Notified Body Competence Challenges and Dispute Resolution

Legal Framework

Two articles of the AI Act govern challenges to notified body competence and associated dispute resolution. Article 37 establishes the Commission's authority to investigate and, where necessary, override Member State inaction. Article 44 governs the certificates issued by notified bodies and mandates appeal procedures.

Article 37(1) vests the Commission with broad investigative powers triggered by competence concerns:

"The Commission shall, where necessary, investigate all cases where there are reasons to doubt the competence of a notified body or the continued fulfilment by a notified body of the requirements laid down in Article 31 and of its applicable responsibilities."
— AI Act Art. 37

Where the Commission ascertains non-compliance, the escalation mechanism follows a two-tier structure. The Commission first informs the notifying Member State:

"it shall inform the notifying Member State accordingly and request it to take the necessary corrective measures, including the suspension or withdrawal of the notification if necessary"
— AI Act Art. 37

If the Member State fails to act, the Commission may adopt an implementing act to suspend, restrict, or withdraw the designation under the examination procedure of Article 98(2).

At the certificate level, Article 44 requires that:

"An appeal procedure against decisions of the notified bodies, including on conformity certificates issued, shall be available."
— AI Act Art. 44

Article 44(3) also imposes proportionality constraints: notified bodies must account for proportionality when suspending or withdrawing certificates and must afford providers a deadline for corrective action before escalating.

Key Developments

The AI Act's notified body competence framework is too recent for dedicated case law. However, the procedural principles that will govern certificate appeals and competence disputes draw on established EU law traditions. The Amsterdam District Court's treatment of finality in appeal proceedings illustrates the standard of exhaustion of ordinary remedies that will likely apply to notified body certificate decisions:

"Judgment No 3.Bf.133/2023/16 of the Regional Court of Szeged constitutes a final decision against which no further ordinary appeal can be lodged and which accordingly makes a final decision on the merits of the case."
— Rechtbank Amsterdam, 20-01-2026

This principle means that certificate decisions by notified bodies, once appealed through all available ordinary procedures, become final and binding—subject only to the Commission's separate competence oversight under Article 37.

Status of the Debate

This topic is actively contested but not yet litigated under the AI Act. The doctrinal boundaries are unsettled: Article 37's threshold for triggering a Commission investigation is undefined and will require judicial clarification. The dual-layer enforcement structure—Member State corrective measures first, Commission override second—creates structural tensions, particularly where Member States resist Commission findings. No court split exists yet because the provisions are untested. What would resolve the open questions: a Commission implementing act under Article 37(4) challenged before the General Court, or a provider's appeal against a certificate suspension under Article 44(3) that defines the scope of proportionality review.

Practical Guidance

• Maintain ongoing competence documentation: Notified bodies must continuously satisfy the Article 31 requirements, as the Commission can investigate at any time. The notifying authority is obligated to provide all relevant information on request under Article 37(2).

• Implement appeal procedures before issuing certificates: Article 44(3) mandates that appeal procedures against notified body decisions, including on conformity certificates, must be available. These must be operational from day one of notification.

• Apply proportionality in enforcement actions: Before suspending or withdrawing a certificate, a notified body must set an appropriate deadline for the provider's corrective action. Suspension or withdrawal is a last resort, not a first response.

• Monitor the dual escalation pathway: Both the Member State and Commission can act. Where a Member State fails to take corrective measures after a Commission finding, the Commission may override through an implementing act. Providers should track both channels.

• Ensure confidentiality of investigations: Under Article 37(3), all sensitive information obtained during Commission investigations must be treated confidentially in accordance with Article 78 of the AI Act.