2.3.2.3 Procedural compatibility review (Notification Directive)

29. As indicated, in horizontal proceedings, national courts are prohibited to set aside a provision of national law as a result of a substantive compatibility review of that provision against a directive.1 Nevertheless, in CIA Security, Unilever Italia, and Sapod Audic the Court of Justice has held that in the context of horizontal proceedings, a national court should set aside provisions of national law that in defiance of a directive had not been notified to the European Commission by the Member State in question.2 As this compatibility review concerns the failure of a Member State to comply with procedures prescribed by Union law – e.g. the Notification Directive3 – this review is referred to as the procedural compatibility review.4 This type of review differs from the substantive compatibility review discussed above. First, the substance of the national legislation does not play a role at all. Second, the technique of a procedural compatibility review differs considerably from that of the substantive compatibility review, which consists of a proportionality test. As regards the procedural compatibility review, a national court has to assess whether a provision of national law falls within the scope of the procedural rule of Union law and subsequently whether the Member State has or has not complied with this procedural rule. When the national provision falls within the scope of the procedural rule of Union law and the Member State has not respected the procedural requirements as laid down by the directive in the adoption of the provision of national origin, the particular national provision has to be disapplied in the context of horizontal proceedings, irrespective of whether its substance could – potentially – be in conformity with Union law.