Introductory text

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

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^f1, and in particular the third subparagraph of paragraph 2 of Annex III thereto,

Whereas:

Directive 91/676/EEC aims to protect waters against pollution caused by nitrates from agricultural sources by, among other measures, limiting the application of livestock manure to land. If a Member State intends to allow an amount of manure per hectare that is different from the amount specified in the first sentence of the second subparagraph of paragraph 2 of Annex III to Directive 91/676/EEC, that amount is to be fixed so as not to prejudice the achievement of the objectives of the Directive and is to be justified on the basis of objective criteria, such as long growing seasons and crops with high nitrogen uptake. The justification is to be examined by the Commission.

On 8 December 2005, the Commission adopted Decision 2005/880/EC^f2 granting a derogation requested by the Netherlands pursuant to Directive 91/676/EEC for the purpose of allowing the application of grazing livestock manure up to a limit of 250 kg nitrogen per hectare per year on farms with at least 70 % grassland.

On 5 February 2010, the Commission adopted Decision 2010/65/EU^f3, amending Decision 2005/880/EC and extending the derogation until 31 December 2013.

On 16 May 2014, the Commission adopted Implementing Decision 2014/291/EU^f4. In that Decision the Netherlands was granted a derogation pursuant to Directive 91/676/EEC to allow the application of grazing livestock manure on farms with at least 80 % grassland up to a limit of 230 kg nitrogen per hectare per year for farms on southern and central sandy soils and on loess soils and up to a limit of 250 kg nitrogen per hectare per year for farms on other soils. The derogation concerned 19 564 farms in 2016, corresponding to 47 % of the total net agricultural area in the Netherlands.

On 31 January 2018, the Netherlands submitted to the Commission a request, under the third subparagraph of paragraph 2 of Annex III to Directive 91/676/EEC, for a renewal of the derogation for the period 2018 to 2021.

The Netherlands applies, in conformity with Article 3(5) of Directive 91/676/EEC, an action programme throughout its whole territory.

The Dutch legislation implementing Directive 91/676/EEC includes application standards both for nitrogen and phosphate.

According to the data provided by the Dutch authorities, in the period 2012 to 2015, the number of cattle and pigs in the Netherlands increased by 2,3 % and 0,8 % respectively as compared to the period 2008 to 2011. The number of poultry in the Netherlands increased by 2,4 % for the same period. Since 2006, Dutch legislation^f5 sets limitations on the number of pigs and poultry. Moreover, since January 2015, Dutch legislation^f6 requires that an appropriate share of surplus manure from the dairy sector is processed. In addition, a system of phosphate production rights for dairy cattle has just been introduced^f7 in the Netherlands. All of those measures aim at preventing pollution of water bodies.

In the period 2012 to 2015, nitrogen use from livestock manure in the Netherlands was 416 000 tonnes, which was a decrease of 4,4 % as compared to the period 2008 to 2011^f8. The use of chemical N fertiliser in the Netherlands increased by approximately 4,3 % in the period 2012 to 2015 compared to the period 2008-2011^f9.

According to the scientific underpinning provided by the Dutch authorities, the climate in the Netherlands, characterised by an annual rainfall evenly distributed throughout the year and a relatively narrow annual temperature range, promotes a long grass-growing season of 250 days per year.

Moreover, the information provided by the Dutch authorities in the context of the previous derogation granted by Implementing Decision 2014/291/EU indicates that derogation has not led to a deterioration of the Dutch water bodies. For instance, the nitrate concentration in the water leaving the root zone on monitored holdings covered by authorisations has decreased since 2006 and was in average in 2015 and 2016 below 50 mg/l.

The data reported by the Netherlands under Article 10 of Directive 91/676/EEC shows that for the period 2012 to 2015, approximately 88 % of the groundwater monitoring stations in the Netherlands had mean nitrate concentrations below 50 mg/l and that 79 % of those monitoring stations had mean nitrate concentrations below 25 mg/l. The data also shows that for the period 2012 to 2015, 99 % of the surface water monitoring stations in the Netherlands had mean nitrate concentrations below 50 mg/l and that 96 % of those monitoring stations had mean nitrate concentrations below 25 mg/l. The data indicates a stable or decreasing trend in nitrate concentration in groundwater and surface water compared to the period 2008 to 2011. Nevertheless, in the reporting period 2012 to 2015, 60 % of the freshwaters were eutrophic, 13 % potentially eutrophic and 27 % not eutrophic.

After examination of the request from the Netherlands in accordance with the third subparagraph of paragraph 2 of Annex III to Directive 91/676/EEC and in the light of the 6th Dutch Action Programme and the experience gained from the derogation provided for in Implementing Decision 2014/291/EU, the Commission considers that the amount of grazing livestock manure proposed by the Netherlands, corresponding to 230 kg nitrogen per hectare per year on farms with at least 80 % grassland on southern and central sandy soils and on loess soils and 250 kg nitrogen per hectare per year on farms with at least 80 % grassland on other soils, will not prejudice the achievement of the objectives of Directive 91/676/EEC, subject to certain strict conditions being met by the Netherlands, and is justified on the basis of objective criteria.

The Netherlands should ensure that the pressure on water bodies as a consequence of growing livestock numbers and the associated manure production does not increase. To that end the Netherlands should ensure that total manure production, both in terms of nitrogen and phosphorus, does not increase beyond the level of the year 2002. New legislation implementing the 6th Dutch Action Programme should therefore provide for a binding manure production ceiling which is not to be exceeded and which can be invoked against individual farmers where needed.

The authorisations to individual farmers is subject to certain conditions that are aimed at ensuring fertilisation at farm level based on crop needs and reduction and prevention of nitrogen and phosphorus losses to water. Those conditions should therefore include requirements that a fertiliser plan has been established at farm level, that fertiliser practices are recorded through fertiliser accounts, that periodic soil analysis are carried out, that green cover is applied in winter after maize, that specific provisions on grass ploughing are complied with, that no manure is applied before grass ploughing, that the fertilisation takes into account the contribution of leguminous crops, and that no phosphate from chemical fertilisers is applied to the land.

Over the recent years the implementation by the Netherlands of their manure management policy, including compliance with Implementing Decision 2014/291/EU, has suffered some setbacks leading to a situation where there are concerns over possible fraud. This exceptional situation requires the Netherlands to step up its efforts in preventing fraud in the implementation of its manure policy. While the 6th Action Programme already provides for measures aimed at reinforcing the control and inspections with a view to improving overall compliance with the rules of the Dutch manure policy, additional efforts need to be deployed to foster effective implementation and full compliance. Those efforts should include the establishment of an enhanced enforcement strategy, taking into account also the provisions of Directive 2008/99/EC of the European Parliament and of the Council^f10. The strategy should be based on an independent assessment of compliance with the rules on Dutch manure policy and contain specific measures aiming at further strengthening inspections and controls and a clear methodology to establish sufficiently dissuasive penalties and sanctions. It is therefore justified to limit the duration of the derogation so that it expires on 31 December 2019 in order to enable the Netherlands to fully implement the enhanced enforcement strategy. The Netherlands may submit, in accordance with the second subparagraph of paragraph 2 of Annex III to Directive 91/676/EEC, a request for a new derogation for a subsequent period.

Directive 2000/60/EC of the European Parliament and of the Council^f11 provides for a comprehensive, cross-border approach to water protection organised around river basin districts (RBDs), with the objective of achieving good status for European bodies of water. Reducing nutrients is an integral part of that objective. Granting of a derogation under this Decision is without prejudice to the provisions of Directive 2000/60/EC and does not exclude that additional measures may be needed to fulfil obligations derived from that Directive.

Directive 2007/2/EC of the European Parliament and of the Council^f12 lays down general rules aimed at the establishment of the Infrastructure for Spatial Information in the Union for the purposes of environmental policies of the Union and policies or activities of the Union which may have an impact on the environment. Where applicable, the spatial information collected in the context of this Decision should be in line with the provisions set out in that Directive. In order to reduce the administrative burden and enhance data coherence, the Netherlands, when collecting the necessary data under this Decision should, where appropriate, make use of the information generated under the Integrated Administration and Control System established pursuant to Chapter II of Title V of Regulation (EU) No 1306/2013 of the European Parliament and of the Council^f13.

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: