Accessibility
The Directive (EU) 2016/2102 of the European Parliament and of the Council, dated October 26, 2016, on the accessibility of websites and mobile applications of public sector bodies aims to improve the functioning of the internal market by approximating the legal, regulatory, and administrative provisions of the Member States regarding accessibility requirements. Accessibility is understood as a set of principles and techniques that must be respected when designing, building, maintaining, and updating websites and mobile applications.
The Directive covers all websites and mobile applications of the public sector, from those of the state administration, regional and local administrations, courts, and constitutional bodies to those of services managed by them such as hospitals, schools, universities, public libraries, etc.
In this context, the Directive requires that websites and mobile applications of public sector bodies be based on common accessibility requirements established at the European level, putting an end to market fragmentation and the existing technical differentiation, preventing countries from applying different versions, levels of compliance, or having technical differences at the national level, reducing uncertainty for developers, and promoting interoperability. All these aspects should result in an increased potential internal market for products and services related to the accessibility of websites and mobile applications, thereby contributing to economic growth and job creation in the European Union.
To achieve this objective and ensure that citizens benefit from broader access to public sector services through increasingly accessible websites and mobile applications, the Directive establishes mandatory minimum accessibility requirements and adopts standards applicable to the design, construction, maintenance, and updating of such websites and mobile applications. It also imposes the preparation, periodic updating, and publication of an accessibility statement on the conformity of their websites and mobile applications with the established minimum accessibility requirements, facilitating adaptation to the state of the art at any given time. However, the Directive contemplates exceptions to compliance with these requirements when they impose a disproportionate burden on the body, without the lack of priority, time, or knowledge being considered legitimate reasons for the exception.
Furthermore, to ensure compliance with the provisions established in this directive, each Member State is required to create a communication mechanism linked to an enforcement procedure that allows any user of a website or mobile application of a public sector body to report non-compliance with accessibility requirements, file complaints, and make suggestions. Additionally, an authority responsible for the enforcement procedure must be established to ensure that communications and requests received are effectively addressed.
The Directive (EU) 2016/2102, dated October 26, 2016, also imposes on Member States the obligation to establish a system for monitoring and periodically reporting to the European Commission, adopting measures for promotion, training, and awareness-raising on accessibility for all involved and responsible parties, and finally, invites Member States to extend the scope of their regulations to other types of websites and mobile applications.
From a regulatory perspective, the need to regulate basic accessibility conditions for the use of services related to the information society is first recognized in our internal legal system in Law 51/2003, dated December 2, on equal opportunities, non-discrimination, and universal accessibility for people with disabilities, which set a two-year deadline for the government to establish them. The provisions of this law, currently repealed, are included in Royal Legislative Decree 1/2013, dated November 29, which approves the revised text of the General Law on the rights of persons with disabilities and their social inclusion.
Subsequently, on December 4, 2005, the Council of Ministers adopted the 2006-2010 Plan for the development of the information society and convergence with Europe and among autonomous communities and cities with a statute of autonomy (Plan Avanza), which included a mandate directed to the then Ministry of Labor and Social Affairs, the Ministry of Industry, Tourism and Trade, and the Ministry of Public Administrations to draft a royal decree regulating these basic conditions. As a result of this mandate, the Regulation on basic conditions for access by people with disabilities to technologies, products, and services related to the information society and social communication media was approved by Royal Decree 1494/2007, dated November 12, which includes specific measures on accessibility for public administration or publicly funded websites in its chapter III.
There are also other regulations that refer to the accessibility requirements of public administration websites for which this new royal decree will lay the foundations. Some of them are Law 34/2002, dated July 11, on information society services and electronic commerce, Law 40/2015, dated October 1, on the Legal Regime of the Public Sector, Law 19/2013, dated December 9, on transparency, access to public information, and good governance, Law 18/2011, dated July 5, regulating the use of information and communication technologies in the Administration of Justice, Law 27/2007, dated October 23, recognizing Spanish sign languages and regulating support means for oral communication for deaf, hearing-impaired, and deafblind people, and Law 9/2017, dated November 8, on Public Sector Contracts, which transposes Directives 2014/23/EU and 2014/24/EU of the European Parliament and of the Council, dated February 26, 2014, into Spanish law. This royal decree complements Royal Decree 1494/2007, dated November 12, and for this purpose, repeals the articles of the regulation that refer to the accessibility of internet pages, articles 5, 6, and 7, and develops them in greater detail. Therefore, this Regulation addresses the aspects related to the minimum accessibility requirements of public sector websites and mobile applications, adopting the necessary measures to comply with the provisions of Directive (EU) 2016/2102, dated October 26, 2016, and thus continue to ensure that accessibility and non-discrimination, in general, and especially for people with disabilities in their interactions with the public sector, are real and effective. To this end, in addition to establishing the minimum requirements that must be met and incorporating the other actions provided for in the Directive, this royal decree establishes the system through which users can communicate to the public sector body any possible non-compliance by its website or mobile application with the established accessibility requirements and also allows interested parties, upon reasonable and legitimate request, to request information on content that is excluded from the scope of this royal decree or exempt from compliance with accessibility requirements due to imposing a disproportionate burden.
The possibility of appealing to the Ombudsman, as proposed by the Directive in its article 9, is already included in the current Spanish regulation and is reflected in Organic Law 3/1981, dated April 6, on the Ombudsman, which provides for the possibility of filing complaints with the Ombudsman for the defense of the rights in Title I of the Spanish Constitution, and related to the functioning of the Administration, which includes the actions of the entire public sector in terms of accessibility with the level of obligations imposed by the current regulation.
There is also the Disability Care Office in accordance with the provisions of the revised text of the General Law on the rights of persons with disabilities and their social inclusion, approved by Royal Legislative Decree 1/2013, dated November 29. This Office is the permanent and specialized body of the National Disability Council, responsible for promoting equal opportunities, non-discrimination, and universal accessibility for people with disabilities and performs advisory, analysis, and study functions on complaints, reports, and consultations submitted by people with disabilities in the fields of telecommunications and the information society, among others.
On the other hand, this royal decree also incorporates, in an additional provision, the requirements imposed on the websites of entities, companies, and centers that provide public services through a public concession or some other contractual means with the Administration.
Additionally, in another additional provision, the accessibility criteria applicable to the websites and mobile applications of the State's constitutional bodies and the legislative and control bodies of the autonomous communities are established, by adapting their specific regulations to what is established in this royal decree, and always in accordance with what is established therein.
Regarding its entry into force, the Directive gives flexibility to Member States by requiring that all provisions be applied to new websites by September 23, 2019, and to all websites by September 23, 2020. Considering that Spain already has existing legislation that requires many of these requirements for websites, the entry into force of this royal decree has been designed to continue the provisions of Royal Decree 1494/2007, dated November 12. Thus, in the Spanish context, a phased introduction has been chosen in the same terms as the Directive only for aspects related to the management of complaints and claims and mobile applications. Also, in response to requests received from the disability sector, some of the deadlines provided in the Directive have been brought forward. In any case, the provisions of this royal decree have been temporally adapted to make it possible to respond in a timely and appropriate manner to the European Commission regarding monitoring and reporting. This royal decree has the character of basic legislation under the provisions of article 149.1.1.ª and 18.ª of the Spanish Constitution.
In the preparation of this royal decree, reports have been obtained from the Territorial Council of Social Services and the System for Autonomy and Care for Dependency, the State Council of Older Persons, the National Disability Council, in which representative organizations of people with disabilities are represented, the Consumers and Users Council, the State Council of Non-Governmental Social Action Organizations, the Sectoral Commission of Electronic Administration of the Sectoral Conference of Public Administration, the ICT Strategy Commission of the General State Administration, and the State Technical Committee of Electronic Judicial Administration.
This royal decree, which according to article 25 of Law 50/1997, dated November 27, on the Government, is included in the 2018 Annual Regulatory Plan, assumes the mandate to transpose Directive (EU) 2016/2012, dated October 26, 2016. The transposition has been based on the principles of good regulation provided for in article 129 of Law 39/2015, dated October 1, on the Common Administrative Procedure of Public Administrations. In particular, it adheres to the principle of necessity and effectiveness by fulfilling the obligation to incorporate into national law faithfully to the text of the directive; as well as the principles of proportionality, by containing the essential regulation for the intended purpose, transparency, as it reinforces the guarantees surrounding it and promotes compliance, and legal certainty, as it is carried out to maintain a stable, predictable, integrated, and clear regulatory framework.
Therefore, at the proposal of the Minister of Territorial Policy and Public Function, the Minister of Economy and Business, and the Minister of Health, Consumer Affairs, and Social Welfare, in agreement with the Council of State and after deliberation by the Council of Ministers at its meeting on September 7, 2018,
The Directive covers all websites and mobile applications of the public sector, from those of the state administration, regional and local administrations, courts, and constitutional bodies to those of services managed by them such as hospitals, schools, universities, public libraries, etc.
In this context, the Directive requires that websites and mobile applications of public sector bodies be based on common accessibility requirements established at the European level, putting an end to market fragmentation and the existing technical differentiation, preventing countries from applying different versions, levels of compliance, or having technical differences at the national level, reducing uncertainty for developers, and promoting interoperability. All these aspects should result in an increased potential internal market for products and services related to the accessibility of websites and mobile applications, thereby contributing to economic growth and job creation in the European Union.
To achieve this objective and ensure that citizens benefit from broader access to public sector services through increasingly accessible websites and mobile applications, the Directive establishes mandatory minimum accessibility requirements and adopts standards applicable to the design, construction, maintenance, and updating of such websites and mobile applications. It also imposes the preparation, periodic updating, and publication of an accessibility statement on the conformity of their websites and mobile applications with the established minimum accessibility requirements, facilitating adaptation to the state of the art at any given time. However, the Directive contemplates exceptions to compliance with these requirements when they impose a disproportionate burden on the body, without the lack of priority, time, or knowledge being considered legitimate reasons for the exception.
Furthermore, to ensure compliance with the provisions established in this directive, each Member State is required to create a communication mechanism linked to an enforcement procedure that allows any user of a website or mobile application of a public sector body to report non-compliance with accessibility requirements, file complaints, and make suggestions. Additionally, an authority responsible for the enforcement procedure must be established to ensure that communications and requests received are effectively addressed.
The Directive (EU) 2016/2102, dated October 26, 2016, also imposes on Member States the obligation to establish a system for monitoring and periodically reporting to the European Commission, adopting measures for promotion, training, and awareness-raising on accessibility for all involved and responsible parties, and finally, invites Member States to extend the scope of their regulations to other types of websites and mobile applications.
From a regulatory perspective, the need to regulate basic accessibility conditions for the use of services related to the information society is first recognized in our internal legal system in Law 51/2003, dated December 2, on equal opportunities, non-discrimination, and universal accessibility for people with disabilities, which set a two-year deadline for the government to establish them. The provisions of this law, currently repealed, are included in Royal Legislative Decree 1/2013, dated November 29, which approves the revised text of the General Law on the rights of persons with disabilities and their social inclusion.
Subsequently, on December 4, 2005, the Council of Ministers adopted the 2006-2010 Plan for the development of the information society and convergence with Europe and among autonomous communities and cities with a statute of autonomy (Plan Avanza), which included a mandate directed to the then Ministry of Labor and Social Affairs, the Ministry of Industry, Tourism and Trade, and the Ministry of Public Administrations to draft a royal decree regulating these basic conditions. As a result of this mandate, the Regulation on basic conditions for access by people with disabilities to technologies, products, and services related to the information society and social communication media was approved by Royal Decree 1494/2007, dated November 12, which includes specific measures on accessibility for public administration or publicly funded websites in its chapter III.
There are also other regulations that refer to the accessibility requirements of public administration websites for which this new royal decree will lay the foundations. Some of them are Law 34/2002, dated July 11, on information society services and electronic commerce, Law 40/2015, dated October 1, on the Legal Regime of the Public Sector, Law 19/2013, dated December 9, on transparency, access to public information, and good governance, Law 18/2011, dated July 5, regulating the use of information and communication technologies in the Administration of Justice, Law 27/2007, dated October 23, recognizing Spanish sign languages and regulating support means for oral communication for deaf, hearing-impaired, and deafblind people, and Law 9/2017, dated November 8, on Public Sector Contracts, which transposes Directives 2014/23/EU and 2014/24/EU of the European Parliament and of the Council, dated February 26, 2014, into Spanish law. This royal decree complements Royal Decree 1494/2007, dated November 12, and for this purpose, repeals the articles of the regulation that refer to the accessibility of internet pages, articles 5, 6, and 7, and develops them in greater detail. Therefore, this Regulation addresses the aspects related to the minimum accessibility requirements of public sector websites and mobile applications, adopting the necessary measures to comply with the provisions of Directive (EU) 2016/2102, dated October 26, 2016, and thus continue to ensure that accessibility and non-discrimination, in general, and especially for people with disabilities in their interactions with the public sector, are real and effective. To this end, in addition to establishing the minimum requirements that must be met and incorporating the other actions provided for in the Directive, this royal decree establishes the system through which users can communicate to the public sector body any possible non-compliance by its website or mobile application with the established accessibility requirements and also allows interested parties, upon reasonable and legitimate request, to request information on content that is excluded from the scope of this royal decree or exempt from compliance with accessibility requirements due to imposing a disproportionate burden.
The possibility of appealing to the Ombudsman, as proposed by the Directive in its article 9, is already included in the current Spanish regulation and is reflected in Organic Law 3/1981, dated April 6, on the Ombudsman, which provides for the possibility of filing complaints with the Ombudsman for the defense of the rights in Title I of the Spanish Constitution, and related to the functioning of the Administration, which includes the actions of the entire public sector in terms of accessibility with the level of obligations imposed by the current regulation.
There is also the Disability Care Office in accordance with the provisions of the revised text of the General Law on the rights of persons with disabilities and their social inclusion, approved by Royal Legislative Decree 1/2013, dated November 29. This Office is the permanent and specialized body of the National Disability Council, responsible for promoting equal opportunities, non-discrimination, and universal accessibility for people with disabilities and performs advisory, analysis, and study functions on complaints, reports, and consultations submitted by people with disabilities in the fields of telecommunications and the information society, among others.
On the other hand, this royal decree also incorporates, in an additional provision, the requirements imposed on the websites of entities, companies, and centers that provide public services through a public concession or some other contractual means with the Administration.
Additionally, in another additional provision, the accessibility criteria applicable to the websites and mobile applications of the State's constitutional bodies and the legislative and control bodies of the autonomous communities are established, by adapting their specific regulations to what is established in this royal decree, and always in accordance with what is established therein.
Regarding its entry into force, the Directive gives flexibility to Member States by requiring that all provisions be applied to new websites by September 23, 2019, and to all websites by September 23, 2020. Considering that Spain already has existing legislation that requires many of these requirements for websites, the entry into force of this royal decree has been designed to continue the provisions of Royal Decree 1494/2007, dated November 12. Thus, in the Spanish context, a phased introduction has been chosen in the same terms as the Directive only for aspects related to the management of complaints and claims and mobile applications. Also, in response to requests received from the disability sector, some of the deadlines provided in the Directive have been brought forward. In any case, the provisions of this royal decree have been temporally adapted to make it possible to respond in a timely and appropriate manner to the European Commission regarding monitoring and reporting. This royal decree has the character of basic legislation under the provisions of article 149.1.1.ª and 18.ª of the Spanish Constitution.
In the preparation of this royal decree, reports have been obtained from the Territorial Council of Social Services and the System for Autonomy and Care for Dependency, the State Council of Older Persons, the National Disability Council, in which representative organizations of people with disabilities are represented, the Consumers and Users Council, the State Council of Non-Governmental Social Action Organizations, the Sectoral Commission of Electronic Administration of the Sectoral Conference of Public Administration, the ICT Strategy Commission of the General State Administration, and the State Technical Committee of Electronic Judicial Administration.
This royal decree, which according to article 25 of Law 50/1997, dated November 27, on the Government, is included in the 2018 Annual Regulatory Plan, assumes the mandate to transpose Directive (EU) 2016/2012, dated October 26, 2016. The transposition has been based on the principles of good regulation provided for in article 129 of Law 39/2015, dated October 1, on the Common Administrative Procedure of Public Administrations. In particular, it adheres to the principle of necessity and effectiveness by fulfilling the obligation to incorporate into national law faithfully to the text of the directive; as well as the principles of proportionality, by containing the essential regulation for the intended purpose, transparency, as it reinforces the guarantees surrounding it and promotes compliance, and legal certainty, as it is carried out to maintain a stable, predictable, integrated, and clear regulatory framework.
Therefore, at the proposal of the Minister of Territorial Policy and Public Function, the Minister of Economy and Business, and the Minister of Health, Consumer Affairs, and Social Welfare, in agreement with the Council of State and after deliberation by the Council of Ministers at its meeting on September 7, 2018,
