Understanding the Exception under Section 16 EAA "Fundamental Alteration"

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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 would change your product so fundamentally that it would no longer be recognizable in its core?

Exactly for this scenario, there are exceptions. Besides the "disproportionate burden" (Section 17), there is Section 16 "Fundamental Alteration" [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 "Fundamental Alteration" mean?

Imagine you had to redesign your product in such a way that it loses its actual purpose or its core identity—its "essential characteristic." This is precisely where Section 16 of the EAA [1] comes in:

The accessibility requirements of the legal ordinance to be adopted pursuant to Section 3 (2) shall apply only to the extent that compliance therewith does not require an essential modification of a product or service that leads to a fundamental alteration of the essential characteristics of the product or service. The economic operator concerned shall carry out an assessment as to whether compliance... would entail a fundamental alteration...

The word "insoweit" (to the extent) is important here as well. This is not a carte blanche. Even if you have a product that falls under the exception (e.g., a purely mechanical clock), your website through which you sell it must still be accessible.

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

These two sections are often confused. However, it is crucial to know the difference because the basis for assessment is completely different.

Section 16 Fundamental Alteration

This deals with the nature of your product. The exception applies if the accessibility requirements require an "essential modification" that leads to a "fundamental alteration of the essential characteristics" of the product or service (according to Section 16 (1) EAA [1]). It is not primarily about money, but about the identity of the product.

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 viability. The nature of the product would not change, but the costs for implementing accessibility are simply too high in relation to your economic situation (according to Section 17 (1) EAA [1]). The assessment is carried out according to the financial criteria in Annex 4 of the EAA [1].

Example: You have complex software. Retrofitting a function would not change the essence of the software, but it would be extremely expensive.

Here we focus entirely on Section 16, the change in essential characteristics. You can find a detailed guide to Section 17 here.

The Process: How do you assess the alteration?

You cannot simply say, "This changes my product too much." The EAA requires the same formal process as for Section 17, but with a different basis for assessment.

Here is the decision tree for Section 16:

Flowchart: Assessment of Fundamental Alteration (§ 16 EAA)

Open textual description for "Flowchart: Assessment of Fundamental Alteration (§ 16 EAA)"

This flowchart describes the formal process for assessing whether a fundamental alteration exists under § 16 EAA.

1. The process begins at "Start: You assess § 16 (Fundamental Alteration)".

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

   • Yes: Leads to "You are exempt under § 3 (1) EAA. § 16 is not relevant." (End, green).
   • No: Continue with step 3.

3. Action: "Conduct the assessment under § 16 (1)."

4. Second decision: "Does implementing accessibility result in a 'fundamental alteration of the essential characteristics'?"

   • No: Leads to "No exemption. You must meet the requirements." (End, red).
   • Yes: Continue with step 5.

5. Action: "Document the assessment (§ 16 (2))."

6. Third 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 7.

7. Action: "Immediately inform the market surveillance authority (§ 16 (3))."

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

The Assessment (The "Essential Characteristic")

Unlike Section 17, there is no Annex 4 with financial criteria here. The assessment is conceptual and therefore perhaps even more difficult. You must argue what the "essential characteristics" of your product or service are.

Ask yourself: What is the core of my product? Is it the purely mechanical functionality? Is it the purely visual nature of an artwork? Is it a historical replica?

If the accessibility requirements (e.g., adding electronics, displays, or voice output) would destroy this core identity and create a fundamentally different product, Section 16 could apply.

danger

In the context of digital products and services, the hurdle is extremely high. Almost all accessibility requirements (e.g., subtitles, keyboard operability, color adjustments) do not fundamentally change the "essential characteristic." Therefore, be very cautious and consult a specialized lawyer if in doubt. Prefer Section 17 if costs are the problem. You can find the guide to Section 17 here.

The Documentation (Your Shield)

If your assessment concludes that a fundamental alteration exists, you must document this assessment (according to Section 16 (2) EAA [1]).

• What? The entire assessment, your argumentation regarding the essential characteristics, and why the requirements would fundamentally alter them.
• How long? You must keep this documentation for five years (counted from the last provision of the product or the last rendering of the service).
• For whom? Upon request, you must submit this documentation to the market monitoring body (according to Section 16 (2) EAA [1]).

tip

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 keep the 5-year documentation. However, you must provide the facts of your assessment to the authority upon request (according to Section 16 (4) EAA [1]).

For micro-enterprises providing services, Section 16 is usually not relevant, as they are completely exempted from the accessibility obligations anyway according to Section 3 (1) sentence 1 EAA [1].

The Notification (Being Proactive)

Having the documentation in a drawer is not enough. If you invoke Section 16, you must inform the competent market monitoring body without delay (according to Section 16 (3) EAA [1]).

In Germany, starting September 29, 2025, this is the Joint market monitoring body of the Federal States for the accessibility of products and services [2]:

• Address: MLBF, c/o Ministerium für Arbeit, Soziales, Gesundheit und Gleichstellung Sachsen-Anhalt, Postfach 39 11 55, 39135 Magdeburg
• Phone: +49 391 567 69700
• Email: MLBF(at)ms.sachsen-​anhalt.de

tip

Here too: Micro-enterprises are exempt from this reporting obligation (according to Section 16 (4) EAA [1]).

An Example: The "Classic-Watch Manufacturer GmbH"

Imagine the "Classic-Watch Manufacturer GmbH." It is an SME and manufactures high-quality, purely mechanical wristwatches. It also sells these through its own website.

• Problem: Accessibility requirements could require that the time is also output non-visually (e.g., vibration, voice output).
• Assessment (Step 1):
  1. The GmbH argues that the "essential characteristic" of its products is the purely mechanical, analog, and traditional watchmaking art.
  2. Adding electronics, batteries, vibration motors, or speakers would "fundamentally alter" this essential characteristic. The product would no longer be a "mechanical analog watch" but a "hybrid smartwatch."
• Result: The GmbH decides that a fundamental alteration exists for the product itself.
• Action (Steps 2 & 3):
  1. It documents this argumentation in detail (according to Section 16 (2) EAA [1]).
  2. It informs the competent market monitoring body about invoking Section 16 for the watches (according to Section 16 (3) EAA [1]).
  3. Crucially important: The GmbH's website (e-commerce service, Section 1 (3) No. 5 EAA [1]) must still be fully accessible! The exception "to the extent" only applies to the product.

Here is a visualization of the example:

Flowchart: Example Classic-Watch Manufacturer GmbH

Open textual description for "Flowchart: Example Classic-Watch Manufacturer GmbH"

This flowchart shows the decision-making process of Classic-Watch Manufacturer GmbH regarding the assessment of a fundamental alteration under § 16 EAA for its purely mechanical analog watches.

1. The process begins at "Start: Classic-Watch Manufacturer GmbH", which offers the "Product: Purely mechanical analog watch" (B).

2. The company evaluates the "Requirement e.g.: Digital display / voice output" (C).

3. The first decision is: "Does this change the 'essential characteristic'?" (D)

   • No: The path leads to "No exemption for the online shop. Implementation required." (J, red).
   • Yes: The path continues to "Assessment: Product changes from 'analog/mechanical' to 'digital/hybrid'" (E).

4. Result: "Fundamental alteration identified" (F, green).

5. Action 1: "Document (§ 16 (2))" (G).

6. Action 2: "Notify authority (§ 16 (3))" (H).

7. End: The status is "Compliant (with exemption for the product)" (I, green).

Risks of Misuse: What Happens if it Goes Wrong?

Invoking Section 16 "just because" a change is "somehow complex" is extremely risky.

The market monitoring bodies (regulated in Sections 20 ff. and 28 ff. EAA [1]) will monitor compliance with the law. If you invoke Section 16, they will review your assessment (according to Section 21 (3) EAA for products and Section 28 (3) EAA for services [1]).

If they determine that your invocation of the exception is not justified (e.g., because adding subtitles to a video changes the "essential characteristic" in your opinion, which it definitely does not), 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 defects (according to Section 22 (2) and Section 29 (1) EAA [1]).
2. Measures up to Prohibition: If you fail to comply with the request, the authority can restrict, prohibit, or even order a recall of your service or product (according to Section 22 (4) and Section 29 (3) EAA [1]).
3. Fine: Anyone who places a non-compliant product on the market or provides a non-compliant service acts improperly (according to Section 37 (1) No. 1 and 8 EAA [1]). This can be punished with a fine of up to 100,000 euros (according to Section 37 (2) EAA [1]).

Conclusion

The exception of "fundamental alteration" under Section 16 EAA is even vaguer and more conceptual than the "disproportionate burden" under Section 17. It is not about costs, but about the true identity of your offering.

Always remember:

1. Focus on "Essential Characteristics": It is about the core identity, not effort or aesthetics. The hurdle for this is very high.
2. "To the Extent": The exception almost never applies to your entire offering (see the watch example: the watch may be exempt, but the website is not).
3. Documentation is everything: Without a clear, traceable assessment that you keep for 5 years, you risk severe penalties during an audit.
4. Be proactive: If you are not a micro-enterprise, notification to the market monitoring body is mandatory.

Use this exception only if you are absolutely certain that your product would be fundamentally different afterward. If in doubt, it is not a fundamental alteration.

Frequently Asked Questions (FAQ)

Do I have to redo the assessment every few years?

No, the EAA does not mandate an automatic repetition of the assessment for Section 16 (unlike for services under Section 17 (3) [1]). However, it is highly advisable to renew the assessment if your product or the technological possibilities change significantly.

What about micro-enterprises?

Just to clarify again:

1. Services: Micro-enterprises are completely exempted from the accessibility obligations according to Section 3 (1) sentence 1 EAA [1]. Section 16 is not relevant to them.
2. Products: Micro-enterprises must meet the requirements but can also invoke Section 16. They have simplified obligations: no 5-year documentation requirement (but facts upon request) and no proactive reporting requirement to the authority (according to Section 16 (4) EAA [1]).

Does the exception apply to my entire product?

This is very unlikely. The law says "to the extent" (according to Section 16 (1) EAA [1]). This means you must implement every aspect of your product or service that does not lead to a fundamental alteration.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. The application of Section 16 EAA is a complex decision based on individual circumstances. 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 ⤴