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38.—(1) If the Department considers that a decision of a safety authority on a request made to it by the Department under regulation 35 does not comply with the relevant criteria it must refer the matter to the Commission in pursuance of article 29(5) of the Directive.
(2) For the purposes of paragraph (1), the relevant criteria means any criteria set out in the Directive which are relevant to the decision.
(3) If the Department has referred a matter to the Commission under paragraph (1), any prohibition imposed by the Department under regulation 35 may be maintained in force until the matter is concluded.
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