Article 44 of Machinery Regulation 2023/1230: the Union safeguard procedure

Article 44 of Regulation (EU) 2023/1230 sets out what happens when a Member State or the European Commission raises objections to a national restrictive measure adopted under the Article 43 procedure: the Commission must consult the Member States and the economic operator concerned, evaluate the measure, and adopt a decision by means of an implementing act. If the measure is found to be justified, all Member States must restrict or withdraw the product; if it is not, the Member State that adopted it must withdraw it immediately.

When is the Article 44 procedure triggered?

Article 44 only comes into play when the preceding Article 43 procedure — the national evaluation of a restrictive measure concerning machinery that presents a risk — fails to reach consensus: a Member State other than the one that adopted the measure, or the European Commission itself, raises objections about its justification. At that point the matter stops being bilateral between the manufacturer and a national authority and becomes a disagreement between Member States requiring arbitration at Union level.

This escalation matters to any manufacturer or importer operating across several EU markets: a restrictive measure adopted in one country can trigger a chain reaction if another Member State considers the restriction disproportionate, insufficiently reasoned, or technically incorrect. In that scenario, uncertainty for the economic operator can persist until the Commission reaches a decision.

What role does the Commission play during the consultation?

The Commission does not merely arbitrate in the abstract: Article 44 requires it to actively consult the Member States involved and the economic operator concerned before reaching a decision. This consultation allows it to gather the technical and legal arguments of both sides — the Member State that adopted the measure and the one objecting to it, as well as the manufacturer or importer whose machinery is at the centre of the dispute — so that the final decision rests on all the information available, not just the initial Article 43 evaluation.

This step gives the economic operator a genuine voice in the procedure, rather than the role of a mere bystander. Having robust, traceable technical documentation — risk assessment, declaration of conformity, technical file — is decisive in influencing the outcome of this phase.

How does the Commission decide whether the measure is justified?

Following the consultation, the Commission evaluates the restrictive national measure and adopts a decision by means of an implementing act. This legal instrument — the implementing act — carries decisive weight: it is not a mere recommendation but a binding resolution that settles the disagreement between the Member States involved and sets the Union's official position on that specific machine.

The decision can go only one of two ways: the measure is either justified or not justified. There is no "partial justification" middle ground in the text of the article; the Commission must rule in binary terms on the national measure that gave rise to the objection.

What happens depending on the outcome of the decision?

If the Commission concludes that the measure is justified, all Member States — not only the one that originally adopted it — must take the necessary restrictive measures in respect of the product concerned, and must also inform the Commission of the actions taken. This means a machine deemed non-compliant in one Member State can effectively be excluded from the entire single market.

If, on the other hand, the Commission determines that the measure is not justified, the Member State that adopted it must withdraw it. The practical effect is immediate: the machine regains free movement in that market without the rest of the Union needing to intervene.

→ If your machine has been the subject of a restrictive measure in a Member State and you're worried the safeguard procedure could spread across the whole EU, try IgeraIndustria free for 14 days and find in seconds which article of the Machinery Regulation backs your technical documentation.

Case study: a Catalan SME facing an objection between Member States

Maquinària Industrial Berguedà SL, a manufacturer of hydraulic shears based in Berga, saw the market surveillance authority of one Member State restrict the marketing of one of its models, citing a risk in the emergency stop system under the Article 43 procedure. However, another Member State where the company also sold the same machine — with more than 40 units already installed — raised objections with the Commission, arguing that the first country's technical evaluation had not taken into account the updated 2025 version of the technical file.

Faced with this disagreement, the Commission opened the Article 44 procedure: it consulted both Member States and requested Maquinària Industrial Berguedà SL's complete technical documentation, including the revised risk assessment. After two months of analysis, the Commission adopted an implementing act concluding that the original restrictive measure was not justified, since the emergency stop system met the essential requirements of Annex I once the 2025 update was taken into account. The Member State that had imposed the restriction had to withdraw it, and the company resumed unrestricted marketing of the 40 affected units and of pending orders worth 310,000 euros.

What is the difference between the Article 43 procedure and the Article 44 procedure?

Article 43 governs the initial evaluation of a restrictive measure at national level. Article 44 is triggered only when that evaluation prompts objections from another Member State or from the Commission, elevating the matter to a Union-wide safeguard procedure resolved by means of an implementing act.

Who can raise objections to the national measure?

Under Article 44, objections can come from a Member State other than the one that adopted the measure, or directly from the European Commission, which may intervene on its own initiative if it considers this necessary.

Does the economic operator take part in the procedure?

Yes. The text of Article 44 expressly requires the Commission to consult the economic operator concerned, together with the Member States, before adopting its decision by means of an implementing act.

What legal form does the Commission's decision take?

The decision is adopted by means of an implementing act, a binding instrument that determines definitively whether the restrictive national measure is justified or not.

What obligation arises if the measure is declared justified?

All Member States must take the necessary restrictive measures in respect of the product concerned, and must also inform the Commission of the actions taken, thereby extending the effect of the measure across the whole Union.

What happens if the Commission considers the measure not justified?

The Member State that adopted the restrictive measure must withdraw it, and the product regains free movement in that market without requiring further intervention from the rest of the Member States.

Can a manufacturer avoid reaching the Article 44 procedure?

Maintaining a complete, traceable, up-to-date technical file — with risk assessment and declaration of conformity consistent with Annex I — reduces the risk that a restrictive national measure will trigger objections between Member States and escalate to this Union safeguard procedure.