Article 39 of Machinery Regulation 2023/1230: appeals against decisions of notified bodies

Article 39 of Regulation (EU) 2023/1230 requires every notified body to have a transparent, accessible and comprehensible appeal procedure against its own decisions — refusal, restriction, suspension or withdrawal of an EU-type examination certificate or a quality assurance certificate. In practice, this means the manufacturer or its authorised representative is not left defenceless against an unfavourable ruling: they can first challenge it before an internal body of the notified body, before resorting to judicial proceedings or to the relevant notifying authority.

Which notified body decisions can be appealed?

Article 39 expressly covers four types of unfavourable decisions: refusal of an EU-type examination certificate or a quality assurance certificate, restriction of its scope, temporary suspension of the certificate, and its definitive withdrawal. These are the decisions with the greatest economic impact for a manufacturer, because any one of them blocks or conditions the CE marking of the machinery and, therefore, its placing on the European market. It does not, however, include purely administrative or scheduling matters that do not affect the substance of the conformity assessment.

What must the appeal procedure under Article 39 look like?

The legal text requires three specific qualities: transparency, accessibility and comprehensibility. Transparency means the manufacturer knows in advance the rules, deadlines and criteria that will apply to its appeal. Accessibility means the procedure must not impose disproportionate barriers — financial, temporal or formal — that discourage exercising this right. Comprehensibility requires that the information be provided in clear terms, without needing specialised legal advice to understand what steps to follow. These three requirements turn the internal appeal into a genuine procedural safeguard, not a mere formality on paper.

Who can file the appeal and to whom is it addressed first?

Article 39 entitles the manufacturer or its authorised representative to challenge the decision. The first level of appeal is always directed to a body within the notified body itself, distinct from the one that adopted the initial decision. Only if this internal appeal fails to resolve the dispute can the manufacturer, as appropriate, turn to judicial proceedings or to the notifying authority that supervises the body. This staged order aims to resolve most technical disagreements at the fastest and least costly stage, reserving judicial proceedings for cases that genuinely require them.

What happens if the notified body does not have this procedure?

The existence of an appeal procedure compliant with Article 39 is a structural condition for a body to retain its notification. Its absence or deficiency constitutes a verifiable non-compliance by the notifying authority, which can require its correction or, ultimately, question the body's own designation. For the manufacturer, this means they can directly invoke Article 39 if a notified body refuses to process their challenge or fails to inform them of the available channels for doing so.

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Case study: Maquinaria Industrial Rovira, S.L.

Maquinaria Industrial Rovira, S.L., a hydraulic press manufacturer in Sabadell, received notice in March 2027 of the suspension of its EU-type examination certificate for a line of 8 press models, following a surveillance audit by the notified body that detected a documentation discrepancy in the technical file. Rovira's quality department, with 3 technicians dedicated to the relationship with the notified body, filed an appeal within 15 days before the notified body's internal appeals instance, providing the corrected documentation and an additional 22-page technical report. The internal instance reviewed the case within 30 days and revoked the suspension, avoiding a production stoppage estimated at €180,000 in monthly turnover for that product line. Without the Article 39 appeal procedure, Rovira would have had to go directly to judicial proceedings, with timelines of months instead of weeks.

Does Article 39 apply to all notified bodies in the EU?

Yes, it is a uniform obligation for all notified bodies under Regulation (EU) 2023/1230, regardless of the Member State that designated them.

Can I skip the internal appeal and go straight to the courts?

Article 39 establishes the internal appeal as the preliminary channel before judicial proceedings or the notifying authority, so its purpose is precisely to offer a quick review before escalating the dispute.

What happens if the notified body does not respond to the appeal within a reasonable time?

A lack of response or unjustified delay defeats the transparency and accessibility requirements of Article 39 and can be brought to the attention of the notifying authority that supervises the body.

Can the authorised representative appeal instead of the manufacturer?

Yes, Article 39 expressly entitles both the manufacturer and its authorised representative to file the appeal.

Can a partial restriction of the certificate's scope be appealed?

Yes, Article 39 expressly includes restriction of the certificate's scope among the appealable decisions, not only full refusal or withdrawal.

Which instance within the notified body decides the appeal?

The Regulation requires it to be a body within the notified body itself, which in practice means an appeals body or committee separate from the assessor who made the original decision.