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This article presents a comparative perspective of the implementation of the Water Framework Directive (WFD). The investigated Member States are the Netherlands, Luxembourg, Belgium, France, Germany, the United Kingdom, Denmark, Romania, Italy, Spain and Portugal. The implementation of the WFD in these Member States was researched with the help of legal experts who completed questionnaires or were interviewed and-limited to five Member States-through interviews with civil servants who were involved with the implemention of the WFD. This research demonstrates that the WFD leaves so much room for discretion that the Member States adopt different approaches concerning the implementation of fundamental parts of the Directive. Although the need for flexibility due to the differences in circumstances is recognised, the new governance approach of the WFD demonstrates a risk that unambitious national practices will leadto a lack of practical effectiveness. Especially in transboundary river basins this may harm more ambitious Member States.

In 1886 the Criminal Code first came into effect. It stipulated, in article 254, that maltreatment of an animal was a crime. Sanctions could be imprisonment for a period of up to three months, or a fine of 120 guilders at most. Maltreatment was not defined. The basic principle underlying the penal provisions was not the protection of the interests of the animal itself. A generally acceptable justification for punishment was found in the infringement on the subjective rights of citizens. It was held that maltreatment of animals offended public morals and the decency of man. This did not change when in 1961 the protection of animals was partly transferred to the Animal Protection Act. Although a different view had been voiced, until the 1980s human-animal relationships as reflected in the law could better be described as inter human affairs. In 1981 government responded to the outcries of concern from animal protection organizations. From now on animal health and welfare would have to be protected for the sake of the individual animal itself. Parliament approved of this idea, and since 1981 the principle has also been established in our system of law. The practical consequences of the introduction of this fundamental notion have been debated in the Netherlands ever since. The discussion seems to have reached no consensus so far. In 1992 the new Animal Health and welfare Act was introduced, which referred only vaguely to welfare. (Staatsblad 1992, 585). According to its preamble the AHWA is given with a view to the health and the welfare of animals, because of ethical considerations, but no explanation of the ethical borders neither of the concept welfare is given . My research proves that considering the verdicts of the judges in the Dutch courts, it appears that judges have problems with interpretation of the legal provisions. I suggest the a specialized court is established. This court should deal with animals matters exclusively. Furthermore, I suggest the redaction of the provision on maltreatment of individual animals (unforeseeable maltreatment) being altered in the sense that instead of using many complicated criteria, the provision contains only the word maltreatment as the only criteria. This open provision gives the judge room to develop jurisprudence concerning maltreatment of animals.

This research concerns the implementation of European environmental directives in national law, with a focus on transposition. The research question is what role the directives themselves have in the occurrence of implementation problems in the Member States. This is based on the hypothesis that implementation problems are not always the fault of the Member States (as is suggested by the infringement procedure of Article 258 TFEU / Article 226 EC Treaty), but may also be caused by flaws in the directives themselves, such as unclear or impossible obligations, bad coherence between directives etc. Ten environmental directives are selected for further research concerning problems with their implementation. These problems are tested in three different Member States: Denmark, Germany and the Netherlands. This test confirmed the role of these problems in practice. A major problem is the directives’ lack of clarity where it concerns the scope of the directive. Member States tend to opt for a limited interpretation, whereas the Commission usually holds a broader view. Most of the time, the ECJ follows the Commission in her broad interpretation. However, the interpretation of the Member States is not always unreasonable. The ECJ sometimes seems to overstretch the meaning of a directive a bit. Other problems are a lack of coherence between directives in the use of definitions and in the applicability of multiple directives to the same situation and lack of clarity concerning definitions. Different instruments such as area protection, emission standards, environmental quality standards, procedural requirements and the obligation to set up plans or programmes each have their own problems to which attention should be paid when prescribing such instruments. Soft law can be helpful for Member States, especially when filling in technical standards or vague norms, but interpretative documents should be handled with care. They usually reflect the opinion of the European Commission or other stakeholders and are not legally binding. Member States should consider their own preferences on whether or not to follow these documents. However, Member States need not take all the blame for problems with the transposition of directives but they do have their own responsibility as co legislator. Not all problems concerning transposition can be blamed on flaws in directives. Member States are obliged to loyally execute directives, even if this requires amendments of perfectly functioning national legislation or the designation of vulnerable but economically important areas. Better impact assessments with a focus on legal and environmental effects of new legislation, both on the European and the national level, would help to prevent this situation. If the effects of a directive are known beforehand, Member States will be better able to consider whether they wish to commit themselves to these obligations.

Public order disturbances may occur during international events such as football tournaments which attract football supporters from across the borders or summits organized by international organizations targeted by protestors. In order to enhance co-operation between law enforcement authorities, the Council of the European Union in the third pillar (Justice and Home Affairs, JHA) calls on the Member States to exchange information, including that on (groups of) persons who (may) form a threat to the public order. Apart from a few exceptions, the JHA-Council uses for this purpose soft law instruments, such as legally non-binding resolutions, recommendations and conclusions, including some very detailed handbooks. This study describes those acts, analyses them and checks them against the legal protection provided by principles of data protection. The study shows that the Council does not always give a clear definition of the ‘information’ the Member States are required to exchange and particularly fails to be clear when the information is supposed to include personal data. As far as the review of the Council’s acts with regard to the principles of data processing is concerned, the Council very rarely formulates a well-defined and clearly specified purpose for the exchange of personal data, the most fundamental requirement of data protection law. Failing to specify a well-defined purpose, the Council does not give a clearly defined framework either which lays down which (kinds of) law enforcement authorities should be exchanging information. Sometimes the Council even creates the impression that all kinds of authorities and other parties should freely share information with each other. Nor do the Council’s acts provide any clarity on whose personal data should be mutually supplied. There are no definitions of football hooligans and violent demonstrators based on objective and legal criteria. Only rarely does the Council provide clues on the time of processing and the length of storage of the exchanged personal data. All this flaws lead to the risk of an excessive and disproportionate processing of personal data. With respect to the principles concerning the personal data themselves, the Council does not pay any attention to the principle that the data must be lawfully and fairly obtained, that data should be accurate and that they must be secured. At most, the Council states that Member States must ensure the confidentiality of the communication. Finally, the Council does not pay any attention to the subjective rights of the data subjects and legal protection. At most the Council refers to standards in domestic and international data protection law as to be respected or taken into account. The conclusion is that the Council of the European Union’s acts relating to transnational (police) co-operation regarding the maintenance of public order in the European Union, on the one hand repeatedly and emphatically encourage the Member States to exchange information and personal data, but, on the other, that they fail to meet the requirements given by the principles of data protection.

The European Commission presented the ‘EU Passenger Name Record (PNR) system’ in 2007 as a tool in the fight against terrorism and organised crime. One of the proposed instruments of this system is the Framework Decision on the use of PNR, which provides for the storage and exchange of passenger data between EU member states and between member states and non-EU countries. Current Council proposals make clear that the passenger data may also be used to investigate other (serious) crimes or to prevent illegal immigration, which raises both practical and legal concerns. This paper describes the legal implications of the EU PNR system, focusing in particular on international human rights standards. It is to be hoped that, when preparing the so-called ‘Stockholm programme’, including a new multiannual programme for policies in the field of freedom, security and justice, both the EU institutions and member states will take these standards sufficiently into account.

In order to prevent and reduce water nuisance and flooding, it should be possible to modify water systems and to prevent activities that increase the risk of water nuisance and flooding. The management of water systems needs a set of public law instruments which also enable the actual performance of that management. These public law instruments are provided by the Water Act (Waterwet), the Water Boards Act (Waterschapswet) and the relevant rules and regulations based on these two Acts. This book focuses on the question as to what extent water system managers are able to perform their water assignment using the public law instruments provided by this legislation, and how they can use these instruments in an effective manner. In addition, an analysis is made of possible problems in using these instruments and how they might be solved. The main conclusion of this study is that the water system managers have sufficient and adequate public law instruments at their disposal to carry out their management assignment. For the active management assignment, the Water Act provides for an effective project procedure regarding construction or modification of certain water management structures, which even allows the Provincial Executive to take decisions if municipal bodies refuse to cooperate. If the construction, modification or management of water management structures requires the cooperation of any third parties, the the water system managers have the authority to enforce this cooperation imposing or invoking an obligation to tolerate. When the third party does not want to cooperate they can use the instrument of expropriation. In order to carry out their consolidating management assignment, the water system managers are authorised to regulate the use of water systems in order to prevent nuisance and flooding. They can therefore adopt a system of exemptions and permits or general rules that apply to activities that may cause the standards to be exceeded. Although the existing public law instruments are generally adequate, this book also includes some recommendations on the subject of legal certainty, efficiency and transparency to improve these instruments to carry out the water management assignment. Carrying out the water management assignment does not just require public law instruments to be adequate, but also that these instruments are actually used. Therefore, it is significant that the division of tasks and powers between the various government authorities that are involved in the water management assignment is clear and that these authorities bring their relevant policies into line. The main recommendations of this study focus on the recognition of the water system manager’s own responsibility to carry out his management assignment and on giving them the necessary public law instruments to actually exercise that responsibility. Other recommendations include: Recognition of the provincial authorities’ crucial role when bringing municipalities’ and Water Boards’ policies in line with their use of public law instruments, and introduction of a strict division between the water system managers’ power to establish generally binding instructions and the municipalities’ power to give generally binding instructions pursuant to the Spatial Planning Act.

This book examines the Role of the European Court of Justice in the Intertwined Separation of Powers and Division of Powers of the European Union. This constitutional role is examined from five different angles. Chapters II and III examine the role of the Court of Justice in the Separation of Powers in the European Union, looking at the scope (Chapter II) and limits (Chapter III) of its judicial review. A similar structure will be used for Chapters IV and V with regard to the Division of Powers of the European Union, examining the scope (Chapter IV) and limits (Chapter V) of its case law regarding the Division of Powers in the European Union. Subsequently, Chapter VI will analyse what the effects of the fundamental rights case law of the Court of Justice have been with regard to the intertwined Separation of Powers and Division of Powers. It will be demonstrated that the Court of Justice has not attempted to paint the constitutional principles which existed in Treaties, but rather has interpreted the Treaties as a “Living Constitution”, giving a constitutional interpretation to an EEC Treaty evolving into a constitution.

This paper analyzes the hypothesis that the recent challenges for Serbian statehood – which culminated in Kosovo’s unilateral declaration of independence – prompted Serbia to redefine its relationship with the European Union and to accelerate the accession process, and thus to depart from Westphalian nation‐state building by taking the path of neo‐Westphalian member‐state building. It goes on to argue that Serbia’s statehood can best be preserved if it is embedded within the EU body politic, which would represent a move away from the deadlock of a history freighted with the Westphalian legacy. To this end, the paper discusses the implications of three competing claims for the concept of Serbia’s statehood: the EU’s, Kosovo’s, and Serbia’s own claims to sovereignty and pertinently the manner in which the Kosovo situation affected Serbia’s EU integration policy, and to a lesser extent, the EU’s policy towards Serbia.

This study focuses on tht profound institutional transformation of the water authority ( waterschap) in the past fifty years. The number of water authorities was reduced from over 2,600 to 26, while never before in the water authority's long history, were the changes with respect to the organisation of its tasks , its funding and the composition and election of its board as dramatic as in the past fifty years. The Water Authrities (Modernisation) Act , which came into force late in 2007, constituted the final stage of this transformation. The study is based on the following three questions : -what institutional form will the water authority have after the enactment of the Water Authorities (Modernisation) Act? -does the historical context of the water authority provide an explanation for this institutional form and would it be possible to firther improve this form? -will the water authority have a raison d'etre in the future , in light of its historical development? These questions are answered by dividing the study into three sections. Firstly, we gave an account of the profound institutional transformation of the water authority in the past fifty years and of the changes envisaged in the near future as a result of the Water Authorities (Modernisation ) Act. Secondly, we analysed this highly fundamental recent amendment of the law and we put forward specific proposals for improvement or further research. Thirdly, and finally, we answered the ever-present question of the raison d'etre of the water authority , as it was asked in the past decades. This answer is based on the framework for analysis, presented in chapter 11, which is founded on the building stones presented in the preceding chapters. This framework for analysis has shown that the water authority, more than other public authorities (centarl government, provinces and municipalities) is an appropriate and sensible way to institutionalise regional and local water management. The study can be of social relevance to the organisation of public authorities in general and (regional and local) public water management in particular. Although the study focuses primarily on the situation in the Netherlands , the set up of the analysis would allow it to be used for further reflections on ' good water governance ' anywhere else in the world. The worldwide waterproblems ask for good water governance.

The recent proposals of the European Commission for a European Border Management Strategy are based on an almost blind faith in the use of large-scale databases, identification measures and biometrics for immigration and border control purposes. It is clear that these measures entail a risk to the protection of not only the right to privacy and the right to data protection, but also to the freedom of movement and the principle of non-discrimination. This paper by Evelien Brouwer, lecturer at the Law School of Utrecht University, considers the human rights implications of the Schengen Information System (SIS). Describing the case of Mr. and Mrs. Moon, who have been reported as “inadmissible” in the SIS for more than ten years, the difficulties for third-country nationals trying to remedy a false or unlawful SIS report are highlighted. The Moon case illustrates that the outcome of national proceedings dealing with an SIS alert can be very different. The author concludes with recommendations to guarantee individuals’ rights to effective remedies and to improve the position and powers of national courts.

In een civiele zaak tussen overheden treden complicaties op ten opzichte van het Kalimijnen-arrest. Rechterlijke bevoegdheid en toepasselijk recht moeten wellicht op grond van andere regelingen bepaald worden en effectuering van een vonnis is mogelijk problematisch. De tweewegenleer zal echter niet aan kostenverhaal in de weg staan.

Heeft de herziening van de wet op de rechterlijke organisatie de onafhankelijkheid van rechters en de kwaliteit van de rechtspraak aangetast?