EU Water Law

Only in as much as it is demonstrated that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which does not cause harm to the environment may certain farms or livestock units benefit from exceptions to that rule, and the Member State involved must justify this to the Commission.

First, the capacity of storage vessels for livestock manure may on a case by case basis be authorised not to match that required for storage throughout the longest period during which land application in the vulnerable zone is prohibited, where it can be demonstrated to the competent authority that any quantity of manure in excess of the actual storage capacity will be disposed of in a manner which will not cause harm to the environment (Annex III (1)(2)). This was illustrated by the finding by the CJEU according to which a tax imposed on farmers in case of excessive application of manure, while it may indirectly limit the quantities so applied, does not ensure compliance with the Treaty’s requirement that pollution should as a priority be combated at source which, in the context of Directive 91/676/EEC, means that nitrogen inputs must be limited to the fullest possible extent “a fact which also justifies setting use standards”. As a result, even if a tax must be paid when they are exceeded, loss standards are not sufficient in that regard (case C-322/00 Commission v Netherlands, para. 75).

Second, a Member State may allow a different amount of nitrogen provided it informs the Commission, which shall examine the justification (Annex III (2)(b)). For instance, such a derogation was obtained by Belgium with regard to the region of Flanders, under drastic conditions: the amount of grazing livestock manure and treated manure was authorised up to 250 kg of nitrogen per hectare per year on parcels cultivated with grassland and maize under sown with grassland and 200 kg of nitrogen per hectare per year on parcels cultivated with winter wheat followed by a catch crop and with beets, and ‘the total nitrogen input shall comply with the nutrient demand of the considered crop and take into account the supply from the soil and the increased manure nitrogen availability due to treatment” not to exceed certain ceilings in any case (Commission Decision 2008/64/EC granting a derogation requested by Belgium with regard to the region of Flanders).