Notified Body Independence

Legal Framework

Notified body independence is grounded in several overlapping EU and national provisions. DSA Recital 112 establishes that competent authorities designated under the regulation must act fully independently from both private and public bodies, without the obligation or possibility to seek or receive instructions — even from government. This independence is balanced against constitutional requirements and the obligation to cooperate with other competent authorities, Digital Services Coordinators, the Digital Services Board, and the Commission. DSA Recital 59 extends independence requirements to out-of-court dispute settlement bodies, requiring that independence be ensured not only at the institutional level but also at the level of the natural persons charged with resolving disputes, through explicit conflict-of-interest rules. At the national level, procurement law provisions such as Article 2.87(1)(e) in conjunction with Article 1.10b of the Dutch Public Procurement Act 2012 mandate exclusion of contractors where a conflict of interest compromises impartial performance. Article 3:40 of the Dutch Civil Code provides the broader nullity framework for acts conflicting with public policy, which encompasses violations of independence principles.

Key Developments

The Gerechtshof Den Haag ruling of 30 June 2026 (cases 200.361.266/01, 200.361.440/01, and 200.361.896/01) clarifies the threshold for establishing that a conflict of interest undermines procurement integrity. The court examined whether a share transaction between municipal entities and a private party constituted prohibited state aid that should have triggered exclusion under Article 2.87(1)(e) jo. 1.10b Aw 2012. The court held that the claimant failed to sufficiently demonstrate that the transaction involved unlawful state aid influencing the procurement procedure's pricing, and consequently could not establish that the contracting authority should have excluded the bidder on conflict-of-interest grounds. The ruling reinforces the Xafax jurisprudence, under which a contract between a contracting authority and a contractor can only be set aside in appeal proceedings where nullity under Article 3:40 BW applies — specifically, conflict with public policy other than procurement law itself. The court's reasoning establishes that mere allegations of financial entanglement or below-market transactions are insufficient; parties must demonstrate a concrete causal link between the alleged conflict and the procurement outcome. Separately, the exhibitie procedure under Article 843a Rv confirms that a mediator's disclosure obligation regarding direct or indirect interests constitutes a statutory legal relationship, giving clients a right to inspect documents relevant to assessing whether a conflict of interest compromises representation.

Practical Guidance

• Structural separation: Implement organizational firewalls ensuring that personnel involved in conformity assessment or dispute resolution cannot receive instructions from any government body, market participant, or affiliated entity, consistent with the independence standard articulated in DSA Recital 112.

• Individual-level conflict protocols: Maintain written conflict-of-interest declarations for every natural person involved in assessment or dispute resolution activities, requiring recusal where any direct or indirect financial or personal interest exists — the standard demanded by DSA Recital 59.

• Transaction vetting: Before engaging contractors or transferring ownership interests involving notified body functions, conduct documented market-conformity pricing analyses to pre-empt state aid and conflict-of-interest challenges under Article 2.87(1)(e) Aw 2012.

• Evidentiary readiness: Preserve records demonstrating the absence of any causal link between alleged financial entanglements and assessment or procurement outcomes, as the Gerechtshof Den Haag ruling places the burden squarely on the challenging party to prove such a nexus.

• Disclosure as legal obligation: Treat conflict-of-interest disclosure not merely as best practice but as a statutory obligation creating enforceable legal relationships, giving affected parties potential inspection rights under Article 843a Rv.