Scientific Panel Independence
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Overview
19 sources · Jul 23, 2026Legal Framework
The independence and impartiality of scientific advisory panels is anchored in several interlocking provisions. Under the DSA, Recital 92 establishes that verification by independent experts is a structural requirement for accountability of very large online platforms and very large search engines, mandating independent auditing of compliance obligations. Recital 59 extends the independence requirement to out-of-court dispute settlement bodies, specifying that independence must be ensured not only at the institutional level but also at the level of the natural persons entrusted with resolving disputes, including through explicit rules on conflicts of interest. These provisions reflect a layered design: institutional autonomy from the entities being assessed, coupled with individual-level safeguards against financial, professional, or relational conflicts that could compromise objective judgment.
The conflict-of-interest dimension is further informed by procurement principles articulated in Dutch case law, particularly Article 2.87(1)(e) jo. 1.10b of the Aanbestedingswet 2012, which mandates exclusion of contractors where a conflict of interest cannot be resolved. The underlying rationale is that advisory credibility depends on both structural separation and demonstrable absence of conflicting interests at the decision-making level.
Key Developments
The Gerechtshof Den Haag's June 2026 ruling in the RET/RMC matter (cases 200.361.266/01, 200.361.440/01, and 200.361.896/01) provides a concrete threshold for assessing conflict-of-interest claims. The court applied the Xafax framework, which establishes that contracts between contracting authorities and contractors can be challenged on appeal only where nullity arises under Article 3:40 BW — specifically, conflict with public order — and not merely on procurement-law grounds. The court examined whether an alleged prohibited state aid transaction (a share transfer at below-market price) created a conflict of interest warranting exclusion under Article 2.87(1)(e) Aw 2012, ultimately finding the evidence insufficient to establish that the transaction influenced the procurement procedure's pricing or outcome.
The court's reasoning establishes a materiality standard: a conflict of interest must be shown to have actually influenced, or created a real risk of influencing, the decision at issue. Speculative or unsubstantiated conflict claims do not meet this threshold. The burden rests on the party asserting the conflict to demonstrate a concrete nexus between the conflicting interest and the compromised process.
The EDPB's guidance on accreditation of certification bodies reinforces this standard at the EU level, requiring that certifying entities demonstrate structural and operational independence from the bodies they assess.
Practical Guidance
Establish written conflict-of-interest declarations for every panel member, covering direct and indirect financial interests, professional relationships, and prior engagements with the entity under review, consistent with the individual-level independence requirement articulated in DSA Recital 59.
Implement a documented screening procedure at the appointment stage that assesses whether any identified conflict creates a material risk of influence on the panel's advisory output, applying the materiality threshold from the Gerechtshof Den Haag RET/RMC ruling.
Maintain structural separation between the scientific panel and the entity being audited or assessed, ensuring that funding, staffing, and operational reporting lines do not create dependencies that would undermine the institutional independence required under DSA Recital 92.
Where a conflict is identified that cannot be mitigated through recusal or Chinese-wall procedures, exclude the affected member or entity entirely, consistent with the exclusion standard under Article 2.87(1)(e) jo. 1.10b Aw 2012 and the nullity principles of Article 3:40 BW.
Document the independence assessment process contemporaneously, including the rationale for any decision to retain a member despite an identified potential conflict, to create an evidentiary record that demonstrates compliance with the materiality standard if challenged.