Plants need nutrients in a “balanced” ratio to ensure optimal growth. Fertilisation in line with good professional practice provides plants with the necessary plant nutrients and maintains and promotes soil fertility. In 2017, national fertiliser law was substantially amended in order to bring it into line with new technical requirements to improve the efficacy of fertilisation and to reduce environmental pollution.
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.
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 in order to lay out the detailed arrangements in this respect. It became necessary to amend the Fertiliser Act in order to enact the Fertiliser Application Ordinance and rules provided for therein, inter alia those required to implement the EC Nitrates Directive. 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 which 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 circulation or application of fertilisers.
The amended Fertiliser Act was promulgated in the Federal Law Gazette on 15 May 2017.
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. In accordance with this, the nitrogen fertiliser requirements of crops for arable land and grassland must be calculated as a location-specific maximum limit prior to application. The fertiliser requirement must be calculated to ensure a balance between the estimated nutrient requirement and the nutrient supply.
Aspects that must be taken into account in this respect include, in particular:
- the yield level of crops;
- nitrogen levels available in the soils;
- additional nitrogen levels available during growth of the respective crop; and
- the residual nitrogen from the application of organic fertilisers in the previous year and from previous crops and intercrops.
The Fertiliser Application Ordinance contains restrictions on the application of nitrogen and phosphate fertilisers depending on the location and soil condition, regulates periods in which the application of fertilisers is prohibited and sets requirements for the storage of organic fertilisers.
The nutrient comparison includes an assessment of the supply and removal of nitrogen and phosphate for the past fertilisation year.
The new Fertiliser Application Ordinance has been in force since 2 June 2017.
The Federal Information Centre for Agriculture (BZL) hosted by the Federal Office for Agriculture and Food (BLE) released a brochure on the Fertiliser Application Ordinance entitled “The new Fertiliser Application Ordinance” that has been published at the following link: https://www.ble-medienservice.de/1756/die-neue-duengeverordnung.
Ordinance amending the Fertiliser Ordinance
The Federal Ministry of Food and Agriculture (BMEL) has drawn up a Draft Ordinance amending the Fertiliser Ordinance (DüV) to implement the ruling of the European Court of Justice which was issued in June 2018 due to inadequate implementation of the EC Nitrate Directive. The Bundesrat approved the draft on 27 March 2020.
Strategic Environmental Assessment for the Amendment of the Fertiliser Application Ordinance
The DüV is an integral part of 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. The draft Ordinance amending the DüV is designed to modify the national Action Programme. In order to amend the Action Programme as intended, it is therefore necessary, in accordance with section 35 (1) no. 1, in conjunction with Annex 5 no. 1.12 of the Act on the Assessment of Environmental Impacts (UVPG), to carry out a Strategic Environmental Assessment (SEA) (see also Section 3a(1) of the Fertiliser Act), i.e. it is necessary to assess the effects of the intended new or amended requirements in the Fertiliser Application Ordinance (DüV), as part of the Action Programme, on the assets to be protected, such as in particular humankind, animals, plants, biodiversity, land, soil, water, air, climate and countryside, as referred to in section 2(1) of the Act on the Assessment of Environmental Impacts (UVPG).
To this end, the scope of the SEA was first defined at a scoping meeting of the competent authorities on 4 September 2019. Subsequently, the environmental impact expected from the amendment to the DüV was calculated and then described and assessed in an environmental report. Finally, the environmental report was discussed and agreed upon within the Federal Government.
Some of the key elements of the environmental report consist in showing the extent to which the amendments to the Fertiliser Application Ordinance, as part of the National Action Programme, and reasonable alternatives affect the assets to be protected (humans, biodiversity/flora/fauna, water, climate/air, soil/area, landscape, cultural and material assets) and the interaction between these assets.
This environmental report documents the fact that the intended amendments to the Fertiliser Application Ordinance result in a mostly positive or neutral environmental impact.
Pursuant to Section 42 UVPG, the BMEL carried out a public consultation on the draft Ordinance amending the DüV, which is intended to amend the National Action Programme, and on the environmental report prepared for this purpose.
The opportunity for the public concerned to comment ended on 2 April 2020.
Help and advice for farmers
The Federal Ministry of Agriculture (BMEL) cooperates closely with the Länder services. The GAK (“Improvement of Agricultural Structures and Coastal Protection”) can be used to promote low-emission farm-manure application techniques.
Ordinance on Nutrient-Flow Balances
The Amendment to the Fertiliser Act provided a legal basis for an Ordinance to be enacted on the creation of 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 is the last component of the so-called fertiliser package, which is intended to ensure that nutrients are handled sustainably and resource-efficiently on the farm and thus that improvements can be made to fertilisation, nutrient efficiency and environmental conservation.
The Ordinance on Nutrient-Flow balances has been in force since 1 January 2018.
Here you will find further information on the Ordinance on Nutrient-Flow Balances.
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 the health of humans or animals 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 also restricts the levels of undesirable substances.
Infringement proceedings of the European Commission
In the autumn of 2013, the European Commission initiated infringement proceedings against Germany due to inadequate implementation of the EC Nitrates Directive. In October 2016, the European Commission brought the case before the European Court of Justice. The European Court of Justice delivered its judgement in June 2018. The ruling referred to the legal situation as it was in September 2014 and thus to the old Fertiliser Application Ordinance of 2006. The European Court of Justice upheld the pleas submitted by the Commission. This includes, in particular, the following six complaints:
- violation of restrictions on the application of fertilisers on agricultural land with due regard to the principle of balanced use of fertilisers;
- violation of the periods during which the application of fertilisers on agricultural land is prohibited;
- violation of rules on the capacity and design of vessels for the storage of livestock manure;
- violation of the maximum levels of livestock manure per year and hectare;
- violation of rules on the application of fertilisers on steeply sloping agricultural land; and
- violation of rules on the application of fertilisers on water-saturated, flooded, frozen or snow-covered soil.
In July 2018, the Federal Government received the letter of formal notice sent by the European Commission with respect to the implementation of the ruling of the ECJ. In September 2018, the Federal Government sent its reply to the European Commission; this had been agreed upon with the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU). The ministry draft is now being drawn up, after talks were held with the European Commission, the BMU, the federal states and relevant associations on fleshing out the amendment to the Fertiliser Application Ordinance. The schedule for the implementation of the ECJ ruling specified by the European Commission envisages that the amendment to the Fertiliser Application Ordinance should take effect in March 2020.
The European Commission does not deem the proposals made to the European Commission on an amendment to the Fertiliser Application Ordinance adequate in order to fully comply with the ruling. On 25 July 2019, the European Commission therefore decided to institute a second infringement procedure against Germany due to inadequate implementation of the EC Nitrates Directive. On 26 July 2019, the Commission sent the letter of formal notice. The Federal Government replied to the letter of formal notice in its official communication dated 26 September 2019 and made proposals to the Commission on an amendment to the Fertiliser Application Ordinance.
As a next step, the European Commission could bring the matter before the European Court of Justice if it believes that Germany has failed to properly comply with the ruling, or has failed to do so in good time. A second infringement procedure would increase the risk of financial penalties for Germany. We must therefore act urgently and implement the ECJ ruling satisfactorily. In the worst case scenario, Germany would face severe penalty payments of a maximum of around EUR 857,000 per day of non-compliance.