc.) that were intended specifically for the purpose of improving accessibility, the exception is off the table (according to Section 17 Para. 4 EAA [1]). Logical, right?

Here is a small decision tree that visualizes the process for you:

Flowchart: Assessment of Disproportionate Burden (§ 17 EAA)

Open textual description for "Flowchart: Assessment of Disproportionate Burden (§ 17 EAA)"

This flowchart describes the formal process for assessing whether a disproportionate burden exists under § 17 EAA.

1. The process begins at "Start: You assess § 17 (Disproportionate Burden)".

2. First decision: "Are you a microenterprise providing services?"

   • Yes: Leads to "You are exempt under § 3 (1) EAA. § 17 is not relevant." (End, green).
   • No: Continue with step 3.

3. Second decision: "Have you received funding specifically for accessibility?"

   • Yes: Leads to "Exemption under § 17 (4) EAA not possible. You must comply." (End, red).
   • No: Continue with step 4.

4. Action: "Conduct the assessment under § 17 (1) in conjunction with Annex 4."

5. Third decision: "Are the costs of implementing accessibility disproportionate compared to your budget/revenue/benefit?"

   • No: Leads to "No exemption. You must meet the requirements." (End, red).
   • Yes: Continue with step 6.

6. Action: "Document the assessment (§ 17 (2))."

7. Fourth decision (after documentation): "Are you a microenterprise (products)?"

   • Yes: Leads to "Obligations fulfilled. Provide evidence upon request." and then to "Exemption (temporarily) lawfully applied." (End, green).
   • No: Continue with step 8.

8. Action: "Immediately inform the market surveillance authority (§ 17 (5))."

9. The process ends at "Exemption (temporarily) lawfully applied." (End, green).

The Assessment (Annex 4 is Your Compass)

You must carry out a detailed assessment (according to Section 17 Para. 1 EAA [1]). Your benchmark for this is Annex 4 of the EAA [1]. This annex provides clear criteria that you must examine.

These are the most important criteria from Annex 4:

1. Ratio of Net Costs to Total Budget: What are the net costs of accessibility (e.g., personnel, training, planning, tests) relative to your total operating and investment expenditures? (see Annex 4 No. 1 EAA [1])
2. Ratio of Net Costs to Turnover: What are the net costs of accessibility relative to your net turnover? (see Annex 4 No. 3 EAA [1])
3. Cost-Benefit Analysis: This is where it gets tricky. You must weigh your estimated costs and benefits (e.g., investments) against the estimated benefit for people with disabilities. In doing so, you must also consider how often the product or service is actually used (see Annex 4 No. 2 EAA [1]).

The Documentation (Your Shield)

If your assessment concludes that a disproportionate burden exists, you must absolutely document this assessment (according to Section 17 Para. 2 EAA [1]).

• What? The entire assessment, all criteria from Annex 4, your calculations, and your conclusive decision.
• How long? You must retain this documentation for five years (calculated from the last time the product was made available or the service was last provided).
• For whom? Upon request, you must present this documentation to the market monitoring body (according to Section 17 Para. 2 EAA [1]).

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If you are a micro enterprise (fewer than 10 employees and max. 2 million euros turnover/balance sheet total, according to Section 2 No. 17 EAA [1]) and deal with products, you do not have to retain the 5-year documentation. However, upon request, you must submit the facts of your assessment to the authority (according to Section 17 Para. 2 Sentence 3 EAA [1]).

For micro enterprises providing services, Section 17 is generally not relevant, as they are completely exempt from the accessibility obligations anyway according to Section 3 Para. 1 Sentence 1 EAA [1].

The Notification (Being Proactive)

It is not enough to keep the documentation in a drawer. If you invoke Section 17, you must inform the competent market monitoring body without delay (according to Section 17 Para. 5 EAA [1]).

In Germany, this will be the market monitoring body of the states for the accessibility of products and services starting September 29, 2025 [2]:

• Address: MLBF, c/o Ministry of Labor, Social Affairs, Health, and Equality Saxony-Anhalt, Postfach 39 11 55, 39135 Magdeburg
• Phone: +49 391 567 69700
• Email: MLBF(at)ms.sachsen-​anhalt.de

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This also applies here: Micro enterprises are exempt from this notification obligation (according to Section 17 Para. 5 Sentence 2 EAA [1]).

An Example: The "Sample App GmbH" (Ltd.)

Imagine the "Sample App GmbH" (Ltd.). It is an SME (Small and Medium-sized Enterprise, according to Section 2 No. 18 EAA [1]) with 40 employees and 5 million euros turnover. It offers an app in electronic commerce (falling under Section 1 Para. 3 No. 5 EAA [1]).

• Problem: A feature of the app is a 10-year-old 3D viewer for product models. Converting this viewer to accessibility (e.g., screen reader compatibility, keyboard operation) would be extremely complex.
• Assessment (Step 1):
  1. The GmbH obtains quotes. The net costs for the conversion amount to 150,000 euros.
  2. This is relative to the net turnover of 5 million euros (3%) and the total IT costs of 800,000 euros (approx. 19%). This alone may not yet be disproportionate.
  3. However (Criterion Annex 4 No. 2 [1]): The GmbH checks usage. Only 1.5% of all users access the 3D viewer at all. The estimated benefit for people with disabilities relative to the enormous costs is classified as very low.
• Result: The GmbH decides that a disproportionate burden exists for this one feature.
• Action (Step 2 & 3):
  1. It documents the quotes, usage statistics, and the weighing according to Annex 4 in detail (according to Section 17 Para. 2 EAA [1]).
  2. It informs the competent market monitoring body about invoking Section 17 for the 3D viewer (according to Section 17 Para. 5 EAA [1]).
  3. Crucially: The rest of the app (login, shop, payment process, contact forms) is fully implemented accessibly according to the EAA.

Here is another visualization of the example:

Flowchart: Example Muster-App GmbH

Open textual description for "Flowchart: Example Muster-App GmbH"

This flowchart illustrates the decision-making process of Muster-App GmbH regarding the accessibility of its E-Commerce app, which consists of a core area and a 3D viewer.

1. The process begins at "Start: Muster-App GmbH with the E-Commerce App".

2. Action: "Obtain cost estimate for accessibility".

3. The app is divided into two parts: "Core App (Shop, Checkout)" (D) and "3D Viewer" (E).

4. Core App Path:

   • Analysis of the core app (F): Usage is very high (100% of users, G); costs are very low (5,000 EUR, H).
   • Result: "No disproportionate burden" (I, red).
   • Action: "Implement accessibility for core app" (J), leading to "Conformity achieved" (Z, green).

5. 3D Viewer Path:

   • Analysis of the 3D viewer (K) per Annex 4: Costs are high (150,000 EUR, L); usage is very low (1.5% of users, M).
   • Evaluation (N): Balancing costs vs. benefits leads to "Disproportionate burden identified" (O, green).
   • Action 1: "Prepare documentation (§ 17 (2))" (P).
   • Action 2: "Notify the authority (§ 17 (5))" (Q).
   • End: The process also leads to "Conformity achieved" (Z, green), since the exemption for that specific component was lawfully applied.

Risks of Misuse: What Happens If Things Go Wrong?

Invoking Section 17 "just like that," without a proper assessment and documentation, is extremely risky.

The market monitoring bodies (regulated in Sections 20 et seq. and 28 et seq. EAA [1]) will monitor compliance with the law. If you invoke Section 17, they will review your assessment (according to Section 21 Para. 3 EAA for products and Section 28 Para. 3 EAA for services [1]).

If they determine that your claim to the exception is not justified, your product or service is considered non-compliant.

The consequences are severe:

1. Request for Conformity: You will be given a deadline to remedy the deficiencies (according to Section 22 Para. 2 and Section 29 Para. 1 EAA [1]).
2. Measures up to Prohibition: If you fail to comply with the request, the authority may restrict, prohibit, or even order a recall of your service or product (according to Section 22 Para. 4 and Section 29 Para. 3 EAA [1]).
3. Fine: Anyone who places a non-compliant product on the market or provides a non-compliant service acts illegally (according to Section 37 Para. 1 No. 1 and 8 EAA [1]). This can be punished with a fine of up to 100,000 euros (according to Section 37 Para. 2 EAA [1]).

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Important: The authority does not first have to issue a request for conformity before imposing a fine (according to Section 37 Para. 3 EAA [1]). This means you must expect a fine immediately if you act without a valid assessment and documentation.

Conclusion

The exception of "disproportionate burden" under Section 17 EAA is an important but sharp sword. It is not a free pass, but a clearly defined, formalized process.

Always remember:

1. It is an exception, not the rule: The legislator wants accessibility.
2. "To the extent": The exception almost never applies to your entire offering, but only to specific parts where the cost-benefit analysis (according to Annex 4) clearly tips the balance.
3. Documentation is everything: Without a proper, traceable assessment that you retain for 5 years, you risk sensitive penalties during an inspection.
4. Be proactive: If you are not a micro enterprise, notification to the market monitoring body is mandatory.

Use this exception carefully, cleanly documented, and only where it is truly appropriate. For the majority of your offering, the goal should always be full conformity.

Frequently Asked Questions (FAQ)

Do I have to redo the assessment every few years?

Yes, at least for services. Section 17 Para. 3 EAA [1] stipulates that service providers must repeat their assessment at least every five years. You must also redo it if you change your service.

What about micro enterprises?

Once again for clarification:

1. Services: Micro enterprises are completely exempt from the accessibility obligations according to Section 3 Para. 1 Sentence 1 EAA [1]. Section 17 is not relevant to them.
2. Products: Micro enterprises must meet the requirements but can also invoke Section 17. They have reduced obligations: no 5-year documentation requirement (but facts upon request) and no proactive notification obligation to the authority (according to Section 17 Para. 2 and 5 EAA [1]).

Does the exception apply to my entire product?

That is very unlikely. The law states "to the extent" (according to Section 17 Para. 1 EAA [1]). This means you must implement every aspect of your product or service that is not disproportionate. A blanket exception for an entire online portal will hardly stand up to market monitoring.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. The application of Section 17 EAA is a complex decision based on individual cases. I assume no liability for the accuracy or completeness of the information presented here. Please consult a specialized lawyer for your specific situation.

1. Bundesministerium der Justiz und für Verbraucherschutz, “Gesetz zur Umsetzung der Richtlinie (EU) 2019/882 des Europäischen Parlaments und des Rates über die Barrierefreiheitsanforderungen für Produkte und Dienstleistungen (Barrierefreiheitsstärkungsgesetz – BFSG).” 2023. [Online]. Available: https://www.gesetze-im-internet.de/bfsg/ ⤴
2. Landesportal Sachsen-Anhalt, “Marktüberwachungsstelle der Länder für die Barrierefreiheit von Produkten und Dienstleistungen.” 2025. [Online]. Available: https://ms.sachsen-anhalt.de/themen/menschen-mit-behinderungen/aktuelles/marktueberwachungsstelle-der-laender-fuer-die-barrierefreiheit-von-produkten-und-dienstleistungen ⤴