The Accessibility Improvement Act (Barrierefreiheitsstärkungsgesetz, BFSG) Part 2: The first BFSG warnings in e-commerce

Just one and a half months after the Accessibility Improvement Act (Barrierefreiheitsstärkungsgesetz, BFSG) came into force, we recently received the first warning letter for an alleged violation of the provisions of the BFSG. In this part of our BFSG IP update series, we take a closer look at the subject matter of the recent  warning letters, how those affected should respond to a warning letter due to an (alleged) violation of the BFSG, and what measures businesses should implement as soon as possible to avoid warning letters.

I. The BFSG and the applicable requirements for e-commerce

Since the middle of the year at the latest, the BFSG has become increasingly well known, because since June 28, 2025, the BFSG requires various economic operators to make certain goods accessible and to provide certain services in an accessible manner. In the first part of our IP update series on the BFSG, we already explained who is covered by the scope of the BFSG, what content of a website must be made accessible, and what specific accessibility requirements the BFSG and the Ordinance to the Accessibility Reinforcement Act (BFSGV) impose on website operators and app providers.

Even after the law comes into force, e-commerce affected by the BFSG will face numerous practical and legal challenges, particularly with regard to the technical implementation of accessibility requirements on websites. At present, there seems to be a consensus among e-commerce service providers that the WCAG 2.1 (Level AA) criteria set the standard for website accessibility and that compliance with these criteria triggers a legal presumption of compliance with the accessibility requirements. However, the specific implementation in individual cases and the legal consequences of non-compliance remain open. Questions of interpretation of the BFSG are likely to occupy the courts in the future.

II. Subject matter of the BFSG warnings currently in circulation

After the BFSG came into force on June 28, 2025, the first warning letters were not long in coming. Given the large number of economic operators and online shops affected and the relatively simple nature of BFSG compliance checks in e-commerce, it is hardly surprising that these letters focus particularly on the area of e-commerce.

The first BFSG warnings have now been sent out on behalf of the website operator die-website-experte.de, which is represented by CLAIM Rechtsanwalts GmbH. Internet research shows that a large number of similar warnings for alleged BFSG violations are currently in circulation by the parties mentioned above.

The warning letter contains a blanket statement alleging a violation of the BFSG without providing any further explanation, claiming that the website is not accessible. The alleged violation of the BFSG is substantiated by a screenshot of the website of the party receiving the warning letter. It merely refers to the fact that an obligation to ensure accessibility arises specifically from Section 14 (1) No. 1 and 2 in conjunction with Section 3 (1) and (2) BFSG, the violation of which constitutes an unfair competitive practice pursuant to Sections 3, 3a, 7 (9) UWG, which justifies the asserted claim for injunctive relief. The party issuing the warning letter does not specify what exactly is being objected to or what is alleged to be in conflict with the provisions of the BFSG.

What is also unusual is that the party issuing the warning letter – taking advantage of the fact that this is a new legal provision – is offering the party receiving the warning letter a settlement proposal: The submission of a cease-and-desist declaration with a penalty clause, which is generally necessary to eliminate the risk of repetition, shall be waived for the time being, provided that a certain amount is paid. The calculation of the amount to be paid is not comprehensible. If the settlement amount is paid, the party issuing the warning would grant the party receiving the warning a further three months to redesign the website in question to comply with the BFSG. It gets even more bizarre when the warning party offers its services as an "expert in this field" and offers its support to install the necessary accessibility tools.

The is followed with the indication that the violation of the BFSG is not only subject to civil law consequences but is also relevant under administrative law or could be subject to heavy fines, and with the indication that the estimated value in dispute of EUR 10,000.00 is rather at the lower end of the range used by courts or colleagues. This is presumably intended to make the settlement offer appear particularly accommodating.

III. How should I respond to a warning letter?

1. Do not ignore a warning letter

As a general rule, affected economic operators should take warnings based on alleged violations of the BFSG seriously and seek professional legal advice promptly. Short deadlines are often set, and if the warning is justified, a preliminary injunction may be imposed.

2. Stay calm and do not make any premature payments in response to a warning letter

We advise against hastily and uncritically accepting supposedly accommodating "settlement offers." Although a "settlement offer" may be tempting, it should still be reviewed by a lawyer.

3. Have the warning letter reviewed by a lawyer as soon as possible

Warnings can often be challenged on the basis of formal errors or missing legal arguments. Doubts about the legitimacy of a warning under competition law may arise not only from the finding of an actual violation of the BFSG, but also from general competition law provisions. The question of an active legal standing, i. e., the question of the right to assert a claim under unfair competition law, may already be decisive. If a warning letter has been issued by an alleged competitor of the party receiving the warning, it must always be examined whether there is actually a concrete competitive relationship between the parties within the meaning of the UWG. In addition, the specific alleged violation of the BFSG must of course also be examined, whereby the provisions of the BFSGV and the WCAG 2.1 criteria applicable to e-commerce must be taken into account in this context.

4. Do not rush into issuing a cease-and-desist declaration

A cease-and-desist declaration, possibly with an agreed contractual penalty, can be costly if a legal violation continues. It is also very difficult to withdraw from such a declaration retrospectively.

IV. Possibility of a counter-warning in the event of an unjustified warning

If, after the above examination, it turns out that a warning letter is unjustified, those affected by the unlawful warning letter are not left without protection, but have the option of issuing a counter-warning letter. In such cases, those who have been wrongfully warned have their own claims against the party issuing the warning.

In such constellations, there is the possibility of a so-called negative declaratory action against the party who wrongfully issued the warning, which is aimed at a court ruling that the party issuing the warning has no claims against the party receiving the warning and that the warning was issued wrongfully.

In addition, the wrongfully warned party is also entitled to their own claims for damages against the party issuing the warning, which may arise, among other things, from the costs necessary for legal defense against the claims asserted.

The specific circumstances of each case must be taken into account, so the possibility of a counter-warning should always be checked by a lawyer.

V. Beware of further sanctions in the event of a justified warning letter

If a warning letter is justified, the recipient of the warning letter must not only expect civil law consequences, but also, under certain circumstances, regulatory consequences and/or administrative fines due to a violation of the BFSG. We have already explained the various possible sanctions in the event of a BFSG violation in the first part of our IP update series on the BFSG.

A justified warning should therefore always be taken as an opportunity to revise the website in question as quickly as possible in order to avoid further sanctions.

VI. Avoiding warnings

In order to minimize the risk of a warning letter due to an (alleged) BFSG violation, we strongly advise affected website operators to make their websites BFSG-compliant as soon as possible, if they have not already done so. As the provisions of the BFSG have been in force since June 28, 2025, economic operators have been obliged to offer or provide the goods and services concerned in an accessible manner since that date. The BFSG does not provide for a further implementation period for the goods and services affected, with a few exceptions, meaning that, in principle, websites must already be accessible today. As a result, website operators must already expect to receive warnings for BFSG violations.

If website operators have not yet addressed this issue, we recommend to  immediately check whether the website operated falls within the scope of the BFSG and, if so, consult with the website's technical manager as soon as possible to ensure compliance with the WCAG 2.1 criteria at least at Level AA.

In addition, affected websites must also provide an accessibility statement on the website in an accessible format that meets the requirements of Section 14 (1) No. 2 BFSG in conjunction with Annex 3 to the BFSG.

If you have received a warning letter for an (alleged) violation of the BFSG or if you need assistance with the accessible design of your website or the drafting of an accessibility statement, we will be happy to advise you on all questions relating to accessibility.