Analysis Phosphate rights
Repair with big snags
When are phosphate rights needed to keep calves, and when not? On July 18, an answer came to that question. This means that the phosphate rights system is once again being tinkered with. There was also an exemption for suckler cows and the regulation for pressure cases was expanded. However, are these positive repairs or are the snags bigger?
"It is a solution with the foot on the brake", says Peter Goumans, lawyer at Hekkelman Advocaten. He is then talking about the General Administrative Order (Order in Council), with which the bottleneck scheme has been expanded. "Even starters who did not supply milk, but could have had young stock, can be regarded as a bottleneck. However, why can't those who did not yet have an animal stock? Real starters, who were still busy refurbishing a barn, do not come in qualify."
Goumans calls this an extension based on chance. The argument for as few bottlenecks as possible is the excessive issuance of allowances. However, that is not the case with the lawyer. "Before 2015 (on the basis of permits issued) the growth was already evident. And when that growth happened, it was the farmer's fault. How should he have known this?" Goumans is also critical of the time needed for the introduction of the AMvB. "There is still a recommendation from the Council of State and that takes time."
Repair of the law
Another 'repair' took place via the Policy rule on phosphate rights for young stock† This explains the concept of young stock, as described in the Fertilizers Act. This makes it clear for which young stock, and for which young stock, rights are not required. A mistake that, according to Goumans, was known much earlier.
Andreas van der Vis, lawyer at Countus, states that it will be quite a task for the Netherlands Enterprise Agency (RVO.nl). "It has to be rearranged. And that is (obviously) a lot of work. I do expect some problems with this. For example, in 2018, livestock farmers have to prove that young stock was or was not kept for the milk sector in 2015." He explains this by means of an example: "Suppose a dairy farmer had young stock intended for dairy farming in 2015, and 1 animal was subsequently removed for health reasons. Now the question is: does this still pose a risk?"
The lawyer also states that from 2018 there must be a balanced administration. "It is quite possible that the purpose of the animal changes during rearing from dairy cattle to beef cattle or vice versa. The moment the goal changes, this can have major consequences for the question of whether phosphate rights are needed. A farmer has to figure this out. demonstrate his records."
The difference between young stock for beef farming and dairy farming is having a calf. Young stock for meat never gets one. If it does, then permissions are needed. "However, how are you going to ensure that young stock does not end up in dairy farming? Does this have to be done through a contract or does the owner have to follow the animal?", Goumans wonders. The question is where does the farmer's responsibility end?
The law is decisive
Goumans points out that the law is ultimately decisive. There are still cases pending in court and that decision is decisive. "The problem was that the phosphate rights bill was not conclusive. It resulted in uncertainty and noise." The Policy Rule is an explanation, but not an amendment to the law.
There are also beef farmers who sold rights before there was any prospect of an exemption† How is this handled? "A new decision must be made and the question is whether that is possible," says Goumans. "There is legal protection and the question is whether it is correct." Van der Vis states that this is an official adjustment, whereby suckler cow holders can regain the rights before they decide to participate in the exemption.
Van der Vis cannot say whether the rights will also disappear with the purchasing party. "Because livestock farmers often sell the rights through an intermediary, they see the name of the trading party when transferring." As a result, it is not always possible to estimate whether the rights have been formed on livestock that are now (via the policy rule) no longer covered by the phosphate rights system." However, for the most part it is good news, because it has an interest in "That's why they want to stay away from the phosphate rights," says Goumans, who estimates that the system is not very susceptible to fraud.
Suckler cow exemption too late?
The exemption for suckler cow keepers has even more snags. For example, the scheme is not yet final and will not come until late in the year. "It must be regulated by law. Now it is done through an exemption, through Article 38," says Goumans.
Another point is the requirements. "A suckler cow farmer who makes use of the exemption is responsible for ensuring that female cattle do not end up in the dairy sector. This applies to the Netherlands, but also abroad," says Van der Vis. Van der Vis states that this must be laid down contractually, possibly via a perpetual clause.
At the same time, appeal procedures are still ongoing where rights have been refused. "These entrepreneurs need rights to be able to switch, for example, from rearing young stock for beef cattle farming to that of dairy farming," says Goumans. "For example, they are entrepreneurs who thought it would be a good idea to focus on raising beef cattle, but can't go back now."
Flexibility is declining
Dairy farming is further shielded from the other sectors as a result of the amendments to the law. While the derogation for a broader nitrogen standard hinders the interaction between the arable farming sector and the dairy sector, the phosphate rights throw a spanner in the works for the interaction between the dairy sector and the beef cattle sector. This makes Dutch dairy farming even more unique in the European landscape.
Van der Vis: "It can happen that a livestock farmer has a certain destination for an animal. Over time, the destination changes because an animal does not become pregnant, for example. If the destination changes, this can also ensure that there is or is no phosphate rights are needed. When this happens, it's hard to prove what happened."
Herman van den Pol
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