Fertilisation Act

The Bundestag (Federal Parliament), with the approval of the Bundesrat (Federal Council), has adopted the following Act:

Article 1 Purpose

The purpose of this Act is

1. to ensure the nutrition of agricultural crops,
2. to preserve or improve soil fertility, especially the humus content that is typical of the location and use,
3. to prevent or avert risks to the health of humans and animals and also to the ecosystem, which may arise through the manufacture, placing on the market or application of fertilisers, soil improvers, and plant aids and also growing media or through other fertilisation measures,
4. to transpose or implement legal acts of the European Community that relate to areas covered by this Act, in particular in relation to the circulation or application of fertilisers.

Article 2 Terminology

For the purposes of this Act,

1. Fertilisers are materials, except for carbon dioxide and water, that are intended

   • a) to supply nutrients to agricultural crops, in order to promote their growth, increase their yield or improve their quality, or
   • b) to preserve or improve soil fertility;

2. Farm manure are fertilisers that arise or are produced

   • a. as animal excretions

     • aa) during livestock husbandry for food production, or
     • bb) during other agricultural livestock husbandry, or
   • b. as vegetable matter during crop production or in agriculture,
     include in the form of mixtures or following aerobic or anaerobic treatment;
3. Dung means farm manure from animal excretions, also with litter, in particular straw, sawdust, peat or other vegetable matter, which has been added during livestock husbandry, or mixed with fodder residues, whose dry matter content exceeds 15 percent;
4. Liquid manure means farm manure from animal excretions, also with small quantities of litter or fodder residues or with the addition of water, whose dry matter content does not exceed 15 percent;
5. Slurry means a mixture of urine and flushed out fine constituents of faeces or litter and of water. Slurry may to a minor degree contain feed waste as well as water for cleansing and rain water;

6. Soil improvers are materials without significant nutrient content and micro-organisms, which are intended

   • a) to influence the biological, chemical or physical characteristics of the soil, in order to improve the growth conditions for agricultural crops, or
   • b) to promote symbiotic nitrogen binding;
7. Plant aids are materials without significant nutrient content, which are intended to act biologically or chemically upon plants, in order to achieve a benefit in terms of crop cultivation, production or application, inasmuch as they are not plant restoratives for the purposes of Article 2, point 10 of the Pflanzenschutzgesetz (Plant Protection Act);
8. Growing media are materials that are intended to serve as root space for agricultural crops, and which are introduced into soils, laid on soils or used in soil-independent applications;
9. Manufacture means the extraction, treatment, processing, mixing or other production of materials referred to under point 1 and points 6 to 8;
10. Placing on the market means offering for sale, holding in stock for delivery, keeping for sale and any delivery of materials to others according to sentence 1 of point 1 and points 6 to 8;
11. Commercial means an activity within the context of a business or otherwise for financial gain.

Placing on the market for the purposes of sentence 1 of point 10 is equivalent to bringing within the scope of this Act for the purposes of delivery to others, and delivery between members of associations of persons.

Article 3 Application

(1) Materials according to Article 2, point 1 and points 6 to 8 may only be used inasmuch as they conform to

1. a type approved under a directly effective legal act of the European Community on the circulation or use of fertilisers of an approved type, or
2. 2.the requirements for placing on the market pursuant to an ordinance based on Article 5(2) or (5).

Farm manure that have accrued on the user's own holding, soil improvers, growing media and plant aids, which exclusively consist of or have been manufactured from materials accruing in the user’s own operation, are excepted from sentence 1.

(2) Materials according to Article 2, point 1 and points 6 to 8 may only be applied in accordance with good professional practice. Fertilisation in accordance with good professional practice serves to supply the plants with necessary nutrients and to preserve and promote soil fertility, in particular in order to ensure that the population is supplied with high quality, economically-priced products. Good professional practice includes orientating the type, quantity and timing of use to plant and soil requirements.

(3) The Bundesministerium für Ernährung, Landwirtschaft und Verbraucherschutz (Federal Ministry of Food, Agriculture and Consumer Protection [hereinafter the Federal Ministry]) is hereby authorised to regulate in greater detail the requirements of good professional practice for the purposes of (2), by mutual agreement with the Bundesministerium für Umwelt, Naturschutz und Reaktorsicherheit (Federal Ministry for the Environment, Nature Conservation and Nuclear Safety), by an ordinance with the approval of the Bundesrat. Regulations may also be adopted, in ordinances pursuant to sentence 1, for the protection of waters from contamination, in particular by nitrates, on

1. periods during which the application of certain fertilisers on agricultural land is prohibited,
2. area-related upper limits for the application of nutrients from farm manure of animal origin,
3. the application of fertilisers on steeply inclined agricultural land,
4. the application of fertilisers on water-saturated, flooded, frozen or snow-covered soil,
5. the conditions for the application of fertilisers on agricultural land in the proximity of water courses,
6. the consideration of nutrients that accrue during grazing and also those that are applied using measures other than fertilisation,
7. the records of the application of fertilisers, and also
8. the technical means employed for the application of fertilisers as well as
9. the storage capacity for farm manure.

Regulations intended to ensure soil fertility may also be adopted in ordinances pursuant to sentence 1.

(4) Inasmuch as programmes of action for the purposes of Article 5(1) of Council Directive 91/676/EC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ EU No L 375 p. 1), which was amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ EU No L 384 page 1), are laid down or updated by ordinances pursuant to (3), the public must be involved. The draft of the ordinance and information on the participation procedure must be published in the Bundesanzeiger (Federal Bulletin) or the electronic version of the Bundesanzeiger. Natural persons and legal entities and also other associations, in particular associations in the area of agriculture and the environment, whose interests or whose scope of activities pursuant to their articles of association are affected by the draft (affected public) shall have the opportunity to submit written observations to the Federal Ministry within a time limit of six weeks; the date of expiry of the time limit must be notified at the time of publication pursuant to sentence 2.When it adopts the ordinance, the Federal Ministry shall give due consideration to observations by the affected public that are received in good time. The reference source of the ordinance adopted by the Federal Ministry and announced in the Bundesgesetzblatt must be published in the Bundesanzeiger or in the electronic Bundesanzeiger; summary details of the participation procedure and of the grounds and considerations on which the ruling given is based, must be given.

(5) The Federal Ministry shall be authorised to regulate the application of certain materials pursuant to Article 2, point 1 and points 6 to 8 by an ordinance with the approval of the Bundesrat, and to thereby restrict or prohibit certain applications, inasmuch as this is necessary for the purposes stated in Article 1.

(6) The Federal Ministry shall be authorised to define by ordinance a rule that varies from (1) and (2), for research or testing purposes, inasmuch as there is a justified interest in doing so and no damage to the health of humans and animals or risks to the ecosystem need be feared.

Article 4 Duties to cooperate

The Federal Ministry shall be authorised to adopt regulations by ordinance, with the approval of the Bundesrat, in relation to the recording, reporting, notification or storage duties with respect to the placing on the market, the manufacture, the transport, the acquisition , or the storage of materials pursuant to Article 2, point 1 and points 6 to 8, inasmuch as this is necessary in order to ensure adherence to Article 3 (1) and (2), including in connection with an ordinance pursuant to (3).

Article 5 Placing on the market

(1) Materials pursuant to Article 2, point 1 and points 6 to 8, which are not designated as “EC fertilisers”, may only be placed on the market provided they are capable of

1. significantly promoting the growth of agricultural crops,
2. significantly increasing their yield,
3. significantly improving their quality, or
4. preserving or sustainably improving soil fertility, especially the humus content that is typical of the location and use,

and which, when properly used, do not damage the health of humans and animals or pose a risk to the ecosystem. Sentence 1 shall not apply to materials that are intended for delivery outside the scope of this Act.

(2) The Federal Ministry shall be authorised, inasmuch as is necessary for the purposes stated in Article 1,

1. to determine the more detailed requirements in relation to placing on the market,
2. to prohibit or restrict the placing on the market of certain materials pursuant to Article 2, point 1 and points 6 to 8, or
3. to prescribe that they may only be placed on the market packaged or in packs or containers of a specific nature or with a specific closure,

in each case by an ordinance with the approval of the Bundesrat.

(3) In ordinances pursuant to (2), regulations may in particular be adopted in relation to

1. authorised basic constituent materials,
2. type of manufacture,
3. composition on the basis of main and secondary constituents, in particular on nutrient content, nutrient form and on the type and content of secondary constituents,
4. nutrient availability,
5. effect of secondary constituents,
6. external characteristics, in particular particle size, particle size analysis, screen throughput or colour,
7. other important requirements in relation to the preparation, application or effect of the material.

(4) In addition, it may also be prescribed in ordinances pursuant to (2), for the protection of the health of humans and animals or of the ecosystem

1. that the manufacturer of a material pursuant to Article 2, point 1 and points 6 to 8 must produce records of

   • a) the composition of the material, or
   • b) the basic constituent materials used for manufacture and their origin, and also
2. that the nature and manner of records and their archiving period should be laid down.

Inasmuch as records according to sentence 1 of point 1 are prescribed for a particular material, the manufacturer must present or transmit the records to the competent authority upon request.

(5) The Federal Minister shall be authorised

1. to define a rule that differs from (1), for research or testing purposes, or
2. to define a provisional rule for a maximum period of four years, until the amendment of an ordinance adopted on the basis of (2),

by an ordinance without the approval of the Bundesrat, inasmuch as there is a justified interest in doing so and no damage to the health of humans and animals or risk to the ecosystem need be feared. The Federal Ministry is also authorised to entirely or partially transfer the authority pursuant to sentence 1 to the Bundesanstalt für Landwirtschaft und Ernährung (Federal Agriculture and Food Authority), by an ordinance without the approval of the Bundesrat.

Article 6 EC fertilisers

Fertilisers may only be placed on the market bearing the designation 'EC fertiliser' provided they correspond to a fertiliser type that has been laid down in Annex I of Regulation (EC) N 2003/2003 of the Parliament and the Council of 13 October 2003 relating to fertilisers (OJ EU N L 304 p. 1 ) as last amended.

Article 7 Labelling, packaging

The Federal Ministry shall be authorised, inasmuch as is necessary for the purposes stated in Article 1, to regulate the nature and scope of labelling for materials pursuant to Article 2, point 1 and points 6 to 8, by an ordinance with the approval of the Bundesrat. The following details in particular may be prescribed in ordinances pursuant to sentence 1:

1. trade name,
2. basic constituent materials used for manufacture,
3. type of manufacture,
4. composition on the basis of main and secondary constituents, in particular on nutrient content, nutrient form and on the type and content of secondary constituents as well as their division into processing agents, application agents and foreign materials,
5. nutrient availability,
6. effect of secondary constituents,
7. external characteristics, in particular particle size, particle size analysis, screen throughput or colour,
8. other important requirements in relation to the preparation, application or effect of the material,
9. the weight or volume of the packaging unit,
10. the name or company name of the person responsible for placing on the market,
11. directions in relation to appropriate application, storage or handling.

Article 8 Tolerances

(1) The Federal Ministry shall be authorised to specify acceptable variations (tolerances) in relation to the content ascertained during supervision, from the information that is prescribed by an ordinance pursuant to Article 7 or is admissible under the prescribed labelling, by an ordinance with the approval of the Bundesrat, in order to detect unavoidable uncertainties during manufacture, sampling and analysis.

(2) Systematic use of tolerances may not be made.

Article 9 Sampling methods, analytical procedures

The Federal Ministry shall be authorised to prescribe the use of certain sampling methods and analytical procedures, inasmuch as this is necessary for the proper supervision of the circulation of fertilisers or for the enforcement of legal acts of the institutions of the European Communities in the area of fertiliser law, by an ordinance with the approval of the Bundesrat. In the ordinance pursuant to sentence 1, the description of the sampling methods and analytical procedures may be replaced by a reference to publications in the Official Journal of the European Communities or to publications of generally known sampling methods and analytical procedures, stating the reference source.

Article 10 Scientific advisory board

The Federal Ministry shall be authorised to set up a scientific advisory board to advise it on questions related to fertilisation, by an ordinance without the approval of the Bundesrat. The areas of soil science, plant nutrition, crop cultivation, water protection, toxicology, ecotoxicology and anti-contagion hygiene measures in particular should be represented on the advisory board by scientists working in the areas in question. Details of the composition of the advisory board, the appointment of members and the rules of procedure may be regulated in the ordinance.

Article 11 Sewage sludge compensation fund

(1) The compensation fund set up under Article 4, point 8 of the Act of 27 September 1994 (BGBl. (Bundesgesetzblatt [Federal Law Gazette] I, p. 2705) must indemnify any personal injuries and property damage, and any resultant consequential losses, brought about by the agricultural use of sewage sludge.

(2) Contributions to this fund must be made by all manufacturers of sewage sludges, inasmuch as they are delivering the sewage sludge for agricultural use. When sewage sludge is supplied within the scope of this Act, the contributions must be made by the owner of the sewage sludge, who is supplying or arranging for the supply of the sewage sludge within the scope of this Act, inasmuch as he is delivering the sewage sludge for agricultural use.

(3) The Federal Ministry shall be authorised to adopt regulations, by mutual agreement with the Bundesministerium für Umwelt, Naturschutz und Reaktorsicherheit and the Bundesministerium für Wirtschaft und Technologie (Federal Ministry of Economics and Technology), by an ordinance with the approval of the Bundesrat, in relation to

1. the legal form of the compensation fund,
2. the formation and subsequent configuration of the compensation fund, including the requisite financial resources up to an amount of EUR 125,000,000,
3. the administration of the compensation fund,
4. the amount and definition of the contributions and how they are raised, with consideration to the nature and volume of the sewage sludge delivered, and also an obligation to provide additional funds in the event that the financial resources provided for under point 2 are exhausted,
5. a reasonable deductible for property damage and a reasonable maximum compensation amount, with particular consideration to the size of the damaged area,
6. the transfer to the compensation fund of claims against other liable parties, inasmuch as the compensation fund has satisfied claims, and the assertion of such claims,
7. procedures and powers of the authority responsible for supervision of the compensation fund,
8. the rights and obligations of the liable party with respect to the compensation fund and the authority designated under point 7.

(4)An ordinance pursuant to (3) must be sent to the Bundestag before being sent to the Bundesrat. The ordinance may be amended or rejected by a resolution of the Bundestag. The resolution of the Bundestag shall be sent to the Federal Government. If the Bundestag has not considered the ordinance after three meeting weeks following its receipt, then the unchanged ordinance shall be sent to the Bundesrat. If the ordinance is amended on the basis of the resolution of the Bundestag, then it need not be referred back to the Bundestag.

Article 12 Surveillance

(1) Adherence to the provisions of this Act and of the ordinances adopted on the basis of this Act and of directly effective legal acts of the European Community in the area of fertiliser law shall be subject to surveillance by the competent authorities under national law, subject to (2).

(2) The Bundesanstalt für Landwirtschaft und Ernährung shall be responsible for the administration of the compensation fund pursuant to Article 11(1). It constitutes the competent authority for surveillance of adherence to Article 11 and of the ordinances adopted on the basis of this provision.

(3) Natural persons and legal entities, and associations of persons without legal capacity, must upon request provide the competent authorities with the information that they require in order to undertake the duties assigned to them under this Act or on the basis hereof.

(4) Persons who are commissioned by the competent authority may access the respondent’s land, business premises, operating premises and means of transport during business or operating hours, and may

1. undertake inspections there,
2. take samples without charge against receipts,
3. examine commercial documentation.

The respondent must allow the measures set out in sentence 1, must support the persons commissioned to undertake surveillance during these measures and must make the commercial documents available.

(5) The respondent may refuse to provide information in response to such questions, if answering them would expose him or a related person designed in Article 383(1) points 1 to 3 of the Zivilprozessordnung (Code of Civil Procedure) to the risk of criminal prosecution or of proceedings under the Gesetz über Ordnungswidrigkeiten (Regulatory Offences Act).

(6) The authorities of the Federal Government and the federal states that are competent for the implementation of this Act shall

1. inform each other about the authorities competent for the enforcement of this Act and
2. provide mutual assistance in investigative activities.

The competent authorities may, if this is necessary to meet the requirements of this Act or of ordinances enacted under this Act or prescribed by legal instruments of European Community institutions, transmit data that they have gathered through surveillance to other competent authorities of the same Land, competent authorities of other Länder, competent authorities of the Federal Government or other Member States or to the Commission of the European Communities.

Article 13 Official orders

The competent authority may issue the necessary orders in order to remedy breaches of this Act that are ascertained, and to prevent future breaches of this Act and of the ordinances adopted on the basis of this Act, and against directly effective legal acts of the European Community in the area of fertiliser law. It may in particular

1. order the suspension of fertilisation measures that are in breach of Article 3(1) or (2) or of ordinances adopted on the basis of Article 3(3) or (5),
2. order suspension of the placing on the market of fertiliser batches that are placed on the market contrary to Article 5(1) or Article 6, or contrary to an ordinance adopted on the basis of Article 5(2),
3. temporarily prohibit material pursuant to Article 2, point 1 or points 6 to 8 from being placed on the market or applied, until the result of the analysis of a sample taken is available,
4. undertake surveillance of, or if necessary order, a measure that is intended to prevent a material pursuant to Article 2, point 1 or points 6 to 8, which has not yet arrived at the consumer, from continuing to be placed on the market by other economic operators (withdrawal), or the aim of which is the return of a material pursuant to Article 2, points 1 or points 6 to 8 that has been placed on the market, which has already arrived or may have arrived at the consumer or the user (recall).

Article 14 Fine regulations

(1) Any person who makes systematic use of a prescribed tolerance, contrary to Article 8(2), shall be committing a regulatory offence.

(2) A person shall be committing a regulatory offence if they, either intentionally or negligently

1. contravene an ordinance

   • a) pursuant to Article 3(3) or (5), also in conjunction with Article 15(6),
   • b) pursuant to Article 4, also in conjunction with Article 15(6),
   • c) pursuant to Article 5(2), also in conjunction with Article 15(6),
   • d) pursuant to Article 7, also in conjunction with Article 15(6),
   • e) pursuant to Article11(3), point 7 or 8,
   • or an enforceable order based on such an ordinance, inasmuch as the ordinance refers to this fine regulation in relation to a specific circumstance,
2. places fertilisers on the market contrary to Article 6,
3. fails to provide information, provides incorrect or incomplete information or fails to provide information on time, contrary to Article 12(3),
4. fails to allow a measure, fails to support commissioned persons or fails to provide commercial documentation, contrary to Article 12(4), sentence 2,
5. contravenes an enforceable order pursuant to Article 13, sentence 2, or,
6. contravenes a directly effective regulation in legal acts of the European Communities within the scope of this Act, inasmuch as an ordinance pursuant to Article 15(1) refers to this fine regulation in relation to a specific circumstance.

(3) The regulatory offence may be punishable by a fine of up to fifteen thousand euro, and in the circumstances referred to in (2), point 1 e) of up to two thousand five hundred euro.

(4) Fertilisers and materials to which a regulatory offence pursuant to (2), point 1 c) or point 2 relates, may be confiscated. Article 23 of the Gesetz über Ordnungswidrigkeiten must be applied.

Article 15 Ordinances in specific circumstances

(1) The Federal Ministry shall be authorised, inasmuch as is necessary for enforcement of the legal acts of the European Communities, to designate those circumstances that may be punishable as regulatory offences pursuant to Article 14(2), point 6, by an ordinance without the approval of the Bundesrat.

(2) The Federal Ministry shall be authorised, in this Act or in the ordinances adopted on the basis of this Act, by an ordinance without the approval of the Bundesrat,

1. to alter references to provisions in legal acts of the European Communities, inasmuch as is necessary in order to adapt them to changes in these provisions,
2. to delete provisions or to adapt their wording to a residual scope, inasmuch as they have become inapplicable through the adoption of corresponding provisions in Regulations of the European Community.

(3) Ordinances pursuant to this Act, which require the approval of the Bundesrat, may, where there is imminent danger, if they require immediate enforcement in order to implement legal acts of institutions of the European Community that relate to areas covered by this Act, in particular in relation to the circulation or use of fertilisers, be adopted without the approval of the Bundesrat. Ordinances pursuant to sentence 1 shall not require the mutual consent of the Federal Ministries required to participate. The ordinances shall be rescinded at the latest six months after they enter into force. Their term may only be extended with the approval of the Bundesrat.

(4) The Federal Ministry may adopt ordinances pursuant to this Act, which exclusively serve to transpose binding technical provisions arising out of directives or decisions of the institutions of the European Community, which relate to areas covered by this Act, in particular in relation to the circulation or use of fertilisers, without the approval of the Bundesrat.

(5) Contrary to Article 1 of the Gesetz über die Verkündung von Rechtsverordnungen (Promulgation Act), the ordinances may also be promulgated in the electronic Bundesanzeiger. References to ordinances that are promulgated in the electronic Bundesanzeiger must be included for information in the Bundesgesetzblatt, stating the reference source of their publication and the date on which they enter into force.

(6) In the ordinances based on this Act, with the exception of those based on Article 11, the authorisation in question may be entirely or partially transferred to the Land governments. If an ordinance adopted pursuant to sentence 1 authorises the Land governments to adopt ordinances, then they shall be empowered,

1. to entirely or partially transfer the authorisation to other authorities by ordinance, except in the case of an ordinance pursuant to Article 3(3), points 2 to 8,
2. in the case of an ordinance pursuant to Article 3(3), to allow exceptions from individual provisions, either generally or in individual instances, inasmuch as is necessary in order to take account of special operational factors or in order to prevent undue hardship.
   Article 3(4) shall apply accordingly in the case of sentence 1 in conjunction with sentence 2, point 2.

Article 16 Authorisation to rescind legal provisions

If authorisations to adopt Federal Government ordinances have lapsed as a result of amendments to this Act, then provisions based on such authorisations may be rescinded by an ordinance of the Federal Ministry without the approval of the Bundesrat.

Article 17 Transitional rule

Until an ordinance pursuant to Article 5(2) enters into force for the first time, then Article 2(1) and (2) and Article 10(2) point 2 of the Act on fertilisers of 15 November 1977 (BGBl. I p. 2134) last amended by Article 6 of the Act of 9 December 2006 (BGBl. I p. 2819; 2007, p. 195) must continue to be applied, contrary to Article 3(1) sentence 1 of point 2. The Federal Ministry shall announce the date pursuant to sentence 1 in the Bundesgesetzblatt.

Article 18 Entry into force, repeal

This Act shall enter into force on […]. At the same time, the Act on fertilisers of 15 November 1977 (BGBl. I p. 2134), last amended by Article 6 of the Act of 9 December 2006 (BGBl. I p. 2819; 2007, p. 195), shall be repealed.

Valid since:

09.01.09

Published:

15.04.09