Lawyer criticizes phosphate law in fire letter

The implementation of the Phosphate Act is encountering major problems, the Association of Agricultural Lawyers said. In the letter they sent to Minister Carola Schouten (Agriculture, Nature and Food Quality) on Monday 19 November, they state that 'proper administration of justice' is at stake.

According to the collective, the problems have been exacerbated by the fact that the legislation was introduced by force (and under pressure from the European Commission) in the past year. As a result, the implementation is not running smoothly; both dairy farmers, the legal profession, if the ministry runs into this.

According to the lawyers, the definitions in the law are not well thought out; an example is the unclear delineation of the bottlenecks. It is also striking that beef farmers phosphate rights were granted, which in retrospect should not have happened.

Delimitation of pinch points
The problems are particularly apparent on dairy farms that have invested and scaled up before the reference date of 2 July 2015. These companies have been allocated too few phosphate rights. Although the Kalden Commission has acknowledged that this category is a bottleneck, it is not recognized as such. This is because the category is not well defined.

According to the collective of lawyers, the fact that the ministry has followed this advice is remarkable, because the ministry now has a lot of experience in defining hardship schemes in other agricultural legislation.

Individual test
The Trade and Industry Appeals Tribunal (CBb) has determined that the Netherlands Enterprise Agency (RVO.nl) must check whether the companies that have registered as bottlenecks actually are. In the meantime, 8 predecessor cases have sent data, but the process stalls there. When the companies insist on a decision, they are rejected by default. Then there is no other option than to appeal to the CBb, but the queues are long there.

This while it is imperative for these companies, as they must have clarity before the end of this year. If the dairy farmer produces more phosphate than the allocated phosphate rights, they are in violation of the Fertilizers Act. They risk an economic crime. In such situations, meeting a preliminary injunction sometimes a solution, but this remedy has recently been taken away from the CBb.

Provide clarity
The lawyers realize that the minister has no say in the course of affairs within the CBb. They do ask Schouten to ensure that the assessment of RVO.nl also considers individual circumstances. They also call on RVO.nl to make haste in providing clarity, so that companies are not unnecessarily in uncertainty.

Wouter Job

Wouter Baan is editor-in-chief of Boerenbusiness. He also focuses on dairy, pig and meat markets. He also follows (business) developments within agribusiness and interviews CEOs and policymakers.

w.baan@boerenbusiness. Nl

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