As a first step, the Federal Cabinet decided to make adjustments to the Fertiliser Act in late May 2023. On 6 June 2024, the German Bundestag adopted the Act. However, on 5 July 2024, the Bundesrat did not agree to the amendments to the Fertiliser Act. In early October 2024, the Federal Government referred the matter to the Mediation Committee.

General information on fertiliser law

Fertilisation serves to supply the plants with necessary nutrients, in particular in order to ensure that the population is supplied with high quality and low-cost products.

A tight legal framework ensures that human health, animal health and the ecosystem are not endangered.

Fertiliser Act

The Fertiliser Act regulates in particular the requirements for the placing on the market and application of fertilisers, soil improvers, plant strengtheners and growing media. It contains authorisations to issue ordinances that specify in greater detail the respective provisions.

The Act is aimed at

• ensuring the nutrition of crops,
• preserving or sustainably improving soil fertility, especially the site-specific and use-specific humus content,
• preventing or averting risks to human health, animal health and the ecosystem that may arise through the manufacture, placing on the market or application of fertilisers, soil improvers, plant aids and growing media or through other fertilisation measures,
• ensuring a sustainable and resource-efficient handling of nutrients in agricultural production, and in particular avoiding, as far as possible, nutrient losses into the environment; and
• transposing or implementing legal acts of the European Community or the European Union that relate to areas covered by this Act, in particular in relation to the trade with or application of fertilisers.

On 31 May 2023, the Federal Cabinet adopted the draft amendments to the Fertiliser Act submitted by Federal Minister Cem Özdemir. In May 2024, the coalition parliamentary groups agreed to it. On 6 June 2024, the Bundestag adopted the Act. The Bundesrat also needed to grant its approval. However, in early July 2024, the Bundesrat decided to reject the Act. In early October 2024, the Federal Government referred the matter to the Mediation Committee. The Mediation Committee must now find a future-proof and sustainable solution. However, it cannot yet be predicted when the Mediation Committee will deal with the Fertiliser Act and how long the overall process will take.

Fertiliser Application Ordinance

The Fertiliser Application Ordinance specifies the requirements for good professional practice in fertilisation and regulates how the risks associated with fertilisation – such as nutrient losses – can be reduced.

After the European Commission brought an action against the Federal Republic of Germany in an infringement procedure due to inadequate implementation of the EC Nitrates Directive (Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ L 375 of 31 December 1991, p. 1), last amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (OJ L 311 of 21 November 2008, p. 1)), the European Court of Justice in its ruling of 21 June 2018 (Case C-543/16) decided that the Federal Republic of Germany had failed to fulfil its obligations arising from the Directive.

To implement the European Court of Justice's ruling of 2018, the Federal Ministry of Food and Agriculture (BMEL) issued an ordinance amending the Fertiliser Application Ordinance, which entered into force on 1 May 2020. This ordinance introduced further measures – particularly in nitrate-contaminated and eutrophicated areas  – which aim to reduce or prevent nitrate inputs into the environment from agriculture. Pursuant to the EU Nitrates Directive, the national action programme for the implementation of this Directive is to be reviewed every four years and, if necessary, updated. A review of the Fertiliser Application Ordinance is therefore imminent. Section 13(a)(1)(2) of the amended Fertiliser Application Ordinance contains a rule requiring the Federal Government to issue a general administrative regulation for harmonising the approach to the designation of nitrate-polluted and eutrophicated areas by federal state governments.

Administrative regulation to harmonise the designation of polluted areas

The general administrative regulation for the designation of nitrate-polluted and eutrophicated areas (AVV GeA) was developed within the Federal Government and with the federal states. An initial version came into force on 11 November 2020. In June 2021, the European Commission made it clear that it was dissatisfied with the designation of contaminated areas and that there was a need to make improvements to the AVV GeA.

Therefore, a draft text recasting the AVV GeA was drawn up together with the federal states. The new version came into force in August 2022. The federal states had until 30 November 2022 to re-designate the areas.

Here, we describe the procedure leading up to the recasting of the general administrative regulation on area designation in detail.

Termination of the infringement proceedings

On 1 June 2023, the European Commission discontinued the infringement proceedings against Germany for inadequate implementation of the EU Nitrates Directive. This also for the time being averted the threat of heavy financial penalties. The European Commission has thus confirmed that the right path to future-proof fertiliser rules has now been embarked upon. The key objective is to further strengthen the "polluter pays" principle.

Ordinance amending Section 10(2)(1) of the Fertiliser Application Ordinance – Public participation closed

In order to reduce peak workloads on agricultural holdings, the planned Ordinance is designed to ease the bureaucratic burden by extending the deadline for recording fertilisation operations from 2 to 14 days as specified in Section 10(2)(1) of the Fertiliser Application Ordinance (DüV).

Waiver of the Strategic Environmental Assessment

The Federal Ministry of Food and Agriculture (BMEL) drew up the draft Ordinance amending Section 10(2)(1) of the Fertiliser Application Ordinance (DüV). The planned amendment will slightly modify the National Action Programme under Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (EU Nitrates Directive).

Section 3a (2) of the Fertiliser Act provides for public participation, insofar as ordinances under Section 3(5) of the Fertiliser Act make minor changes to Action Programmes within the meaning of Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ EC No L 375, p. 1), as last amended by Regulation (EC) No 1137/2008 (OJ L 311, 21.11.2008, p. 1) and Section 37 of the Environmental Impact Assessment Act (UVPG) does not provide for a Strategic Environmental Assessment to be conducted.

The draft Ordinance amending Section 10(2)(1) of the DüV, the report on the preliminary examination as well as information on the participation procedure were published in the Federal Gazette in September 2024. During the participatory process, the BMEL received one statement, which was evaluated and taken into account. Public participation was concluded on 7 November 2024.

Help and advice for farmers

The Federal Ministry of Agriculture (BMEL) cooperates closely with the federal states services. The GAK “Improvement of Agricultural Structures and Coastal Protection” can be used to promote water-friendly and low-emission techniques for applying liquid farmyard manure. At the same time, from 2025 onwards, there will probably once again be the option of investment promotion under GAK, including for resource-efficient and low-emission techniques for applying liquid farmyard manure.

Ordinance on Nutrient-Flow Balances

The amendment to the Fertiliser Act in 2017 provided a legal basis for an Ordinance to be enacted on creating binding farm nutrient-flow balances. Under Section 11(a) of the Fertiliser Act, nutrients on the farm have to be handled in accordance with good professional practice in agricultural production.

The Ordinance on Nutrient-Flow Balances (StoffBilV) is intended to ensure that nutrients are handled in a sustainable and resource-efficient manner on farms. The Regulation's chief aim is to map nutrient flows on farms in a transparent and verifiable manner. In respect of optimising nutrient efficiency on farms, the Regulation has a direct positive impact on a more sustainable use of resources and an indirect positive impact on the protected natural assets of soils, water, air and biodiversity. The Ordinance on Nutrient-Flow Balances has been in force since 1 January 2018. Further information on the Ordinance on Nutrient-Flow Balances is available here. According to Section 11(a)(2)(7) of the Fertiliser Act, the BMEL is required to investigate the effects of mandatory nutrient-flow balancing (including the Ordinance on Nutrient-Flow Balances from 2017) and to report back on this matter to the German Bundestag by 31 December 2021 at the latest.

According to Section 11(a)(2)(7) of the Fertiliser Act, the BMEL was required to investigate the effects of mandatory nutrient-flow balancing and to report back to the German Bundestag by 31 December 2021 at the latest. The evaluation of the Ordinance on Nutrient-Flow Balances was conducted by a working group of the Federal Government and the federal states (BLAG) as well as an expert panel in consultation with the BMEL and the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMUV), resulting in a report that will be presented to the Bundestag before the end of 2021.

A draft amendment to the Ordinance on Nutrient-Flow Balances is to be prepared on the basis of the evaluation report. In order to be able to adapt the Ordinance on Nutrient-Flow Balances, the Federal Government has, inter alia, initiated an amendment to the Fertiliser Act (see above for the explanations concerning the Fertiliser Act). However, the Ordinance on Nutrient-Flow Balances will not be able to be optimised and adapted until an agreement on the Fertiliser Act has been reached.

Fertiliser Ordinance

Fertilisers must be approved by European or national fertiliser legislation and may only be applied in accordance with good professional practice. Good professional practice includes bringing the type, quantity and timing of fertiliser application in line with plant and soil requirements.

Fertilisers must be capable of:

• significantly promoting the growth of agricultural crops;
• significantly increasing their yield;
• significantly improving their quality; or
• preserving or sustainably improving soil fertility.

They must not, when properly used, damage human or animal health or pose a risk to the ecosystem.

The Fertiliser Application Ordinance defines in greater detail these legal requirements by laying down rules for the production, composition and labelling of fertilisers. The Ordinance contains rules governing the authorised basic substances, and the levels and efficacy of nutrients, and restricts the levels of undesirable substances.

Released 12. Nov 2024 as article