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- 2 - Last updated: 23/7/2021 13:59

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Ordinance

of the Federal Ministry of Food and Agriculture

Fifth Ordinance amending the Ordinance on the use of plant protection products

A. Problem and objective

With a cabinet decision of 4 September 2019, the Federal Government adopted an insect protection action programme. Among many other measures, the use of certain plant protection products is to be restricted in areas of particular importance for insect protection and near water bodies. Crop protection products containing the active ingredient glyphosate have been used in agriculture for many years to control weeds and protect crops. However, the application can also have a negative impact on biodiversity and is to be significantly restricted initially and fully discontinued at the end of 31 December 2023.

B. 1 Solution

Amendment to the Plant Protection Application Ordinance [Pflanzenschutz-Anwendungsverordnung].

B. 2 Benefits

The changes are intended to contribute to sustainable, insect-friendly agriculture.

C. Alternatives

None at this time. Due to the forthcoming reform of the Common Agricultural Policy, other possibilities could arise for the Federal Government, at least in part, within the framework of the environmental schemes from 1 January 2023.

D. Budgetary expenditure exclusive of compliance costs

No budget expenditure exclusive of compliance costs will accrue.

E. Compliance costs

E.1 Compliance costs for citizens

None

E.2 Compliance costs for businesses

Businesses will incur additional costs due to the increased use of mechanical control measures as a result of the extensive restrictions on the use of plant protection products containing glyphosate. This, together with restrictions on the use of herbicides and certain insecticides in certain protected areas, may also result in additional costs from mechanical control measures. Additional costs may also arise from the introduction of bans on the use of plant protection products in marginal strips bordering water bodies. The calculation of the compliance costs will be carried out immediately after the Cabinet decision and prior to referral to the Bundesrat and with the involvement of the NKR (National Regulatory Control Council) and the Federal Statistical Office. The burdens are relevant to the ‘one in one out’ principle. A prospect of relief will be established within one year.

Administrative costs associated with obligations to provide information

The extension of an existing obligation to provide information and the introduction of a new one entail minor costs.

E.3 Administrative compliance costs

The federal states will incur additional costs in processing applications under § 4(3) and § 4a(2).

F. Additional costs

Effects on individual prices and the level of prices, in particular the consumer price level are not expected.
Last updated: 23/7/2021 13:59

Ordinance of the Federal Ministry of Food and Agriculture

Fifth Ordinance amending the Ordinance on the use of plant protection products))
Fifth Ordinance amending the Ordinance on the use of plant protection products)

Dated ...

On the basis of § 14(1)(1) and 5) in conjunction with paragraph 2 of the Plant Protection Act, of which § 14(1) in the part of the sentence preceding number 1 was last amended by Article 278 of the Ordinance of 19 June 2020 (Federal Law Gazette I p. 1328), the Federal Ministry of Food and Agriculture, in agreement with the Federal Ministry of Economic Affairs and Energy, the Federal Ministry of Labour and Social Affairs, the Federal Ministry of the Environment, Nature Conservation and Nuclear Safety and the Federal Ministry of Health, hereby decrees the following:
On the basis of § 14(1)(1) and 5) in conjunction with paragraph 2 of the Plant Protection Act, of which § 14(1) was most recently amended by Article 2 of the Act of July 5, 2021 (Federal Law Gazette I p. 2354), the ordinances Federal Ministry of Food and Agriculture, in agreement with the Federal Ministry of Economic Affairs and Energy, the Federal Ministry of Labour and Social Affairs, the Federal Ministry of the Environment, Nature Conservation and Nuclear Safety and the Federal Ministry of Health:

Article 1

Amendment to the Ordinance on the use of plant protection products


for the preparation of reseeding on areas which are assigned to an erosion hazard class in accordance with § 6(2) to (4) of the Agricultural Payments Obligations Ordinance or on which turning tillage is not permitted on the basis of other regulations.

In the case of subparagraph 1, the application shall be limited to the parts of grassland concerned.
In the case of subparagraph 1, the application shall be limited to the parts of

grassland concerned.

(5) Late application before harvest and application in water protection areas, medicinal spring protection areas and core and maintenance zones of biosphere reserves shall not be permitted.’


(1) In nature reserves, national parks, national nature monuments, natural monuments and legally protected biotopes within the meaning of § 30 of the Federal Nature Conservation Act, with the exception of dry stone walls in vineyards, plant protection products may not be used which

1. consist of or contain a substance listed in Annex 2 or 3;
1. consist of or contain a substance listed in Annex 2 or 3;

2. are intended to destroy undesirable plants or parts of plants; or

3. are intended to protect plants or parts of plants against insects or to control insects and have been approved by the Federal Office of Consumer Protection and Food Safety with the condition of being labelled as dangerous to bees B1 to B3 or as dangerous to pollinators NN 410.
3. are intended to protect plants or parts of plants against insects or to control insects and have been approved by the Federal Office of Consumer Protection and Food Safety with the condition of being labelled as dangerous to bees B1 to B3 or as dangerous to pollinators NN 410.

The prohibitions in the first sentence shall also apply in areas of community importance within the meaning of § 7(1)(6) of the Federal Nature Conservation Act, with the exception of areas used for horticulture, fruit growing and viticulture, the cultivation of hops and other special crops, the propagation of seeds and seedlings and, subject to paragraph 3, arable land which is not designated as a nature conservation area, national park, national monument of nature or natural monument.
The prohibitions in the first sentence shall also apply in areas of community importance within the meaning of § 7(1)(6) of the Federal Nature Conservation Act, with the exception of areas used for horticulture, fruit growing and viticulture, the cultivation of hops and other special crops, the propagation of seeds and seedlings and, subject to paragraph 3, arable land which is not designated as a nature conservation area, national park, national monument of nature or natural monument. Sentences 1 and 2 shall not apply in so far as a country has adopted or adopts provisions laying down requirements for the use of plant protection products, including exemptions and exemptions, in accordance with water or nature conservation provisions in addition to federal law.

(2) The competent authority may authorise exemptions from the prohibitions referred to in paragraph 1 in order to prevent significant agricultural, forestry or other economic damage or to protect native flora and fauna, in particular from invasive species. This shall not apply to the use of plant protection products consisting of or containing a substance listed in Section A(4) or (5) of Annex 3.
(2) The competent authority may grant derogations from the prohibitions referred to in paragraph 1:

1. in order to prevent significant agricultural, forestry or other economic damage,

2. or to protect native flora and fauna, in particular from invasive species and

3. to ensure road safety of railways.

This shall not apply to the use of plant protection products consisting of or containing a substance listed in Section A(4) or (5) of Annex 3.

(3) In areas of community importance within the meaning of Article 7(1)(6) of the Federal Nature Conservation Act, management without the use of the plant protection products listed in the first sentence of paragraph 1 shall be achieved by 30 June 2024 by means of voluntary agreements and measures on arable land which is not designated as a nature conservation area, national park, national nature monument or natural monument.

(4) The Federal Ministry of Food and Agriculture will examine the use of the plant protection products listed in paragraph 1, sentence 1, on the arable land referred to in paragraph 1, sentence 2, and the measures taken to reduce the use of these plant protection products on this land. The Federal Ministry of Food and Agriculture will report to the Cabinet by 30 June 2024 at the latest on the impact of the measures taken to reduce the use of plant protection products. This report shall include, if necessary, proposals for adjustments to the regulations in paragraph 1.’
(4) The Federal Ministry of Food and Agriculture will examine the use of the plant protection products listed in paragraph 1, sentence 1, on the arable land referred to in paragraph 1, sentence 2, and the measures taken to reduce the use of these plant protection products on this land. The Federal Ministry of Food and Agriculture will report to the Federal Cabinet by 30 June 2024 at the latest on the impact of the measures taken to reduce the use of plant protection products. This report shall include, if necessary, proposals for adjustments to the regulations in paragraph 1.

§ 4a

Prohibition of application to waters

(1) Plant protection products may not be used on water bodies, with the exception of small water bodies of minor importance for water management, within a distance of ten metres from the water body, measured from the overhanging embankment or, if there is no overhanging embankment, from the line of mean water level. In deviation from sentence 1, the minimum distance to be maintained shall be five metres if there is closed, year-round vegetation cover. Soil cultivation for the renewal of plant cover may be carried out once within five-year periods. The first five-year period shall begin on ... [insert: date of entry into force pursuant to Article 3(1) of this Ordinance] Where the authorisation of the plant protection product in question lays down rules on application at greater distances or on the plant protection equipment to be used, the obligation to comply with those rules on application shall remain unaffected. Distances between water bodies laid down by federal state law shall remain unaffected; the federal states may provide for different distances between water bodies.
(1) Plant protection products may not be used on water bodies, with the exception of small water bodies of minor importance for water management, within a distance of ten metres from the water body, measured from the overhanging embankment or, if there is no overhanging embankment, from the line of mean water level. In deviation from sentence 1, the minimum distance to be maintained shall be five metres if there is closed, year-round vegetation cover. Soil cultivation for the renewal of plant cover may be carried out once within five-year periods. The first five-year period shall begin on... [insert: date of entry into force pursuant to Article 3(1) of this Ordinance]. Where the authorisation of the plant protection product in question lays down rules on application at greater distances or on the plant protection equipment to be used, the obligation to comply with those rules on application shall remain unaffected. Sentences 1 to 4 shall not apply in so far as a country has adopted or adopts provisions pursuant to Section 22(1)(1)(b) of the Plant Protection Act which determine different water distances.

(2) The competent authority may authorise exceptions to the first and second sentences of paragraph 1 in order to prevent significant agricultural, forestry or other economic damage or to protect native flora and fauna, in particular from invasive species.’


b) use by professional users is authorised and the suitability for use in domestic and allotment gardens is established in accordance with § 36(1), sentence 2, subparagraph 3 or (2) of the Plant Protection Act;

4. on land intended for the general public; this shall not apply as long as the following applies for the plant protection product in question, on the basis of a decision not subject to challenge made before [insert: date of entry into force pursuant to Article 3(1) of this Ordinance]: the suitability for use on land intended for the general public has been established under an authorisation procedure or the use on land intended for the general public has been authorised.’
4. on land intended for the general public; this shall not apply as long as the following applies for the plant protection product in question, on the basis of a decision not subject to challenge made before [insert: date of entry into force pursuant to Article 3(1) of this Ordinance]: the suitability for use on land intended for the general public has been established under an authorisation procedure or the use on land intended for the general public has been authorised.’

c) Subparagraphs 5a and 7 are deleted.

Article 2

Further amendments to the Ordinance on the use of plant protection products


Annex 4 is deleted.

Article 3

Entry into force

(1) This Ordinance shall enter into force on the day following promulgation, subject to paragraph 2.

(2) Article 2 shall enter into force on the date glyphosate and glyphosate trimesium are no longer approved as active substances according to a regulation on the basis of Article 20(1)(b) in conjunction with paragraph 2(1) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ L 309, 24. 11. 2009, p. 1, L 111, 2.5.2018, p. 10, L 45, 18.2.2020, p. 81), as last amended by Regulation (EU) 2019/1009 (OJ L 170, 25.6.2019, p. 1), in the current version, and sell-by and use-by dates have expired, but no later than 1 January 2024. The Federal Ministry of Food and Agriculture shall announce the date of entry into force in the Federal Law Gazette.
(2) Article 2 shall enter into force on the date glyphosate and glyphosate trimesium are no longer approved as active substances according to a regulation on the basis of Article 20(1)(b) in conjunction with paragraph 2(1) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ L 309, 24. 11. 2009, p. 1, L 111, 2.5.2018, p. 10, L 45, 18.2.2020, p. 81), as last amended by Regulation (EU) 2019/1009 (OJ L 170, 25.6.2019, p. 1), in the current version, and sell-by and use-by dates have expired, but no later than 1 January 2024. The Federal Ministry of Food and Agriculture shall announce the date of entry into force in the Federal Law Gazette. The Federal Ministry of Food and Agriculture announces the date of entry into force in the Federal Law Gazette.

The Bundesrat has granted its approval.

Explanatory notes

A. General part

I Objective and necessity

Insects are an important part of nature. In order to prevent a decline in insects, the German government has adopted an insect protection action programme. Among many other measures, the use of certain plant protection products is to be restricted in areas of particular importance for insect protection. The use of plant protection products directly on water bodies is also to be restricted.

Plant protection products containing the active ingredient glyphosate have been used as herbicides in agriculture for many years. At EU level, the active ingredient is approved until December 2022. Plant protection products containing that active substance should therefore be authorised by Member States, provided that they satisfy the other conditions for authorisation provided for in Regulation (EC) No 1107/2009. As a broad-spectrum herbicide, it is used to control weeds, facilitate harvesting practices and no-till tillage, which is particularly beneficial in erosion-prone areas and also results in reduced soil water loss through evaporation. On the other hand, the use of plant protection products containing glyphosate can also have negative effects on biodiversity. The purpose of this Ordinance is therefore to specify, in addition to the conditions of use laid down in the authorisation of the plant protection products concerned, the uses which are still essential and thus to contribute to reducing use, with the aim of generally discontinuing use as soon as possible. The application possibilities in agriculture are initially restricted by the Ordinance, while the application in the home and allotment garden area and on areas used by the general public is prohibited. In the case of the latter areas, application can be dispensed with immediately.

Nature reserves, national parks, national nature monuments, natural monuments and legally protected biotopes within the meaning of the Federal Nature Conservation Act are high category national protected areas that serve to protect species and habitats. Plants and plant parts are elementary components of the habitats to be protected in these protected areas and serve as habitats and/or food sources for various species. The destruction of plants and parts of plants by the application of herbicides or the use of certain insecticides is contrary to the protection of species and habitats and of certain species of insects. The existing bans on the use of certain plant protection products in those areas should therefore be extended accordingly.

In future, the same application bans will also apply to FFH (Habitats Directive) sites, except for the cultivation of horticultural crops, fruit and wine growing, hops, seed and seedling propagation and other special crops that are not also designated as nature conservation areas or national parks. Cultivation without the use of herbicides and certain insecticides is also aimed at for arable farming in FFH areas. This is to be achieved through voluntary measures, such as elements of the future Common Agricultural Policy, agri-environmental and climate measures, contractual nature conservation, but also through increased advisory services. The Federal Ministry of Food and Agriculture will evaluate this measure and submit a report on these measures to the Federal Cabinet by 30 June 2024 year. On the basis of this report, a decision will be taken on possible further measures.

Exceptions should be allowed where insect populations or undesirable plants occur that would adversely modify or damage the targeted habitat or type of use, and to avoid severe economic disadvantages.

Water bodies represent important biotope connecting lines in the landscape. Strengthening the biotope connection lines by extensifying the use of the areas directly adjacent to the water bodies serves to stabilise biodiversity.

Exceptions should also be possible in the case of water bodies if undesirable plants grow and multiply in excess or if pests establish themselves which cause lasting damage to crops on neighbouring agricultural land and cannot be controlled there or can only be controlled at disproportionate expense.

II. Alternatives

None at this time. Due to the forthcoming reform of the Common Agricultural Policy, the environmental schemes could be at least partially taken into account at a later stage.

III. Power to enact legislation

The Ordinance is based on § 14 of the Plant Protection Act. The Federal Ministry of Food and Agriculture, in agreement with the Federal Ministries of Economic Affairs and Energy, of Labour and Social Affairs, of the Environment, Nature Conservation and Nuclear Safety and of Health, is responsible for issuing the ordinance. The consent of the Bundesrat is required.

IV. Compatibility with European Union law and international treaties

The Ordinance is in line with the provisions established by the Implementing Regulation (EU) 2017/2324 renewing the approval of the active substance glyphosate.

V. Regulatory consequences

Legal and administrative simplification

The Ordinance does not lead to legal and administrative simplification.

Sustainability aspects

The Ordinance contributes to sustainable agriculture and the preservation of natural resources and is therefore in line with the sustainability strategy.

Budgetary expenditures exclusive of compliance costs

none

Compliance costs

Citizens may incur minor costs as a result of the ban on the use of plant protection products containing glyphosate, but these cannot be quantified in individual cases.

The Ordinance contains restrictions on the use of plant protection products containing glyphosate. These affect many conventionally managed farms with arable farming or grassland. Here, additional annual costs (labour costs, costs for inputs) will result from the need for more frequent tillage. These costs will generally be higher than those resulting from the use of plant protection products containing glyphosate. However, depending on the type of farm, the crops grown and the weed infestation pressure, these costs can vary considerably.

There is no one-off compliance cost, as it can be assumed that equipment for soil cultivation is available on the farms.

For the orchards and vineyards located in nature reserves, the complete ban on herbicides will also result in higher costs; since mechanical soil cultivation is much more difficult here, the costs are also correspondingly higher.

Restricting the use of certain insecticides for agricultural land located in nature conservation areas may also result in higher compliance costs if only products requiring multiple applications are available as an alternative. For grassland located in FFH areas, mechanical soil cultivation may also result in higher compliance costs in individual cases. However, as fewer plant protection products are generally used here, the compliance burden is only minor. Otherwise, there are still possibilities for funding, e.g. within the framework of contractual nature conservation.