Disproportionate burden has a paper trail

German politics argues about accessibility as a cost. EU law already has a cost argument built in, with criteria, a five-year renewal and a copy for the authority. What "too expensive" has to look like under the EAA.

Daniel Kosbab4 min read

On 25 March 2026, in the Bundestag's question time, Friedrich Merz explained why the government had dropped mandatory building changes from its reform of the disability equality law, the BGG: "Wir haben uns entschlossen, das nicht zu tun, weil wir im Augenblick auch darauf achten müssen, dass Unternehmen in Deutschland mit solchen Kosten nicht überfrachtet werden." That is from the plenary record, and it set off a debate about whether accessibility is a right or a cost.

Two small things about the sentence. It says "im Augenblick," at the moment, so it is a cost argument with a time stamp. And it is about the BGG and buildings. The BFSG, the law that carries the European Accessibility Act, doesn't appear anywhere in that day's record. I searched.

Two laws, two ways to say "too expensive"

The BGG draft, Drucksache 21/5140, makes refusing a reasonable accommodation a form of discrimination, unless it would be a "unverhältnismäßige und unbillige Belastung." Then it decides that question in advance for every private business: "für Unternehmer im Sinne des Absatzes 2 gelten alle baulichen Veränderungen sowie Änderungen an Gütern und Dienstleistungen als unverhältnismäßige und unbillige Belastung." Every change counts as disproportionate, by definition. The same draft notes: "Dokumentations- oder Berichtspflichten entstehen nicht." And it estimates the annual compliance cost for the entire economy at about 1.35 million euros.

The BFSG uses almost the same words, "unverhältnismäßige Belastung," and they work the other way round. There, the burden is not declared. It is assessed, by the company, for each type of service, against written criteria, and the result is kept.

What the assessment has to contain

Article 14 of the EAA and § 17 BFSG set out the procedure:

  1. The company assesses whether meeting the requirements would be a disproportionate burden, using the criteria in Annex VI of the directive, Anlage 4 in the German law.
  2. It documents the assessment and keeps it for five years.
  3. It renews it whenever the service changes, when the authority asks, and in any case at least every five years.
  4. It informs the market surveillance authority when it relies on the exception. Microenterprises are exempt from this step.
  5. If it received outside money for accessibility, public or private, it can't rely on the exception at all.

The authority checks "die Beurteilung einschließlich der ordnungsgemäßen Anwendung der in Anlage 4 genannten Kriterien," and on request it passes the assessment on to consumers, under § 28 BFSG. A burden claim under the BFSG is a document that other people may read.

The criteria are three ratios: the net cost of compliance against the overall cost of providing the service, the cost and benefit for the company against the benefit for disabled people, "taking into account the amount and frequency of use," and the net cost of compliance against net turnover. Among the one-off costs the directive lists "one-off costs of understanding the legislation on accessibility." Reading the law counts as a cost. Recital 66 adds what doesn't: "Lack of priority, time or knowledge should not be considered to be legitimate reasons."

Imagine two shops

Imagine two shops that both find an accessible checkout too expensive. The first says so in an interview. The second writes it down the way Annex VI asks: the net cost of the fix, its share of turnover, how many customers use the checkout and how often, signed and dated, with a reminder in the calendar five years out.

Only the second one has used the exception. The first one has an opinion, and under the BFSG an opinion doesn't change what the checkout has to do.

What the authority does with it

At the start of June the German authority, the MLBF, was working through nearly 700 reports, according to Saxony-Anhalt's ministry, and they include "geltend gemachter unverhältnismäßiger Belastungen durch Wirtschaftsakteure." There is no breakdown, so I don't know how many. In its own surveillance strategy, a company's notice that it relies on the exception is filed under "Auf Nichtkonformität hindeutende Informationen," information that points to non-conformity. For the authority, a burden claim is where checking starts.

Where the cost argument lives

The BGG debate is about whether a cost argument should exist for buildings and everyday services. Its draft settles it with a sentence. For digital services under the EAA, the cost argument already exists. It has three ratios, a renewal date and a copy for the authority.

"Too expensive" is allowed in EU accessibility law. It has to be calculated, written down and checked again every five years. The BGG draft skips all three.