2006/1013/EC: Commission Decision of 22 December 2006 granting a derogation requested by Germany pursuant to Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (notified under document number C(2006) 7075)
Date: 2006-12-22
Institutions: European Commission
Subjects: Germany, chemical salt, derogation from EU law, fertiliser, pollution control, pollution from agricultural sources, soil conditioning, water pollution

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 22 December 2006

granting a derogation requested by Germany pursuant to Council Directive 91/676/EEC concerning
the protection of waters against pollution caused by nitrates from agricultural sources

(notified under document number C(2006) 7075)

(Only the German version is authentic)

(2006/1013/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

these farms would not, however, exceed 170 kg/ha
nitrogen per hectare per year.

Having regard to the Treaty establishing the European Com-
munity,

Having regard to Council Directive 91/676/EEC of 12 December
1991 concerning the protection of waters against pollution
caused by nitrates from agricultural sources (1), and in particular
the third subparagraph of paragraph 2 of Annex III thereto,

Whereas:

(1)

(2)

(3)

If the amount of manure that a Member state intends to
apply per hectare each year is different from the one
specified in the first sentence of the second subparagraph
of paragraph 2 of Annex III to Directive 91/676/EEC and
in point (a) thereof, that amount has to be fixed so as not
to prejudice the achievement of the objectives specified in
Article 1 of that Directive and has to be justified on the
basis of objective criteria, such as,
in the present case,
long growing seasons and crops with high nitrogen
uptake.

Germany submitted to the Commission a request for a
derogation under third subparagraph of paragraph 2 of
Annex III to Directive 91/676/EEC.

The requested derogation concerns
the intention of
Germany to allow the application of 230 kg nitrogen per
hectare per year from livestock manure on intensive
grassland fields of specific farms. The application of
nitrogen from livestock manure on the arable crops of

(1) OJ L 375, 31.12.1991, p. 1.

(4)

(5)

Approximately 13 500 farms, 500 000 hectares and
11 600 t year nitrogen corresponding respectively to
2,4 % farms, 2,9 % Utilised Agricultural Land and 0,7 %
total manure nitrogen are estimated to be potentially
encompassed by the derogation. They are mainly located
in Bavaria (Oberbayern), Baden Wurttemberg (Tubingen),
Lower Saxony (Luneburg, Weser-Ems) and Schleswig-
Holstein.

German

legislation

implementing Directive
The
91/676/EEC, Fertiliser Ordinance of 10 January 2006
amended lastly on 28 September 2006, has been adopted
and applies equally to the requested derogation.

(6) Water quality data submitted by Germany with the Third
Report on the implementation of the Nitrates Directive
2000-2003 and with the derogation request show a
decrease in nitrates concentration of surface water at
83 % of monitoring stations and a stable concentration
at 9 % of monitoring stations compared to the period
1991-1994. Regarding groundwater,
the monitoring
system established for the purpose of assessing imple-
mentation of
that
nitrate concentration is decreasing in approximately 50 %
of monitoring stations and stable in approximately 15 %
of monitoring stations.

the Directive 91/676/EEC shows

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(7)

(8)

(9)

(10)

(11)

(12)

in particular with
livestock decreased,
The number of
regard to the number of cattle (-25 %). Manure nitrogen
input per hectare per year dropped by 11 % between
1991-1993 and 2002-2004; nitrogen surplus decreased
from 120 to 101 kg per hectare in the same period.

Germany, in conformity with paragraph 5 of article 3 of
Directive 91/676/EEC, applies an action programme
throughout its whole territory.

The supporting documents presented in the notification
submitted by Germany show that the proposed amount
of 230 kg per hectare per year of nitrogen from livestock
manure is justified for intensive grassland fields on the
basis of objective criteria such as long growing seasons
and crops with high nitrogen uptake.

The Commission after examination of the request from
Germany considers that the proposed amount of 230 kg
per hectare per year nitrogen from livestock manure will
not prejudice the achievement of the objectives of Direc-
tive 91/676/EEC, subject
to certain strict conditions
being met.

This Decision should be applicable in connection with
the present action programme in force for the period
2006 to 2009.

The measures provided for in this Decision are in accord-
ance with the opinion of the Nitrates Committee set up
pursuant to Article 9 of Directive 91/676/EEC,

Article 3

Scope

This Decision applies on an individual basis and subject to the
conditions set out in Articles 4, 5 and 6 to cattle farms and it is
restricted to fields under intensive grassland.

Article 4

Annual authorisation and commitment

Farmers who want

1.
submit an application to the competent authorities annually.

from a derogation shall

to benefit

2.
Together with the annual application referred to in para-
graph 1 they shall undertake in writing to fulfil the conditions
provided for in Articles 5 and 6.

3.
The competent authorities shall ensure that all the applica-
tions for derogation are submitted to administrative control.
Where the control carried out by the national authorities of the
applications referred to in paragraph 1 demonstrates that the
conditions provided for in Articles 5 and 6 are not fulfilled, the
applicant shall be informed thereof. In this instance, the applica-
tion shall be considered to be refused.

Article 5

HAS ADOPTED THIS DECISION:

Application of manure and other fertilisers

Article 1

The derogation requested by Germany by letter of 1 February
2006, for the purpose of allowing a higher amount of livestock
manure than that provided for in the first sentence of
the
second subparagraph of paragraph 2 of Annex III to Directive
91/676/EEC and in point (a) thereof, is granted, subject to the
conditions laid down in this Decision.

The amount of

1.
livestock manure applied each year on
fields under intensive grassland, including by the animals them-
selves, in cattle farms shall not exceed the amount of manure
containing 230 kg of nitrogen per hectare, subject to the condi-
tions laid down in paragraphs 2 to 9.

The total nitrogen inputs shall comply with the nutrient
the

the considered crop and take into account

2.
demand of
supply from the soil.

Article 2

Definitions

3.
A fertilisation plan shall be kept for each farm describing
the crop rotation of the farmland, the planned application of
manure and nitrogen and phosphate fertilisers. It shall be avail-
able in the farm each calendar year by 1 February at the latest.

The fertilisation plan shall include the following:

For the purpose of this decision, the following definitions shall
apply:

(a) ‘cattle farms’ means holdings with more than three livestock

units, where at least two-thirds of livestock are cattle,

(b) ‘fields under intensive grassland’ means the fields managed
as permanent or temporary grassland (generally temporary
lies less than four years), with at least four cuts per year or
three cuts plus pasture.

(a) the number of livestock, a description of the housing and
including the volume of manure storage

storage system,
available;

(b) a calculation of manure nitrogen (less losses in housing and

storage) and phosphorus produced in the farm;

(c) the crop rotation and acreage for intensive grassland and for
including a sketch map indicating location of

each crop,
individual fields;

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(d) the foreseeable nitrogen and phosphorus crop requirements;

Article 7

(e) the amount and the type of manure delivered outside the

farm or to the farm;

Other measures

(f) contribution from soil organic matter net mineralisation,
quantification of the amount of nitrogen present in the soil
at the beginning of the growing season and contribution
from crop residues and leguminous crops;

(g) nitrogen and phosphorus application from manure over
each field (parcels of the farm homogeneous regarding crop-
ping and soil type);

(h) application of nitrogen and phosphorus with chemical and

other fertilisers over each field.

Plans shall be revised no later than seven days following any
changes in agricultural practices to ensure consistency between
plans and actual agricultural practices.

4.
Fertilisation accounts shall be prepared by each farm. They
shall be submitted to the competent authority for each calendar
year.

5.
Each farm benefiting from an individual derogation shall
accept that the application referred to in paragraph 1 of article
4, the fertilisation plan and the fertilisation accounts can be
subject to control.

Nitrogen and phosphorous analysis

6.
shall be
performed for each farm which benefits from an individual
derogation at least once every four years for each homogeneous
area of the farm, with regard to crop rotation and soil character-
istics. At least one analysis every 5 hectares of farmland shall be
required.

in soil

7.
The farm phosphate surplus during the previous year,
calculated according to the procedure established in Sections 5
and 6 of the Fertiliser Ordinance of 10 January 2006, shall not
exceed the 20 kg per hectare.

8. Manure shall not be spread in the autumn before grass
cultivation.

Low emission application techniques shall be used in

9.
manure spreading.

Article 6

Land management

Farmers benefiting from an individual derogation for intensive
grassland fields shall carry out the following measures:

(a) Temporary grassland shall be ploughed in spring.

(b) Intensive grassland shall not include leguminous or other
plants fixing atmospheric nitrogen. This will however not
apply to clover in grassland with less than 50 % clover.

Germany shall ensure that use of
the derogation shall be
without prejudice to the measures needed to comply with other
Community environmental legislation.

Article 8

Monitoring

1. Maps showing the percentage of farms, percentage of live-
stock and percentage of agricultural land covered by individual
derogation in each Community, shall be drawn by the compe-
tent authority and shall be updated every year. Those maps shall
be submitted to the Commission annually and for the first time
by the end of 2007.

2.
The impact of derogation on water quality shall be
assessed by means of a monitoring network for sampling of
surface and shallow groundwater. To this aim, the groundwater
monitoring network established for the purpose of monitoring
agricultural pollution and the surface water monitoring network
shall be reinforced in the districts with 3 % or more of farms
benefiting from individual derogations over the total number of
farms.

3.
Survey and nutrient analysis shall provide data on local
land use, crop rotations and agricultural practices on farms
benefiting from individual derogations. Those data can be used
for model-based calculations of
the magnitude of nitrate
leaching and phosphorus losses from intensive grassland fields
where up to 230 kg nitrogen per hectare per year from livestock
manure is applied.

4. Monitoring sites shall be established in water catchments
with prevalent agricultural activities to provide data on nitrogen
concentration in soil water and corresponding losses through
the root zone into groundwater as well as on nitrogen losses by
surface and subsurface runoff, both under derogation and non
derogation conditions.

Article 9

Controls

1.
The competent national authority shall carry out adminis-
trative controls in respect of all farms benefiting from an indivi-
dual derogation for the assessment of compliance with the
maximum amount of 230 kg nitrogen per hectare per year
from livestock manure, with nitrogen and phosphorus
fertilisation provisions and conditions on land use.

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A programme of

field inspections shall be established
2.
based on risk analysis, results of controls of the previous years
and results of general random controls of
legislation imple-
menting Directive 91/676/EEC. Field inspections shall address at
least 3 % of farms benefiting from an individual derogation in
respect to the conditions set out in Article 5 and 6.

Article 10

Reporting

1.
The competent authority shall submit the results of the
monitoring every year to the Commission, with a concise report
on water quality evolution and evaluation practice. The report
shall provide information on how the evaluation of the imple-
mentation of the derogation conditions is carried on through
controls at
farm level and include information on non
compliant farms based on results of administrative and field
inspections. The first report shall be transmitted by June 2008
and subsequently every year by June.

2.
The results thus obtained will be taken into consideration
by the Commission with regard to an eventual new request for
derogation.

Article 11

Application

This Decision shall apply in the context of the German Action
programme (Fertiliser Ordinance of 10 January 2006 as
amended by the Fertiliser Ordinance of 27 September 2006) for
the period of application from 2006 to 2009.

Article 12

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 22 December 2006.

For the Commission

Stavros DIMAS

Member of the Commission