Compliance Independence

Legal Framework

Recital 59 of the Digital Services Act (DSA) establishes that out-of-court dispute settlement bodies must possess the requisite independence, means, and expertise to carry out their activities in a fair, swift, and cost-effective manner. Critically, this independence requirement extends beyond the institutional level to the natural persons charged with resolving disputes. Recital 59 expressly mandates that conflict-of-interest rules govern individual decision-makers to ensure impartiality throughout the dispute resolution process.

This structural independence requirement operates alongside broader EU law principles concerning conflicts of interest in quasi-regulatory and compliance functions. Under Dutch procurement law, Article 2.87(1)(e) of the Aanbestedingswet 2012 (Aw 2012), read together with Article 1.10b Aw, provides a directly analogous framework: a contracting authority must exclude a candidate where a conflict of interest exists that cannot be effectively remedied. The same logic—separating compliance and decision-making functions from operational or commercial pressures—animates the DSA's independence requirements for internal complaint-handling and dispute resolution mechanisms.

Key Developments

The Gerechtshof Den Haag's decision of 30 June 2026 (cases 200.361.266/01, 200.361.440/01, and 200.361.896/01) illustrates how courts assess conflict-of-interest allegations in practice. The court examined whether a share transaction between entities under common municipal ownership constituted prohibited state aid and, consequently, a conflict of interest under Article 2.87(1)(e) Aw 2012 that should have led to exclusion from a procurement procedure. The court held that the claimant had not sufficiently demonstrated that the transaction involved unlawful state aid affecting the procurement's pricing, and therefore no conflict of interest requiring exclusion was established.

The court's reasoning reinforces a demanding evidentiary threshold: a conflict of interest must be substantiated with concrete evidence demonstrating that the conflict actually influenced—or could reasonably have influenced—the decision-making process. Speculative or conclusory allegations of overlapping interests will not suffice. This aligns with the Xafax jurisprudence, which confines challenges to public contracts in appellate proceedings to cases of nullity under Article 3:40 BW on public policy grounds, narrowly circumscribing the circumstances in which conflicts of interest can invalidate contractual outcomes.

The Dutch case law on mediation duties further underscores that the obligation to disclose conflicts of interest arises as a statutory obligation the moment a intermediary has any direct or indirect stake in the transaction's completion, shifting the burden to the principal to assess whether the conflict compromises optimal representation.

Practical Guidance

• Structural separation: Establish compliance and dispute resolution functions with reporting lines that bypass commercial and operational management, ensuring that staffing, budget, and performance evaluations for compliance personnel are insulated from business-side influence, consistent with the independence mandate in DSA Recital 59.

• Individual conflict-of-interest protocols: Implement written conflict-of-interest declarations for every natural person involved in dispute resolution or compliance monitoring, requiring disclosure of any direct or indirect financial, familial, or professional interest in the outcome—mirroring the standard articulated in the mediation duty case law.

• Evidentiary documentation: Maintain contemporaneous records demonstrating that identified conflicts were assessed and either remedied through recusal or mitigated through procedural safeguards, meeting the evidentiary threshold the Gerechtshof Den Haag requires for conflict-of-interest claims.

• Escalation and exclusion triggers: Define clear criteria for when a conflict cannot be remedied and requires exclusion of the conflicted party or decision-maker, drawing on the Article 2.87(1)(e) Aw 2012 framework as an analog for when remediation is insufficient.

• Periodic independence audits: Conduct regular reviews of the compliance function's structural and operational independence, documenting that the function possesses adequate resources and expertise as Recital 59 requires, and that no informal reporting dependencies have emerged that could compromise impartiality.