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Written-down claims in the Corporate Income Tax Act 1969 (English summary) This research focuses on the way in which the regulations regarding written-down claims in the CITA 1969 can be improved. In order to answer this question, chapter 2 describes first of all the heart of the problems regarding written-down claims, after which the framework for assessing the regulations regarding written-down claims is defined in chapter 3. Subsequently chapters 4 and 5 describe the way in which claims and debts ought to be valued. Chapter 6 deals with the regulation of article 13ba CITA 1969, regarding the conversion and hybridisation of written-down claims. Subsequently chapter 7 describes the waiver of claims. First of all this is viewed from the perspective of the debtor, focusing on the waiver profit exemption. The treatment of the creditor is described next and particulary on article 13ba CITA 1969, which applies if the creditor has a participation in the debtor. This chapter also deals with the regulations of article 15ac, section 2, CITA 1969 and the ancillary measure of article 8, section 4, CITA 1969. These regulations govern the concurrence of the waiver profit exemption with a company that is or has been part of a fiscal unity. Chapter 8 describes the regulations of article 13b CITA 1969, which regard the transfer of written-down claims. Chapter 9 handles the problems of written-down claims in concurrence with the fiscal unity regime. The regulations of article 15ab, sections 6 and 7, as well as 15aj, section 2, CITA 1969, which govern the valuation of mutual claims and debts at the time a company becomes part of, or ceases to be part of, a fiscal unity, are also described in this chapter. Chapter 10 describes the concurrence between the regulations regarding written-down claims and the regulations of articles 14, 14a and 14b CITA 1969, regarding assets and liabilities transactions, legal demergers and legal mergers, as well as the concurrence with share-for-share transfers. Finally, chapter 11 contains a comprehensive evaluation of the regulations regarding written-down claims. The conclusions are: 1) the regulations regarding written-down claims need to be improved; 2) the system of the revaluation reserve of article 13ba CITA 1969 needs to be extended to article 13b and 15ab section 6 CITA 1969. 3) the system of the revaluation reserve of article 13ba CITA 1969 should not be extended to the articles 14, 14a and 14b CITA 1969. 4) the regulation regarding the waiver profit exemption ought to take deferred profits into account in the future. 5) the regulations of article 15ac, section 2, CITA 1969 and the ancillary regulations of article 8, section 4, CITA 1969, which regard/apply to the concurrence between the waiver profit exemption and a company that is (or was) part of a fiscal unity, ought to be repealed; 6) the regulations regarding fiscal unity companies need to be improved in several other ways. 7) the regulations need (technical) improvement on many counts. A list of nearly 70 recommendations has been included.

Convergence in Competition Law. The influence of EC law on substantive application, access, evidence and review by the Dutch administrative competition court, viewed in the light of effective judicial protection The theme of this dissertation is convergence in competition law. It focuses on the influence of European administrative law on Dutch competition law procedures before the administrative competition courts. The underlying thesis is that substantive statutory convergence in the Dutch Competition Law Act will give rise to procedural convergence, as a result of the general idea that procedural law is shaped by and ancillary to substantive law. There are many ways in which such influence may take form: from spontaneous parallelism, top-down influence by the EC principle of effectiveness, to spill-over effects into national procedural law. Should this general thesis prove correct for Dutch administrative competition court procedures, this dissertation would substantiate the idea of a developing administrative ius commune. However, this general expectation is not necessarily affirmed by the results of this research. To map procedural convergence, the research was narrowed down to three central themes: access to court, evidentiary law and review by the competition courts. Judgments concerning the application of the cartel prohibition, merger control and competition complaints have been analysed with regard to these three themes. In summary, the research shows that substantive statutory convergence does not necessarily lead to procedural convergence with regard to these three themes. The research then adds a further layer in which these results are evaluated in light of the requirements of effective judicial protection. These requirements have been defined by analysing the EC principle of effectiveness and proposing a national principle of effective judicial protection. In summary, this evaluation brings to light that the requirements are not always met. For example, access to court must be sufficient in light of the underlying substantive law. Also effective judicial protection requires that there must be a clear and effective system of judicial protection. Such access is not always given. The allocation of the burden of proof must not make it impossible for the competition authority to enforce competition law effectively, but must also, specifically in proceedings concerning a criminal charge, not be shifted to the undertaking accused. Neither must it be so onerous that access to a substantive hearing before the competition authority becomes impossible for complainants. The standard of proof should, at the very least, be clear. However, many evidentiary rules have not yet been dealt with in judgments by the national courts and clarity is lacking in several respects. Furthermore, judicial review must be sufficiently intensive, again in light of substantive law. It can be questioned however, whether this requirement is always met, doubts particularly concern review of economic evidence and the rights of defence. Lastly, the judges themselves must be active and involved, and should concentrate on the central issue of the dispute. For this the courts need to have (recourse to) sufficient expertise. Again, it can be questioned whether this is the case across the board. Generally therefore, the requirements of effective judicial protection are not satisfied in every case. Concrete recommendations have been put forward to ameliorate this situation.

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.

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.

When the public-law Sickness Benefits Act (Dutch Ziektewet) was privatised, this created the question of how to protect sick employees’ privacy in their labour-law relationship. It is now the employers' responsibility to carry out the labour-law scheme governing sickness, which is part of Title 7:10 of the Dutch Civil Code (Dutch Burgerlijk Wetboek). These new rules have caused tension in labour-law relations, since the instructions and measures issued by the employer may affect employees’ personal lives, thus restricting their fundamental right to privacy which follows from the Dutch Constitution and human rights treaties. Regulations should offer sick employees sufficient protection against the employer and any other parties who might violate their rights while executing the rules. Effective instruments should be available to act against violations. This thesis focuses on the question to what extent the privacy of sick employees is sufficiently protected by existing regulations. In order to answer this question, this thesis develops a normative assessment method. This method is necessary to answer the question of when the protection of privacy is ‘sufficient’. This method is based on the regulations and case law concerning the right to privacy. The result of the thesis is that on a large number of points, the execution of the legal scheme governing sickness meets the criteria concerning privacy protection. Violations are only committed on the basis of the legal powers granted by law to the employer and experts. The legislator has laid down additional rules regarding the provision of information as part of reintegration processes. Moreover, guarantees are in place to ensure confidential treatment of medical information. The relevant rules are based on the assumption that employers must not receive any medical information. Medical information is processed only by medical experts who are bound by medical professional secrecy. The medical profession has itself set very clear rules outlining which information can be provided to which party in the execution of the regulations governing sickness, this in order to guarantee medical secrecy. However, the analysis has also shown that on several other points the execution of the rules fails to meet the normative criteria, and where there is thus no sufficient protection of privacy. The answer to the research question is that in several respects legislation fails to meet some of the important criteria of privacy. The possible solutions consist of additions to or clarifications of several aspects of the law and regulations. The concluding chapter describes which legal provisions should be expanded or clarified and how. It would also be necessary to tighten the rules of the medical profession on some points, something which will be up to the professional medical organisations. In addition, the courts have an important role in offering the employee legal protection. This thesis makes also several recommendations regarding how courts can protect privacy.

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.

Amongst the main concerns that preceded the European Union’s all time biggest enlargement of 2004 was whether the new Member States would smoothly integrate into the EU decision-making procedures. The worrying speculations of how the difference between the interest, political- and negotiation cultures of ‘old’ and ‘new’ Member States would slow down decision making in the EU ? turned out to be wrong. Empirical studies show that the accession of the new Member States did not slow down the legislative machinery of the EU. However, the challenge that the ‘new’ countries ? amongst them Hungary ? faced, were manifold and required significant constitutional and institutional preparation and adaptation for acting as Member State. The constitutional preparation required the introduction of the ‘Europe clause’, an authorizing article laying down the rules on the transfer of competences from national to EU level. In Hungary, the years-long debates resulted in a constitutional amendment that authorized the exercise of the powers at the EU level replacing the originally sole exercise by the Hungarian governmental institutions. The thesis analyzed the institutional linkages between the national institutions and the EU level in the different stages leading up to EU lawmaking. The coordination of EU policy at national level revolves around the establishment of a position that Hungarian representatives will exert in the EU decision making. The Government’s dominant role in operating the coordination structure through a multi-layered construct connecting departments reinforces the tendencies prior to accession, when the Government played a central role in the conduct of accession negotiations and the Parliament acted as a bystander. After accession, the Parliament augmented its intention to join the Government in the conduct of EU policies and now scrutinizes the participation of this latter in the EU law-making processes. The parliamentary involvement includes significant information and deliberating rights. However, despite the existing control tools that Parliament has at its disposal, practice has shown that Parliament has not held Government to account for its deeds in the legislative discussions in Brussels or enforced its views previously expressed. The national position is then channeled into the Brussels arena. The matrix of networks that Government has established in Brussels centers around the work and function of the Permanent Representation, but extends to various other actors in Brussels and has on multiple occasions lead to successful lobbying and interest-representation in the EU law-making process. Once the EU act is adopted, it arrives back to national level to exert its effect. For this aim, additional implementing legislation by national institutions is sometimes required. In this respect, the Hungarian legislative principles maintain principles such as democracy and the primacy of Parliament’s legislative role vis-୶is Government. Thus, while implementing legislation is a ‘new’ task as well, it fits neatly into the traditional constitutional principles and structure of separation of powers and confirms Parliament’s strong position therein. The findings of the research revealed that Europeanization does not necessarily lead to convergence between countries in every aspect of a country’s participation and membership to the EU.

Marokkanen in Nederland leven in een rechtspluralistische situatie. Zij hebben te maken met het Nederlandse, het Marokkaanse en het islamitische recht. Hoe gaan zij daarmee om? Welk recht laten zij in welke situatie prevaleren? Door middel van een aantal interviews wordt een aanzet tot onderzoek naar deze kwestie gegeven.

The central notion of this article is that of “decision” as a means to shape one’s life and life biography. Decision is considered to be a prominent feature of contemporary society and the one through which we exercise our autonomy as a right to selfdetermination. Decisions, however, require information. In contemporary society, information is readily available but the effective use of that information often requires the help of others. Furthermore, as decisions transform into action again we often need others. These “others” must decide for themselves whether to help or assist us as an expression of their autonomy. These concepts of autonomy, decision, information and the other are key notions which we need to understand the role of self-determination in our society. We are accustomed to having legal frameworks which guide, facilitate and limit us in selecting information, making decisions and exercising self-determination. In this article the legal framework of euthanasia, as it exists in the Netherlands, is taken as a case study to illustrate the role of information with respect to the notion self-determination. This article explores how the abundance of information available to us in contemporary society has an impact upon the decisions we make and, more often than not, must make.

This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck's theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a "new" social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like.

Incidents of identity fraud are increasing in scope and variety and can be regarded as a global problem. Understanding the problem properly demands a general description of identity fraud. An extensive review of the literature shows that there is no such general description, although it would contribute to the development of a structural and cooperative approach among relevant stakeholders (states, IGOs, private enterprises, NGOs) in Europe and elsewhere to combat identity fraud. This article reports on a research project that has been carried out by Dutch authors. It consisted of an analysis of literature in the Netherlands, the USA, the UK, France, Belgium and the European Union. Some 30 definitions were analysed with an aim to formulate a general definition of identity fraud. Formulating such a definition enabled a subsequent analysis into the extent to which identity fraud is covered by existing legislative measures and the necessity or desirability of introducing new legislative measures.

Modern Western society is perceived as increasingly complex and contingent and in an era wherein our own identity is a matter of construction, the macro level of a description of societal unity constitutes a no less demanding task. Despite social complexity and contingency, societies are still in one way or another perceived and described as unities and it appears that normatvity in general and law in particular play an important role. This is the perspective of this research. Niklas Luhmann's social systems theoretical account of society is considered as a plausible theoretical offer and therefore the central problem is formulated as follews: does Luhmann's approach account for the unity of modern Western society and the role normative aspects play in the observation and description of society? After inventarizing criticisms of Luhmann's theory of society, the author concluded that the common ground of these criticsms pertains to the operational closure of social systems. As a consequence, the applicability and consistency of Luhmann's theory of society became a topic of discussion. In this light, 2 research questions were formulated, both regarding the demarction of 2 specific social systems: society and law. It was argued that Luhmann's theory of society offers sufficient concepts to describe the demarcation of society and law but that these were not informative with regard to the unity of concrete and specific societies. To achieve an adequate description of societal unity, the introcdution of organizing principles or normativity into the description of society is necessary. This is illustrated by means of the concept of 'certainty'.

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.

De rechter beoordeeld. Over aansprakelijkheid en verantwoordelijkheid in civiel- en staatsrechtelijk perspectief

This article analyzes a type of ADR seeking to resolve complaints of consumers and in particular of hospital patients. In doing so, it aims to establish how this type of procedure differs from “normal” litigation and why it proves to be successful. It aims to show that its success is not only due to practical considerations, such as time, money and informality but that there is also a more principled reason. This reason relates to the appeal of the citizen’s self-empowerment in an age where individuals constantly move from the public realm as citizens towards the private realm as consumers.