2008/64/EC: Commission Decision of 21 December 2007 granting a derogation requested by Belgium with regard to the region of Flanders 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(2007) 6654)
Date: 2007-12-21
Institutions: European Commission
Subjects: Flanders (Belgium), chemical salt, derogation from EU law, environmental protection, organic fertiliser, pollution from agricultural sources, water pollution

L 16/28

EN

Official Journal of the European Union

19.1.2008

COMMISSION DECISION

of 21 December 2007

granting a derogation requested by Belgium with regard to the region of Flanders 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(2007) 6654)

(Only the Dutch version is authentic)

(2008/64/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

The Manure Decree applies through the whole territory
of Flanders.

Having regard to the Treaty
Community,

establishing the European

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,

(6)

legislation implementing Directive 91/676/EEC
The
includes limits for the application of both nitrogen and
phosphorus. Phosphorus application with chemical ferti-
is prohibited unless soil analysis is
lisers, as a rule,
performed and a permit
is issued by the competent
authority.

Whereas:

(1)

(2)

(3)

(4)

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
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.

to prejudice the achievement of

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

The requested derogation concerns
the intention of
Belgium to allow the application in Flanders, in specific
holdings, of up to 250 kg nitrogen per hectare per year
from livestock manure
cultivated with
grassland and maize undersown with grassland and up
to 200 kg nitrogen per hectare per year from livestock
manure in parcels cultivated with winter wheat followed
by a catch crop and with beet.

in parcels

The legislation implementing Directive 91/676/EEC for
the region of Flanders, the ‘Decree for the protection of
water against pollution by nitrates from agricultural
sources’
(Manure Decree) has been adopted on 22
December 2006 (2) and applies equally to the requested
derogation.

(1) OJ L 375, 31.12.1991, p. 1. Directive amended by Regulation
(EC) No 1882/2003 of the European Parliament and of the Council
(OJ L 284, 31.10.2003, p. 1).

(2) Belgisch Staatsblad of 29.12.2006 p. 76368.

(7) Water quality data submitted show a downwards trend in
concentration and in
including phosphorus,

average groundwater nitrates
average nutrient concentration,
in surface waters.

(8)

(9)

(10)

from livestock manure decreased,

The application of nitrogen from livestock manure
decreased, in the period 1997-2005, from 162 million
kg to 122 million kg and the application of phosphorus
(P2O5)
in the same
period, from 72 million kg to 50 million kg, both as
effect of decrease in livestock numbers,
low nutrient
feeding and manure processing. The use of nitrogen
and phosphorus
fertilisers decreased
respectively by 44 % and by 82 % since 1991 and it is
now corresponding to 57 kg per hectare nitrogen and
6 kg per hectare phosphate.

from chemical

The supporting documents presented in the notification
show that the proposed amount of respectively 250 kg
and 200 kg per hectare per year nitrogen from livestock
manure is justified on the basis of objective criteria such
as long growing seasons and crops with high nitrogen
uptake.

examination of
the proposed amounts of

request
the
The Commission after
considers that
respectively
250 kg and 200 kg per hectare per year of nitrogen
from livestock manure, will
the
achievement of the objectives of Directive 91/676/EEC,
subject to certain strict conditions being met.

prejudice

not

19.1.2008

EN

Official Journal of the European Union

L 16/29

(11)

In order to avoid that the application of the requested
derogation leads to intensification of livestock rearing,
the competent authorities should ensure the limitation
of the number of livestock which can be kept in each
farm (nutrient emission rights) in the region of Flanders
according to the provisions set out in the Manure Decree
of 22 December 2006.

(12)

This Decision should be applicable in connection with
the second action programme in force for the region of
Flanders for the period 2007 to 2010 (Manure Decree of
22 December 2006).

(13)

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

HAS ADOPTED THIS DECISION:

Article 1

The derogation requested by Belgium by letter of 5 October
2007, with regard to the region of Flanders, 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.

Article 2

Definitions

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

(a)

‘farms’ means holdings with or without livestock rearing;

(b) ‘parcel’ means an individual field or a group of fields, homo-
type and fertilisation

regarding cropping,

soil

geneous
practices;

(c)

‘grassland’ means permanent or
(generally temporary lies less than four years);

temporary

grassland

(d) ‘crops with high nitrogen demand and long growing season’
means grassland, maize undersown, before or after harvest,
with grass mowed and removed from the field acting as a
catch crop, winter wheat followed by a catch crop, sugar or
fodder beets;

(e)

‘grazing livestock’ means cattle (with the exclusion of veal
calves), sheep, goats and horses;

(f)

treatment’ means

‘manure
the process of physical-
mechanical separation of pig manure into two fractions, a
solid and a clarified fraction, performed in order to improve
land application and enhance nitrogen and phosphorus
recovery;

(g)

‘soil profile’ means the soil layer below ground level to a
depth of 0,90 m, unless the average highest groundwater
level is shallower; in this latter case it shall be to a depth of
the average highest groundwater level.

Article 3

Scope

This Decision applies on an individual basis to specified parcels
of a farm, cultivated with crops with high nitrogen demand and
long growing season and subject to the conditions set out in
Articles 4, 5, 6 and 7.

Article 4

Annual authorisation and commitment

Farmers who want

1.
to benefit
submit an application to the competent authorities annually.

from a derogation shall

Together with the annual application referred to in
the

2.
paragraph 1 they shall undertake in writing to fulfil
conditions provided for in Articles 5, 6 and 7.

The competent authorities shall ensure that all the appli-
3.
cations for derogation are subject
to administrative control.
Where the control carried out by the competent authorities of
the applications referred to in paragraph 1 demonstrates that
the conditions provided for in Articles 5, 6 and 7 are not
fulfilled, the applicant shall be informed thereof and the appli-
cation shall be considered to be refused.

Article 5

Manure treatment

1. Manure treatment shall achieve, at least, an efficiency of
removal of suspended solid, total nitrogen and total phosphorus
in the solid fraction respectively of 80 %, 35 % and 70 %. Ef-
in the solid fraction shall be evaluated
ficiency of removal
through mass balance.

reducing odours and other emissions,

The solid fraction resulting from manure treatment shall
2.
be delivered to authorised installations for recycling with the
aim of
improving
agronomic and hygienic properties,
facilitating handling and
enhancing recovery of nitrogen and phosphate. The recycled
product shall not be applied to agricultural
land located in
the region of Flanders except for parks, greeneries and private
gardens.

3.
The clarified fraction resulting from manure treatment
shall be removed to storage. To qualify as treated manure, it
shall have a minimum nitrogen to phosphate ratio (N/P2O5) of
3,3 and a minimum nitrogen concentration of 3 g per litre.

L 16/30

EN

Official Journal of the European Union

19.1.2008

Farmers who carry out manure treatment shall submit
4.
each year to the competent authorities the data related to the
amount of manure sent
the amount and the
destination of the solid fraction and of the treated manure
and their contents of nitrogen and phosphorus.

to treatment,

The competent authorities shall establish and submit to
5.
the Commission the methodologies to assess the composition
of treated manure, the variations in composition and treatment
efficiency for each farm benefiting from individual derogation.

The fertilisation plan shall include the following:

(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 and phosphorus produced

in the farm;

(c)

the description of manure treatment and expected charac-
teristics of treated manure;

6.
Ammonia and other emissions from manure treatment
shall be collected and treated so as to reduce environmental
impact and nuisance.

(d) the amount, type and characteristics of manure delivered

outside the farm or in the farm;

Article 6

Application of manure and other fertilisers

1.
The amount of grazing livestock manure and treated
including by the animals
manure applied to land each year,
themselves shall not exceed the amount of manure set out in
paragraph 2, subject to the conditions laid down in paragraphs
3 to 11.

2.
The amount of grazing livestock manure and treated
manure shall not exceed 250 kg of nitrogen per hectare per
year on parcels cultivated with grassland and maize undersown
with grassland and 200 kg of nitrogen per hectare per year on
parcels cultivated with winter wheat followed by a catch crop
and with beets.

the considered crop and take into account

The total nitrogen input shall comply with the nutrient
3.
demand of
the
supply from the soil and the increased manure nitrogen avail-
ability due to treatment. It shall not exceed, in any case, 350 kg
per hectare per year on parcels cultivated with grassland,
220 kg per hectare per year on parcels cultivated with sugar
beet, 275 kg per hectare per year on parcels cultivated with
winter wheat followed by a catch crop, fodder beet and maize
undersown with grass, with the exception, in this latter case, of
parcels on sandy soils, for which nitrogen application shall not
exceed 260 kg per hectare per year.

4.
A fertilisation plan shall be kept for each farm, for its
whole acreage, describing the crop rotation and planned appli-
cation of manure and nitrogen and phosphate fertilisers. It shall
be available in the farm each calendar year by 15 February at
the latest.

(e) a calculation of manure nitrogen and phosphorus to be

applied in the farm;

(f)

the crop rotation and acreage of parcels with crops with
high nitrogen demand and long growing season and parcels
with other crops, including a sketch map indicating location
of individual parcels;

(g) the foreseeable nitrogen and phosphorus crop requirements

for each parcel;

(h) nitrogen and phosphorus application from manure over

each parcel;

(i) application of nitrogen and phosphorus with chemical and

other fertilisers over each parcel.

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

5.
Fertilisation accounts shall be prepared by each farm. They
shall be submitted to the competent authority for each calendar
year.

Each farm benefiting from an individual derogation shall
6.
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

7.
shall be
performed for each farm at least once every four years for
each parcel. At least one analysis every 5 hectares of farmland
shall be required.

in soil

19.1.2008

EN

Official Journal of the European Union

L 16/31

Nitrate concentration in soil profile shall be measured
8.
every year in autumn on at least 25 % of the farms benefiting
from derogation. Soil sampling and analysis shall cover at least
5 % of the parcels cultivated with crops with high nitrogen
the
demand and long growing season and at
other parcels. At
representing three
least
samples
different soil
layers shall be required every 2 hectares of
farmland.

least 1 % of

three

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

At least two thirds of the amount of nitrogen from
from grazing

10.
manure,
livestock, shall be applied before 15 May each year.

excluding nitrogen from manure

The competent authorities shall ensure that derogations
2.
granted for the application of treated manure are compatible
with the capacity of authorized installations for processing of
the solid fraction.

Article 9

Measures on manure production and transport

1.
the
The competent authorities shall ensure respect of
limitation of the number of livestock which can be kept in
each farm (nutrient emission rights) in the region of Flanders
according to the provisions set out in the Manure Decree of 22
December 2006.

Nitrogen and phosphorus excretion factors for cattle
11.
established in paragraph 1 of Article 27 of
the Flemish
Manure Decree of 22 December 2006 shall apply from the
first year of validity of this Decision.

The competent authorities

2.
shall ensure that manure
transport from accredited transporters classified in categories
A 2ob, A 5o, A 6o, B and C according to articles 4 and 5 of
the Flemish Ministerial Decree of 19 July 2007 (1) is recorded
through geographic positioning systems.

Article 7

Land management

Farmers benefiting from an individual derogation shall carry out
the following measures:

The competent authorities

shall ensure that manure
3.
composition with regard to nitrogen and phosphorus concen-
tration is assessed before each transport. Manure samples shall
be analysed by recognised laboratories and results of
the
analysis shall be communicated to the competent authorities
and to the receiving farmer.

(a) grassland shall be ploughed in spring;

(b) grassland shall not

include leguminous or other plants

fixing atmospheric nitrogen;

(c) ploughed grass shall be followed immediately by a crop
with high nitrogen demand and fertilisers shall not be
applied in the year of ploughing of permanent grassland;

(d) catch crops shall be seeded immediately after harvest of

winter wheat and no later than 10 September;

(e) catch crops shall not be ploughed before 15 February in
order to ensure permanent vegetal cover of the arable area
for recovering subsoil autumn losses of nitrates and limit
winter losses.

Article 8

Other measures

1.
This derogation shall be applied without prejudice to the
measures needed to comply with other Community environ-
mental legislation.

Article 10

Monitoring

livestock and percentage of agricultural

1. Maps showing the percentage of farms, number of parcels,
percentage of
land
covered by individual derogation for each Municipality shall
be drawn by the competent authority and shall be updated
every year. Those maps shall be submitted to the Commission
annually and for the first time by February 2008.

A monitoring network for

2.
surface and
shallow groundwater shall be established and maintained to
assess the impact of the derogation on water quality.

sampling of

Survey and nutrient analysis shall provide data on local
3.
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 parcels where up to
200 kg nitrogen per hectare per year and 250 kg nitrogen
per hectare per year from manure from grazing livestock and
treated manure are applied according to Article 6(2).

(1) Belgisch Staatsblad of 31.8.2007 p. 45564.

L 16/32

EN

Official Journal of the European Union

19.1.2008

4. Monitoring sites, corresponding to at least 150 farms,
shall be established in order to provide data on nitrogen and
phosphorus concentration in soil water, on mineral nitrogen in
soil profile and corresponding nitrogen and phosphorus losses
through the root zone into groundwater, as well as on nitrogen
and phosphorus losses by surface and subsurface run-off, both
under derogation and non derogation conditions. The moni-
toring sites shall be representative of each soil
type (clay,
loamy,
fertilisation practices and
soils),
crops. The composition of the monitoring network shall not
be modified during the period of applicability of this decision.

sandy and loessial

A reinforced monitoring shall be conducted in agricultural

5.
catchments on sandy soils.

years and results of general random controls of application of
legislation implementing Directive 91/676/EEC. The
field
inspections shall cover at least 5 % of the farms benefiting
from an individual derogation in respect to the conditions set
out in Articles 5, 6 and 7.

Article 12

Reporting

1.
The competent authority shall submit the results of the
monitoring every year to the Commission, with a report on
water quality evolution, evaluation of nitrate residue in soil
profile in autumn for the different crops in farms benefiting
from a derogation and evaluation practice.
illustrate
how the evaluation of the implementation of the derogation
conditions is carried on through controls at farm and parcel
level and include information on non compliant farms based on
the results of administrative and field inspections.

It shall

Article 11

Controls

1.
The competent authorities shall carry out administrative
controls in respect of all farms benefiting from an individual
derogation for the assessment of compliance with the maximum
amount of nitrogen per hectare per year from livestock manure,
with nitrogen and phosphorus maximum fertilisation rates,
conditions on land use and on manure treatment and transport.

The report shall also include information on manure
2.
treatment,
including further processing and utilisation of the
solid fractions, and provide detailed data on characteristic of
treatments systems, their efficiency and composition of treated
manure.

2.
The competent authorities shall ensure the control of the
results of analysis with regards to nitrate concentration in soil
profile in the autumn. Where controls show that the threshold
of 90 kg nitrogen per hectare or the lower values established by
the Flemish Government according to paragraph 1 of Article 14
the Flemish Manure Decree of 22 December 2006 is
of
exceeded in a specific parcel,
the farmer shall be informed
and the parcel excluded from derogation in the following year.

from individual derogation,

3.
In addition to the data referred to in paragraphs 1 and 2
the report shall include data related to fertilisation in all farms
which benefit
trends in manure
production in the region of Flanders, as far as nitrogen and
phosphorus are concerned, results of administrative and field
controls on manure transport and results of controls on
nutrient balances at farm level for calculation of excretion coef-
ficients for pig and poultry.

authorities

competent

ensure on-the-spot
shall
3.
The
least 1 % of manure transport operations,
controls of at
based on risk assessment
administrative
and results of
controls referred to in paragraph 1. Controls shall include, at
least, verification of the fulfilment of the obligations on accred-
itation, assessment of accompanying documents, verification of
manure origin and destination and sampling of
transported
manure. Manure sampling can be carried out, where appropriate
using automatic manure samplers installed on the vehicles,
during loading operations. Manure samples shall be analysed
by laboratories recognised by the competent authorities and
results of the analysis shall be communicated to the delivering
and to the receiving farmer.

A programme of

4.
based on risk analysis, results of controls of

field inspections shall be established
the previous

The first report shall be transmitted by December 2008

4.
and subsequently every year by July.

5.
The results thus obtained will be taken into consideration
by the Commission with regard to an eventual new request for
a derogation.

Article 13

Application

the action
This Decision shall apply in the context of
programme 2007 to 2010 for
the Region of Flanders
(Manure Decree of 22 December 2006) and shall expire on
31 December 2010.

19.1.2008

EN

Official Journal of the European Union

L 16/33

This Decision is addressed to the Kingdom of Belgium.

Article 14

Done at Brussels, 21 December 2007.

For the Commission

Stavros DIMAS
Member of the Commission