Instructions for the Hardship Committee

While all the attention is focused on the implementation of the 2017 Phosphate Reduction Plan Regulation (and the House of Representatives debated this with Van Dam), the Senate was more or less cautious about the system of phosphate rights and the land-based growth dairy farming bill. Both statutory regulations were approved by the Senate.

The introduction of these 2 laws is therefore no longer in the way. At least, as far as the Land-Based Growth Dairy Farming Act is concerned. For the introduction of the system of phosphate rights, it is relevant whether the Netherlands qualifies for the derogation of the Nitrates Directive in 2018. So that's not a race yet. It depends, among other things, on the results of the 2017 Phosphate Reduction Plan Regulation.

Pinching: work in progress
On the basis of the Dairy Cattle Phosphate Rights Act, phosphate rights are granted in response to the dairy stock density on 2 July 2015. The Act has a provision for shortages that is extremely limited.

As a result of the Geurts amendment, Article 23, paragraph 9 of the Act includes the option of expanding the provision in order to remove inequities of a certain nature. To this end, categories of companies can be designated by an Order in Council (AMvB), for which the phosphate (rights) reference can be increased.

In the meantime, State Secretary Van Dam has set up an advisory committee (the Compulsory Accidents Committee) to advise on expanding this provision. This is done on the basis of various individual cases. State Secretary Martijn Van Dam has given the Committee three instructions:

1. The consequences of the extension for other dairy farmers must be taken into account.
2. The delineation of the groups of companies that are disproportionately affected should be clear. 
3. The risk of improper use must be limited as much as possible.

In concrete terms, the State Secretary therefore asks for clear criteria to be able to delineate the bottlenecks, a proposal for the degree of compensation and an indication of the total size of the extra allowances to be issued.

He also asks the Commission to indicate for which groups of companies no provision needs to be created. The Committee has been asked to issue its advice by 1 July 2017 at the latest, so that translation in the Order in Council can take place. In the meantime, the Commission has taken up its work energetically. 

How does it go on?
The Order in Council will only come into effect after the Dairy Cattle Phosphate Rights Act has been introduced on 1 January 2018. Only then will dairy farmers be able to register for the expanded emergency provision. RVO assesses whether the various criteria have been met. Objections and appeals are possible against the decisions of the Netherlands Enterprise Agency. This will all take place in 2018. 

We now have to wait for the advice of the Compulsion to Accidents Committee and the response of State Secretary Van Dam.

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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