National Article 114(4) TFEU notification — Measures stricter than EU harmonisation
A mechanism under Art. 114(4) TFEU by which a Member State notifies the Commission of its intention to maintain national provisions stricter than EU harmonisation. The Commission decides within 6 months.
Context
Art. 114(4) of the Treaty on the Functioning of the European Union (TFEU) offers Member States a formal mechanism to maintain national provisions stricter than the harmonisation measures adopted by the Union. It is the counterweight to the full internal-market harmonisation of Art. 114(1) TFEU: where a Member State considers that its national provisions (already existing before the harmonisation) offer greater protection to health, the environment, consumers or workers than the EU norm, it may notify them and request to maintain them.
Mechanics of the notification
The Member State notifies the Commission of the stricter national provisions it intends to maintain, with the justification (protection of health, the environment, consumers or workers).
The Commission has 6 months to approve or reject the measure (Art. 114(6) TFEU, extendable by an additional 6 months where complexity justifies it).
The Commission verifies that the national measure does not constitute arbitrary discrimination, a disguised restriction on trade between Member States, or an obstacle to the functioning of the internal market.
If the Commission does not rule within the deadline, the national measure is deemed approved by institutional positive silence.
Recent textile case · France and the destruction of unsold goods
France notified under Art. 114(4) TFEU in 2026 (official publication 52026XC01806) its intention to maintain national provisions on the prohibition of destroying unsold textile garments that are stricter than those that Reg. (EU) 2024/1781 ESPR sets as EU harmonisation. France already had an anti-waste law (Loi anti-gaspillage AGEC 2020) prohibiting the destruction of unsold non-food products before the EU prohibition came into force. Notification 52026XC01806 allows France to preserve the stricter national aspect without conflicting with EU harmonisation.
Applied case
A European textile brand with a point of sale in France verifies the scope of the French notification 52026XC01806 before implementing its unsold-goods policy.
It consults the official OJEU publication 52026XC01806 with the list of French national provisions notified under Art. 114(4) TFEU in relation to the prohibition of destroying unsold goods.
It compares the notified French provisions (Loi anti-gaspillage AGEC 2020 with Décret 2021-1287 on the obligation to donate/recycle unsold goods) with the harmonised obligations of Reg. (EU) 2024/1781 ESPR (Art. 25 on disclosure + future prohibitions via delegated act).
It identifies that in France it must comply with the combination: EU ESPR + approved French national provisions, which may entail documentary or channelling obligations (donation, recycling) more demanding than the rest of the Member States where only the ESPR applies.
It differentiates this situation from the rest of the Union: in Member States where there is no approved 114(4) TFEU notification, only EU ESPR harmonisation applies.
When the Commission rules definitively on 52026XC01806 (positive silence within 6 months or an express decision), it updates its multi-country compliance matrix accordingly.
Common mistakes
Art. 114(4) TFEU does NOT allow a Member State to adopt subsequent stricter norms: only to MAINTAIN those that already existed.
Art. 114(4) TFEU allows maintaining national provisions pre-existing the EU harmonisation measure. To introduce new national provisions subsequent to the harmonisation, the route is Art. 114(5) TFEU, which has more demanding requirements (new scientific evidence + a problem specific to the Member State arising after the harmonisation). Confusing them radically changes the applicable procedure.
The 114(4) TFEU notification is NOT automatically binding: it requires express approval or positive silence from the Commission.
Until the Commission rules (within 6 months, extendable by 6 more) or the deadline lapses without a response, the notified national provisions are not formally consolidated. Approval may be express (Commission Decision in the OJEU L series) or by positive silence. If the Commission rejects, the State must align the provisions with EU harmonisation or challenge the decision before the CJEU.
A 114(4) TFEU notification does NOT create EU law: it creates a national exception to harmonisation.
Notified and approved national provisions remain national law with territorial effect limited to the notifying Member State. They do not become obligations for the other Member States. Multi-country brands must build asymmetric compliance matrices, not assume that the notified national provision extends to the rest of the Union.
The France case 52026XC01806 does NOT replace the EU ESPR prohibition: it complements it.
The future prohibition of destroying unsold goods under Reg. (EU) 2024/1781 ESPR (via a specific delegated act that sets it for textiles) will be mandatory in all 27 Member States. The French notification 52026XC01806 adds stricter provisions that apply only in France. A brand with a French presence complies with the combination; without a French presence it complies only with the EU harmonised minimum.
Frequently asked questions
What is an Art. 114(4) TFEU notification?
A formal mechanism of the Treaty on the Functioning of the European Union by which a Member State notifies the European Commission of its intention to maintain national provisions stricter than EU harmonisation in a given field. The Commission has 6 months (extendable by another 6) to approve or reject the national measure.
What distinguishes Art. 114(4) from Art. 114(5) TFEU?
Art. 114(4) TFEU allows maintaining national provisions pre-existing EU harmonisation. Art. 114(5) TFEU allows introducing new national provisions subsequent to the harmonisation, with more demanding requirements (new scientific evidence + a problem specific to the Member State arising after the harmonisation).
What happens if the Commission does not rule within the deadline?
Institutional positive silence. If the Commission does not resolve on the notification within the 6-month deadline (Art. 114(6) TFEU, extendable by 6 more months), the national provisions are deemed approved and consolidate their territorial effect limited to the notifying Member State.
What are the implications of the French notification 52026XC01806?
France notified national provisions stricter on the prohibition of destroying unsold textile garments, anchored in the Loi AGEC 2020 and Décret 2021-1287. A textile brand with a presence in France must comply with the combination EU ESPR + notified national provisions. In the rest of the Union only EU ESPR harmonisation applies.
Fuentes oficiales
- European Union · consolidated version OJEU C 202/20167 jun 2016Founding Treaty · consolidated text
- European Commission · OJEU C series · March 20262026Official notification Art. 114(4) TFEU
- European Parliament and Council · OJEU OJ L of 28.6.202413 jun 2024EU harmonised reference standard
