Can the phosphate reduction plan be guaranteed at all?

In order to remove the objections of the European Commission against the introduction of the system of phosphate rights, a package of measures has been drawn up to illegally reduce phosphate production to the level permitted by the Derogation Directive. I have described that package of measures in my blog: Phosphate rights triple jump.

From 2018 legal guarantee is possible. The phosphate reduction package consists of 3 tracks. The feed track, reduction of the livestock and the phosphate reduction plan of the dairy companies. State Secretary Van Dam outlined the contours of this package in his letter of 18 November 2016 to the House of Representatives. This package of measures is the result of agreements reached within the sector. In order to ensure that the necessary phosphate reduction is actually achieved, the agreements reached will have to be implemented. How is this secured?

the feeding track
The aim is to achieve a phosphate reduction of 1,7 million kilos via the feed track. The animal feed industry has already introduced this measure on 1 January 2017. The gross phosphorus content in the milk compound feed is monitored via monitoring and monthly reporting. The animal feed industry is therefore self-steering.

livestock reduction
State Secretary Van Dam is developing a plan to achieve a reduction in the dairy herd, the main points of which will be announced later this month. This measure aims to achieve a phosphate reduction of 2,5 million kg. It remains to be seen whether the scheme is sufficiently attractive to induce dairy farmers to voluntarily reduce their livestock.

Phosphate reduction plan DairyNL
ZuivelNL aims to achieve a phosphate reduction of 14 million kg with the plan it published on 2016 December 4 (reduction via a milk money scheme or removal of LUs: large livestock units). This part of the package of measures is therefore crucial to achieve the intended goal. But it is precisely for this part of the package of measures that the cooperation of all market parties involved is required. This cooperation will not be obtained from everyone on a voluntary basis.

Declare generally binding
Initially, State Secretary Van Dam had the idea of ​​safeguarding the implementation of the phosphate reduction plan through public assurance and a declaration of the plan generally binding. Because this requires a notification procedure based on the integrated common market organization (IGMO), the State Secretary considered the risk too high that the processing time would be too long. Van Dam therefore waives this method of assurance.

Agriculture Act?
Van Dam now sees an opportunity in the Agriculture Act to include ZuivelNL's phosphate reduction plan in a generally binding regulation through a ministerial regulation. State Secretary Van Dam suggested this idea in a letter to the House of Representatives dated 30 December 2016. The ministerial regulation is now being worked out and should be published by February 2017 at the latest in order to enter into force on 1 March.

On the basis of which articles from the Agriculture Act, State Secretary Van Dam believes he can include the phosphate reduction plan in a ministerial regulation, he does not explain. The State Secretary uses vague terms and suffices with a reference to the Agriculture Act and no more than that. Whether this option is realistic and legally tenable can therefore only be assessed when the ministerial regulation is presented. But there are already question marks.

Later this month, State Secretary Van Dam will present the main features of the scheme for voluntary reduction of the dairy herd, and there may already be a view on the ministerial regulation under the Agriculture Act. As soon as there is news, a new blog will follow.

Peter Goumans

Peter Goumans is a lawyer at Hekkelman. He focuses on the agricultural sector and closely follows developments in this sector. In his blogs he discusses legal issues in the agricultural sector.

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