Party Political Conflict About the Implementation of the Nitrates Directive in Germany

Albert-Ludwig-University Freiburg Faculty of Environment and Natural Resources

Productive Farms – Polluted Water? Party Political Conflict about the Implementation of the Nitrates Directive in Germany

Master-thesis submitted in partial fulfillment of the requirements for the degree of Master of Science Environmental Governance

Miriam Beulting

Matriculation number: 4531473

First supervisor: Dr. Sylvia Kruse Second supervisor: Prof. Dr. Margaret Shannon

Freiburg im Beisgau / Germany

Date of submission: 29th April, 2020 Table of Contents

List of Figures and Tables ...... i List of Acronyms and Abbreviations ...... ii Acknowledgements ...... iii Abstract ...... iv 1. Introduction ...... 1 2. An Unsolved Challenge: Aquatic Nitrate Contamination and the Implementation of the Nitrates Directive in Germany ...... 1 2.1 The Degree and Effects of Aquatic Nitrate Contamination in Germany ...... 1 2.2 Agricultural Production as the Main Source of Aquatic Nitrate Contamination in Germany ...... 4 2.3 The European Nitrates Directive – a Policy Response to Aquatic Nitrate Contamination from Agricultural Sources ...... 6 2.4 The National Implementation of the European Nitrates Directive ...... 7 2.5 The National Implementation of the European Nitrates Directive in Germany ...... 8 2.6. Party-Political Cleavages Concerning Aquatic Nitrate Contamination from Agricultural Sources – Impediment or Driver of Policy Change? ...... 9 3. Problem Statement and Research Objective ...... 9 4. Theoretical Framework ...... 10 4.1 Cleavage Theory: Party Politics as an Impediment to Policy Change...... 10 4.2 Punctuated Equilibrium Framework: Party Politics as a Source of Policy Change ...... 14 4.2.1 The Basic Features of the Punctuated Equilibrium Framework ...... 14 4.2.2 The Role of Party Politics in the Punctuated Equilibrium Framework ...... 16 4.3 Party Politics and the National Transposition of European Directives ...... 19 4.4 Integrated Conceptual Model ...... 22 5. Methods ...... 24 5.1 Research Design ...... 24 5.2. Data Selection and Collection ...... 25 5.3 Data Analysis ...... 28 5.3.1 Quantitative Data Analysis ...... 28 5.3.2 Qualitative Data Analysis ...... 29 6. Results ...... 31 6.1 Decision-Making Structures during the Transposition of the Nitrates Directive in Germany .... 32 6.2 Party-Political Lines of Conflict concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive ...... 32 6.3 Party-Political Attention to Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive ...... 36 6.4 Policy-Making Processes Underlying the German Transposition of the Nitrates Directive ...... 37 6.4.1 The Policy Process Leading to the Adoption of the first National Action Programme (April 1991-January 1996) ...... 39 6.4.2 The Policy Process Leading to the First Two Amendments of the National Action Programme (February 1996-January 2006) ...... 41 6.4.3 The Policy Process Leading to the Third Amendment of the National Action Programme and the Political Debate until the 2nd ECJ Verdict (February 2006 - June 2018) ...... 45 7. Discussion ...... 51 7.1 Discussion of the Empirical Findings ...... 51 7.1.1 Party-Political Cleavages concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive ...... 51 7.1.2 Party-Political Cleavages as a Source of Political Attention to Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive ...... 54 7.1.3 The German Transposition of the Nitrates Directive – A Struggle between Competing Policy Images across Political Parties and Policy Venues ...... 56 7.1.4 Synopsis ...... 65 7.2 Discussion of the Research Scope and Design ...... 67 7.3 Transferability of the Results ...... 70 7.4 Implications for Further Research ...... 70 7.5 Practical Implications for Policy-Making ...... 73 7.5.1 Practical Implications for the Domestic Transposition of (Environmental) EU Directives ... 73 7.5.2 Practical Implications for the Design and Enforcement of (Environmental) EU Directives . 74 8. Conclusion ...... 76 9. References ...... 79 9.1 General Literature ...... 79 9.2. Verdicts ...... 92 9.3 Directives, Laws and Ordinances ...... 92 9.4 Legal Drafts ...... 92 9.5 Legislative Proceedings ...... 93 Appendix A: Results of Bundestag Elections and Party-Political Composition of the Bundesrat during the Implementation of the Nitrates Directive ...... 100 Results of Bundestag Elections ...... 100 Party-Political Composition of the Bundesrat ...... 100 Appendix B: Timeline of the Policy Process ...... 103 Appendix C: Overview of the Utilized Codes ...... 106 Appendix D: Key Assumptions in the Scientific Literature and the Empirical Findings of this Thesis . 135 Appendix E: Drafts and Final Acts of the Fertilization Ordinance (1996-2017) ...... 139 Testimony ...... 191 List of Figures and Tables Figures

Fig. 1: Current Status of the Planetary Boundaries ...... 1 Fig. 2: Groundwater Bodies in Germany with Nitrate Concentrations > 50 mg NO3/l ...... 3 Fig. 3: Comparison of Nitrogen Surplus and Livestock Density ...... 5 Fig. 4: The Implementation Stages of the Nitrates Directive ...... 7 Fig. 5 Integrated Conceptual Model of the Policy Process Underlying the German Transposition of the Nitrates Directive ...... 23 Fig. 6: Party-Political Composition of the Federal Government and Party-Political Affiliation of the Agricultural and Environmental Ministers, 1991-2018 ...... 36 Fig. 7: Legislative Activities concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive across Time...... 38 Fig. 8: Revised Integrated Conceptual Model of the Policy Process underlying the German Transposition of the Nitrates Directive ...... 66

Tables

Tab. 1: Types of Ecosystem Services and their Affectedness by Aquatic Nitrate Contamination ...... 2 Tab. 2: Party-Political Problem Understandings concerning Aquatic Nitrate Contamination ...... 34 Tab. 3: Party-Political Policy Preferences concerning Aquatic Nitrate Contamination...... 36 Tab. 4: Results of Bundestag Elections (1990-2017) ...... 100 Tab. 5: Majority Ratios in the Bundesrat during the Policy Process Leading to the First National Action Programme (1996) ...... 100 Tab. 6: Majority Ratios in the Bundesrat during the Policy Process Leading to the First Two Amendments of the National Action Programme (2003 and 2006) ...... 101 Tab. 7: Majority Ratios in the Bundesrat during the Policy Process Leading to the Third Amendment of the National Action Programme (2017) ...... 101 Tab. 8: Party-Political Understandings of the Severity of Aquatic Nitrate Contamination and its Sources ...... 107 Tab. 9: Party-Political Understandings of the Importance of Agriculture ...... 114 Tab. 10: Party-Political Policy Preferences concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive ...... 115 Tab. 11: Party-Political Positions during the Policy Process Leading to the Adoption of the NAP in 1996 (April 1991-January 1996) ...... 119 Tab. 12: Party-Political Positions during the Policy Process Leading to the First Amendment of the NAP in 2006 ...... 122 Tab. 13: Party-Political Positions during the Policy Process Leading to the Third Amendment of the NAP in 2017 and the Subsequent Months until the ECJ Verdict in June 2018...... 125 Tab. 14: Descriptions of Policy Processes Underlying the German Transposition of the Nitrates Directive (1991-2018) ...... 132 Tab. 15: Overview of Key Assumptions and Empirical Findings ...... 135 Tab. 16: Drafts and Final Acts of the Fertilization Ordinance Adopted in 1996 ...... 139 Tab. 17: Drafts and Final Acts of the Fertilization Ordinance Adopted in 2006 ...... 151 Tab. 18: Drafts and Final Acts of the Fertilization Ordinance Adopted in 2017 ...... 165 Tab. 19: Policy Positions of the Individual Political Parties and the European Commission concerning Specific Regulations of the New Fertilization Ordinance which was Adopted in 2017 ...... 183

List of Acronyms and Abbreviations

BME/ Federal ministry of agriculture BMEL/ BMELV

BMU/BMUB Federal ministry of the environment

BW Baden-Württemberg (German bundesland)

BY Bayern/ Bavaria (German bundesland)

CDU/CSU Christlich Demokratische Union Deutschlands/ Christlich-Soziale Union in Bayern (Christian Democratic Party)

COM European Commission

EU European Union

ECJ European Court of Justice

FDP Freie Demokratische Partei (Free Democratic Party)

FO Fertilization Ordinance

HH Freie und Hansestadt Hamburg/ Free and Hanseatic City of Hamburg (German bundesland)

MVP Mecklenburg-Vorpommern (German bundesland)

N Nitrogen

NAP National Action Programme (for the Implementation of the Nitrates Directive)

ND Nitrates Directive

Nds. Niedersachsen/ Lower Saxony (German bundesland)

NRW Nordrhein-Westfalen/ North Rhine-Westphalia (German bundesland)

PEF Punctuated Equilibrium Framework

RLP Rheinland-Pfalz/ Rhineland-Palatinate (German bundesland)

ST Sachsen-Anhalt/ Saxony-Anhalt (German bundesland)

SH Schleswig-Holstein (German bundesland)

SPD Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany)

Acknowledgements I would like to thank my two supervisors Dr. Sylvia Kruse and Prof. Dr. Margaret Shannon for taking the time to read and grade this thesis. Special thanks to Sylvia Kruse for guiding me through my research process. I could always rely on your advice when I needed it and learned a lot from your feed- back. I would also like to thank all MEG teachers, members of staff and the whole MEG13 class for being a great source of inspiration and motivation. Special thanks to my friends in the ‘thesis café’ – our mutual support throughout thesis writing meant a lot to me. Finally, I cannot end these acknowl- edgments without thanking my family for all your love, support and understanding.

iii

Abstract

Agriculture puts major strains on Germany’s aquatic ecosystems because intensive livestock farming and overfertilization contaminate surface and groundwater bodies with nitrates. In order to address this environmental problem, Germany is obliged to implement the Nitrates Directive, a central water protection directive of the European Union. But ever since the adoption of this directive at the Euro- pean level in 1991, German policy-makers have struggled to properly implement it, both time- and content-wise. In June 2018, the European Court of Justice convicted the German government for the second time due to its non-compliance with the Nitrates Directive.

This empirical observation forms the starting point of my research. The following thesis investigates why the German political decision-makers have repeatedly failed to produce timely and sufficient policy outputs to comply with the European Nitrates Directives. Existing scientific literature points to the importance of party politics for policy responses to aquatic nitrate contamination. On that account, my thesis traces the German transposition of the Nitrates Directive between 1991 and 2018 with a focus on the policy process within the formal decision-making bodies of the national state, and the political parties operating within these decision-making bodies.

In terms of theoretical framework, this research combines insights from cleavage theory, the Punctu- ated Equilibrium Framework and the EU implementation literature. Methodologically, it consists of a case study and analyses a variety of official documents (inter alia accounts of legislative debates, motions, interpellations, bills and court judgments) with the aid of both qualitative and quantitative techniques of data analysis.

The empirical findings confirm that party politics is key to understanding the policy process underlying the German transposition of the Nitrates Directive. Coupled with European pressure for policy reform, party-political cleavages helped put the nitrate issue onto the political agenda. However, the distribution of policy-making competencies across decision-making bodies and the prevalence of coalition governments provided both proponents and opponents of strict nitrate policies among the political parties with possibilities to further their preferences. Besides, dissent between different state governments of the German bundesländer, and between environmental and agricultural policy-makers materialized. The policy process was therefore characterized by lengthy and controversial negotiations and translated into policy compromises which fell short of the provisions of the Nitrates Directive.

1. Introduction

In June 2018, Germany was convicted by the European Court of Justice for non-compliance with the Nitrates Directive (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16). The verdict represented a new low point in the country’s transposition of this European directive, which seeks to reduce aquatic nitrate contamination from agricultural sources. Over the course of the last decades, changes in agricultural structures and practices have increased the releases of nitrogen compounds from the German farming sector substantially (Vogeler et al., 2019). These compounds accumulate as nitrate in surface and groundwater bodies, leading to environmental degradation and public health risks (Grizzetti et al., 2011). Although the sources and effects of aquatic nitrate pollution have long been known, Germany has struggled to properly implement the Nitrates Directive ever since this directive entered into force in 1991 (European Commission, 2002, 2007, 2013).

My thesis investigates the reasons behind Germany’s delayed and insufficient transposition. For this purpose, I scrutinize the domestic political process around the transposition of the Nitrates Directive over the course of the last three decades, with a focus on party politics within the formal decision- making bodies of the state. This thesis is structured as follows. Chapter two provides background information about the sources and effects of aquatic nitrate contamination, as well as about the Nitrates Directive and its transposition in Germany. My research objectives and questions are introduced in chapter three. Subsequently, chapter four presents the scientific literature which informed my research and lies out my conceptual model. Chapter five describes the methods of data collection and analysis of my case study. The results of the research are being presented in chapter six and discussed against the backdrop of the literature in chapter seven. Chapter eight concludes my thesis by recapit- ulating the main findings of the research.

2. An Unsolved Challenge: Aquatic Nitrate Contamination and the Im- plementation of the Nitrates Directive in Germany 2.1 The Degree and Effects of Aquatic Nitrate Contamination in Germany The nitrogen cycle is out of balance. This is the clear message of the re- nowned planetary boundaries framework, which argues that human interference with the natural nitrogen flows involves “high risk beyond uncertainty” (see fig. 1) (Steffen et al., 2015; Stockholm Resilience Centre, 2019). Put simply, the anthropogenic Fig. 1: Current Status of the Planetary Boundaries (Steffen et al., 2015) 1 generation of reactive nitrogen (NR) has been exceeding the natural decomposition processes which transform NR back into elemental nitrogen (N2) by far over the course of the last decades. In consequence, increasing amounts of NR have begun to accumulate in the natural environment (UBA, 2011).

The situation in Europe is particularly alarming. According to Sutton and Billen (2011), the European

Union (EU) produces approximately 10% of all global anthropogenic NR, despite covering only 2% of the world’s surface area. Due to such massive releases of NR, the nitrogen content in the European soil, water and air is by now three times higher than it was hundred years ago (UBA, 2018a). Consequently, the planetary boundaries framework classifies Europe – and particularly Northwest European countries like Germany – as a global hotspot of environmental nitrogen loading (Steffen et al., 2015).

My thesis focuses on water as an environmental medium which absorbs a large share of the anthropogenic nitrogen releases. The main nitrogen compound to be found in aquatic environments is nitrate

(NO3-) (Sutton et al., 2011; SRU, 2015). Its accumulation has extremely negative effects on aquatic ecosystems. Most importantly, it leads to eutrophication processes which undermine the biological composition of water bodies, up to the point of creating aquatic ‘dead zones’ with no or strongly reduced fauna (Erisman et al., 2011; UBA, 2011; Ngatia et al., 2019). Besides, nitrate decreases the pH of the water, thereby harming the resilience of acid-sensitive plants, animals and entire habitats (Cardoso et al., 2009; Ngatia et al., 2019).

The nitrate pollution of the aquatic environment causes major risks and inconveniences for human- kind, too, because it obstructs the ecosystem services which water bodies provide (Durand et al., 2011). Ecosystem services are “the benefits people obtain from ecosystems”, according to a definition by the Millennium Ecosystem Assessment (2005, p. 27). As shown in table one, nitrate pollution affects all four types of ecosystem services which water bodies provide (Grizzetti et al., 2011).

Tab. 1: Types of Ecosystem Services According to the Millennium Ecosystem Assessment (2005) and their Affectedness by Aquatic Nitrate Contamination

Type of General examples Effects of aquatic nitrate contamination on the ecosystem services ecosystem provided by water bodies service Provisional Supply of food and Contamination of drinking water (Erisman et al., 2011; UBA, 2011) services fresh water Fish kill in oxygen depleted zones; decrease in the biomass or nutritional value of fish (Smith and Schindler, 2009; Taipale et al., 2016). Regulating Water purification and Reduced efficiency of water purification (Mulholland et al., 2008) services the regulation of cli- Greater risk of flooding and water-borne diseases (Folke et al., 2004; mate, flood and dis- McKenzie and Townsend, 2007) eases Greater release of the greenhouse gas nitrous oxide into the atmosphere (Mengis, Gächter and Wehrli, 1997; Seitzinger and Kroeze, 1998; Hasegawa et al., 2000; Johansson et al., 2003; Durand et al., 2011) Cultural Recreational, aesthetic Unpleasant smells of nutrient-rich water bodies, abundance of aes- services and spiritual assets thetically uninviting algae and spread of toxic substances within bathing waters (Dodds et al., 2009; Erisman et al., 2011; Grizzetti et al., 2011; UBA, 2011) 2

Supporting Nutrient cycling, soil Acceleration and distortion of nutrient cycling and primary produc- services formation and primary tion (Grizzetti et al., 2011) production

Importantly, eutrophication and acidification affect not only lakes and creeks in the immediate sur- roundings of anthropogenic nitrogen sources. Due to the interconnectedness of many water bodies, they can harm entire river basins and the oceans into which contaminated rivers feed (Erisman et al., 2011; UBA, 2011). Besides, surface water becomes the subject of atmospheric nitrogen deposition (Bergström and Jansson, 2006; Doney et al., 2007; Jickells et al., 2017).

In Germany, inputs of nitrogen and other nutrients are the main reason why 61% of the natural lakes are not in a good chemical status and the second most important reason why 92% of the rivers are not in a good chemical status (SRU, 2015). Moreover, riverine nitrate loading and atmospheric NR emissions have led to biodiversity losses and oxygen deficiencies in the North and Baltic Seas (Voss et al., 2011). European eutrophication assessments classify the marine areas off the German coast as environmental ‘problem areas’ or as water regions in no ‘good environmental state’ (EEA, 2015).

Additionally, nitrate contamination of groundwater bodies – a major source of drinking water in Germany – poses public health risks in various regions across the country (see fig. 2) (BMUB, 2017). 28% of the national groundwater monitoring stations show nitrate concentrations above 50 mg NO3mg/l (the legal threshold value for safe drinking water), which makes Germany the second most affected country by groundwater nitrate pollution in the European Union (European Commission, 2018).

Tracing the evolution of aquatic nitrate contamination across time is a challenging task, given the complex and non-linear dynamics of the nitrogen cycle. Nitrate concentrations in surface Fig. 2: Groundwater Bodies in Germany water bodies are contingent upon annual rainfall, for example, with Nitrate Concentrations > 50 mg NO3/l (Dark Areas) (as of 2017) (BMUB, and NR seeps only slowly into the groundwater – but may stay 2017) there for years or decades, even after the nitrogen source has been terminated (Bannick et al., 2008; SRU, 2015; BMUB and BMEL, 2016; Kirschke et al., 2019). Be- sides, data on this type of environmental pollution has not been gathered uniformly across time in Germany (BMU and BMELV, 2008, 2012). Consequently, the development of aquatic nitrate contamination over the past decades and forecasts into the future are marked by uncertainties.

On a general level, scientific evidence points to a gradual decrease in aquatic nitrate contamination for all types of German water bodies over the course of the last decades (BMU and BMELV, 2008, 2012; BMUB and BMEL, 2016). Yet, the achieved decreases are deemed insufficient. Besides, the reduction trend has slowed down in recent years, and the groundwater nitrate concentrations in particularly affected regions have even begun to rise again (SRU, 2015). In sum, aquatic nitrate pollution continues

3 to be a severe environmental and public health problem in Germany. Scientists warn that it must not be underestimated in the light of remaining uncertainties (Grizzetti et al., 2011; SRU, 2015).

2.2 Agricultural Production as the Main Source of Aquatic Nitrate Contamination in Germany Agricultural production is the single most important driver of aquatic nitrate pollution in Germany. It accounts for more than 50% of the NR which is being released into the environment, and approximately 80% of the direct nitrogen discharges into surface water bodies (Arle et al., 2013; UBA, 2019). The use of NR in the agricultural sector is unavoidable, since farming depends on this substance as an essential nutrient. Nitrogen-rich fertilizers help farmers obtain higher yields of good quality and maintain or increase the fertility of their soils (UBA, 2019). However, there are limits to the amount of nitrogen which plants and soils can absorb. The so-called nitrogen surplus identify excessive amounts of NR fertilization.

Put simply, a nitrogen surplus implies that the nitrogen input (inter alia via synthetic and organic fertilizers, domestic and imported animal feed, nitrogen fixation by Leguminosae and atmospheric deposition) surpasses the nitrogen output (via harvested crops and animal source products) on a farm. De- spite a reduction by almost one third since 1990, the average nitrogen surplus in Germany stood still at approximately 100 kg NR/ ha agricultural land in 2015 (UBA, 2018a). And some studies suggest that contrary to the national trend, the nitrogen surplus in certain regions has been stagnating or even increasing over the last years (Heidecke, Wagner and Kreins, 2012; Taube and Schütte, 2013).

Germany’s strong nitrogen surplus results from the intensification of the agricultural sector. Driven by productivity-oriented national and European agricultural policies, German farmers sought to steadily maximize their crop yields over the course of the last decades (Conrad, 1990; Matthews, 2013; Fouilleux and Ansaloni, 2016; Alons, 2017). Major productivity gains were indeed achieved for most crops, but only with the aid of large amounts of nitrogen-rich fertilizers (Wissenschaftlicher Beirat für Düngungsfragen, 2009; Armbruster et al., 2014; SRU, 2015). The potential to further enhance crop yields and soil fertility has largely been exhausted by now. Accordingly, the large nitrogen surplus of German agriculture points to the pervasiveness of over-fertilization and a high risk of nitrogen losses to the environment (Nieder, Köster and Kersebaum, 2007; WBA WBD and SRU, 2014).

Furthermore, a gradual market liberalization, coupled with European and national policies to enhance productive capacity and agricultural exports, nurtured the expansion and specialization of German farms (Bowler, 1986; Conrad, 1990; Fouilleux and Ansaloni, 2016; Lovec, 2016; Vogeler et al., 2019) Approximately 90% of all farms have specialized their production by now, which means that they concentrate on either crop cultivation or livestock farming (StBA, 2017). Very often, farms specializing in one production activity concentrate in specific regions of the country (BMEL, 2018). Internationally, Germany has become a hotspot for animal husbandry, due to the specialization of many farms and certain regions of the country in this sector (Lazzaretto, 2018). With a livestock stock of 28 million pigs

4 and 12,3 million cows, Germany is the third largest pork meat exporter in the world and the largest dairy producer in Europe (BMEL, 2018).

The growth, specialization and regional concentration of animal husbandry in Germany fuels the problem of aquatic nitrate contamination (Vogeler et al., 2019). Since many animal farms do not produce their own fodder anymore, they export large quantities of animal feed, which raises the national nitrogen stock by roughly 400 kilo tonnes every year (UBA, 2014). Accordingly, Nitrogen surplus in kg N/ ha agricultur- Livestock density in livestock units/ ha ally used land (average for 2012-2014) agriculturally used land (2013) and as illustrated in figure three, the regional hubs of livestock farming in Germany have much higher nitrogen surpluses than the Fig. 3: Comparison of Nitrogen Surplus and Livestock Density (Own Transla- tion) (BMEL, 2018a) national average (WBA WBD and SRU, 2014; UBA, 2018a).

At the end of the value chain, intensive livestock rearing farms and regions face an excess of nitrogen- rich organic manure but often lack the necessary croplands to apply these fertilizers. In this context, inadequate waste management and the ‘disposal’ of large volumes of manure on small, quickly over- saturated areas of land risk releasing major amounts of NR into the natural environment (Jarvis et al., 2011). Excess manure often ends up on fields cultivating energy crops like corn, which tolerate large amounts of fertilizers, because bioenergy plants are widespread in the regional hubs of animal husbandry (SRU, 2015; Vogeler et al., 2019). Accordingly, and as revealed by a comparison of figures two and three, there is a close correspondence between the regions with intensive livestock farming on the one hand, and the severity of groundwater pollution with nitrate on the other hand.

In summary, the evolution of the German agricultural sector over the course of the last decades may be considered a success story from a narrow economic focus, based on the increases in crop yields and meat exports. Yet, this economic growth has come at a high environmental cost. And while the farming sector has been a main driver of aquatic nitrate contamination, it has hitherto contributed little to the solution of this problem (SRU, 2015). Nitrate leaching from point sources (e.g. sewage treatment plants and industrial production sites) has been reduced by approximately 77% since the 1980s, for instance, but inputs from diffuse sources (notably agriculture) have largely stagnated (Arle et al., 2013; Salomon et al., 2016). This observation raises critical questions about policy efforts to address nitrogen pollution from farming activities.

2.3 The European Nitrates Directive – a Policy Response to Aquatic Nitrate Contamina- tion from Agricultural Sources In order to mitigate aquatic nitrate contamination by the farming sector, the European Union adopted the so-called Nitrates Directive (Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources) in December 1991. This directive is in various regards a pioneer. It counts among the earliest European legal acts which strive to improve water quality (European Commission, 2010). It also one of the first EU regulations with a structural approach to environmental problems, aimed at altering polluting activities, rather than just mitigating their consequences (Kallis and Nijkamp, 1999). Moreover, the Nitrates Directive spearheaded environmental policy in the EU’s agricultural sector (Grossman, 2000).

As basic goals, the EU Nitrates Directive obliges the European member states to

• ensure that the nitrate concentrations within their ground- and freshwater reserves remain

below, or return to a threshold value of 50 mg NO3/l and • prevent or reverse the eutrophication of water bodies within their jurisdiction, including all freshwater and marine water bodies.

(Council Directive 91/676/EEC).

In order to fulfil these legal stipulations, the member states must implement national action programmes (NAPs) which reduce and prevent NR releases from agricultural sources. As is the case with many European policy initiatives, the Nitrates Directives grants the implementing countries substantial flexibility (Demmke, 2001; Nimmo Smith et al., 2007). National governments are being told what to regulate (e.g. the capacity of storage vessels for livestock manure, as well as the permissible quantity and timing of fertilizer application) but can devise the specific regulations themselves (Council Directive 91/676/EEC).

In order to ensure compliance with its objectives, the EU Nitrates Directive obliges the member states to set up comprehensive monitoring schemes (Council Directive 91/676/EEC). These schemes must include a network of sampling stations which keeps track of the nitrate concentrations in water bodies across each country (BMUB and BMEL, 2016). To document the evolution of national water quality and the policy measures to reduce nitrate pollution from agricultural sources, the national government have to submit nitrate reports to the European Commission every four years. And if a country fails to reach the objectives of the directive, it must adopt additional policy measures to meet its European obligations (Council Directive 91/676/EEC).

By now, the Nitrates Directive has become strongly interlinked with other European legal acts such as the Water Framework Directive. Nonetheless, it remains the principal piece of EU legislation to prevent agricultural nitrate pollution of water bodies (European Commission, 2010). As such, the Nitrates Di- rective forms an important environmental counter-weight vis-à-vis the productivity orientation of Eu- ropean and German agricultural policy described in chapter 2.2. Yet, the contribution which the

Nitrates Directive can make to more environmentally friendly agricultural practices depends on its proper implementation in the member states.

2.4 The National Implementation of the European Nitrates Directive

(Policy) implementation comprises the actions which EU member states take to fulfil legal requirements that have been formulated at the European level (Treib, 2014). Two dimensions of implementation are typically distinguished in the EU implementation literature. De jure (or legal) implementation includes the transposition of EU legislation into the national code of laws, whereas de facto implementation comprises the actual, practical measures carried through on the ground (Lewkowicz and Metelska-Szaniawska, 2016). The two terms are closely related with the widespread distinction between policy output and policy outcome in public policy analysis. Policy output refers to policy measures formulated by decision-makers in a political system (and hence is the result of de jure implementation in the EU context). Policy outcome denotes the substantive results of these measures (and hence emerges from the de facto implementation of EU law) (Fischer, Miller and Sidney, 2007).

In the case of the Nitrates Directive, policy output and outcome are closely interlinked. The directive requires the EU member states to adopt additional policy measures (i.e. produce further policy output) if they fail to reach the substantive goals of the directive (i.e. deviate from the desired policy outcome). This requirement makes the implementation of the Nitrates Directive a dynamic process. Compliance i.e. a state in which a member state is considered to be conforming with its European obligation (Raustiala and Slaughter, 2002) can be declared even in the presence of elevated aquatic nitrate concentrations – as long as the European Commission considers the national policies ambitious enough to solve the nitrate problem in the longer run. Conversely, a member state may be reprimanded for vio- lating the Nitrates Directive even though it has incorporated all basic provisions of the directive into national law if these measures prove insufficient to reduce the aquatic nitrate concentrations.

Need for additional output?

National National De jure De facto EU law policy policy implementation implementation output outcome

(Non)Compliance

Fig. 4: The Implementation Stages of the Nitrates Directive (Own Compilation Based on the Previously Presented Literature)

Throughout the existence of the Nitrates Directive, governments have been struggling to transpose it into national law and reach the policy goals of this piece of EU legislation. The poor implementation is reflected in the large number of infringement procedures and admonitions which the European Com- mission initiated over the course of the last decades (European Commission, 2007, 2011, 2013, 2018). Yet, there is also notable variation in the compliance between member states – including members states with similar agricultural structures. Germany can be singled out as a country with a particularly poor implementation record (European Commission, 2007, 2011, 2013, 2018). As will be shown in the following chapter, Germany’s deficient implementation of the Nitrates Directive was characterized by an incomplete transposition of basic legal provisions in the first years, and a lack of follow-up policy action in response to insufficient progress thereafter.

2.5 The National Implementation of the European Nitrates Directive in Germany

At the heart of Germany’s action programme for the implementation of the Nitrates Directive stands the so-called Fertilization Ordinance (Düngeverordnung (DüV)). This legal act was adopted in early 1996, more than two years after the official implementation deadline of the Nitrates Directive had expired (DüV i. d. F. v. 26. Januar 1996; Council Directive 91/676/EEC). Six years later, in March 2002, the European Court of Justice (ECJ) convicted Germany for non-compliance with the directive because the Fertilization Ordinance allowed farmers to fertilize above the maximum amounts permitted by the directive (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00). Germany’s modification of the ordinance in 2003 rectified this violation of EU law (DüV i. d. F. v. 14. Februar 2003). A second amendment in 2006 addressed remaining deficits of the ordinance which had been pointed out by the European Commission (European Commission, 2002; DüV i. d. F. v. 10. Januar 2006).

Yet, in 2012, a new national nitrate report revealed stagnating and at some sampling stations even increasing nitrate concentrations and a continuously high eutrophication risk along the country’s coast. Germany’s failure to meet the objectives of the Nitrates Directive obliged the country to tighten its fertilization legislation. Since the government failed to do so in time, the European Commission initiated another infringement procedure. In June 2018, the European Court of Justice convicted Germany for non-compliance with the Nitrates Directive (BMEL, 2016; ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16). The second infringement procedure was centred around Germany’s failure to amend the Fertilization Ordinance of 2006 within a deadline set by the European Commission (Sep- tember 2016), following the release of the 2012 nitrate report. In its judgement, the ECJ did not evaluate the amendment of the fertilization legislation which the German government undertook in 2017 (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16). In the end, however, the latest amendment did not gain European approval either. In July 2019, the Commission published a formal notice calling upon the German government to further improve its NAP (European Commission, 2019d). Ad- ditional adjustments to the Fertilization Ordinance which German politicians agreed upon in late March 2020 to avert a daily penalty of 850.000 € are currently being scrutinized by the European Com- mission (Europäische Kommission, 2020; Jahberg, 2020).

2.6. Party-Political Cleavages Concerning Aquatic Nitrate Contamination from Agricul- tural Sources – Impediment or Driver of Policy Change? A detailed analysis of the policy process underlying Germany’s transposition of the Nitrates Directive has not yet been conducted. However, Schaub (2019) has recently examined the positions of German political parties concerning agricultural pollutants in water bodies. Although his study does not distinguish between different types of pollutants (i.e. fertilizers and pesticides) and does not cover the entire implementation period of the Nitrates Directive, it helps illuminate the field of German nitrate politics.

Schaub (2019) attributes the lack of policy action on agricultural water pollution to deep ideological divisions within the German party system. While some parties are primarily concerned with agricultural productivity and disapprove state intervention in the farming sector, other parties emphasize the importance of water protection and favour strict environmental regulations of agricultural production (Schaub, 2019). Beyond the description of this party-political divide, the author does not elaborate on the concrete mechanisms which blocked the necessary policy progress, however.

Besides, Schaub’s (2019) reasoning can be contrasted with Green-Pedersen’s and Wolfe’s (2009) study on Danish nitrate politics. The EU member state Denmark has a similar agricultural production system as Germany, but has addressed the problem of aquatic nitrate contamination more resolutely and effectively (Hölscher and Gehre, 2018). This fact makes Denmark an insightful object of inquiry from the German perspective. Like Schaub, Green-Pedersen and Wolfe (2009) identify a deep rift in Den- mark’s party system concerning the prioritization of agricultural productivity on the one hand, and water protection on the other hand. However, based on their detailed analysis of Danish nitrate politics, Green-Pedersen and Wolfe (2009) characterize party-political divisions as a driver of (rather than impediment to) policy change. They argue that the divisions encouraged environmentally-oriented parties to tackle aquatic nitrate pollution and pressurize their political opponents to do so as well.

3. Problem Statement and Research Objective

As shown in the preceding chapter, nitrogen discharges from agricultural sources put major strains on German water bodies. The Nitrates Directive is meant to address this environmental problem, but its implementation in Germany has been characterized by delayed and inadequate national regulations, and the aquatic nitrate concentrations in the country are still too high. So far, little research about the reasons behind this poor implementation score has been conducted – a research gap which my thesis seeks to fill. Schaub’s (2019) and Green-Pedersen’s and Wolfe’s (2009) contrasting suggestions about the role of party-political conflict for the policy responses to aquatic contamination from agricultural sources form the starting point of my scientific inquiry.

In brief, this thesis aims to understand why the German political decision-makers have repeatedly failed to produce timely and sufficient policy outputs to comply with the European Nitrates Direc- tives. For this purpose, my thesis traces the transposition of the Nitrates Directive (de jure implementation) with a focus on the policy process within the formal decision-making bodies of the Ger- man national state, and the political parties operating within these decision-making bodies. 9

Time-wise, my research investigates the policy-making process in Germany over a period of twenty- seven years, i.e. from April 1991 (when the German parliament first discussed the Fertilization Ordi- nance) until June 2018 (when Germany’s second conviction for violation of the Nitrates Directive was declared). This time frame allows me to address the following research questions:

Time period: April 1991-January 1996

1. Why did the German political decision-makers delay the adoption of a national action programme for the implementation of the Nitrates Directive until 1996? 2. Why did the German political decision-makers adopt a national action programme which did not comply with the Nitrates Directive in 1996?

Time period: February 1996-January 2006

3. Why did the German political decision-makers delay the amendment of the national action programme until 2003 and 2006? 4. Why did the German political decision-makers succeed in amending the national action programme in compliance with the requirements of the Nitrates Directive in 2006?

Time period: February 2006-June 2018

5. Did the German political decision-makers consider a reform of the national action programme before the publication of the 2012 nitrate report? 6. Why did the German political decision-makers delay the amendment of the national action programme until 2017 after the publication of the 2012 nitrate report? 7. Why did the German political decision-makers adopt an amended national action programme which did not comply with the Nitrates Directive in 2017?

4. Theoretical Framework 4.1 Cleavage Theory: Party Politics as an Impediment to Policy Change As has been mentioned above, Schaub (2019) attributes Germany’s insufficient policy response to agricultural water pollution to deep ideological divisions within the national party system. His argumen- tation builds upon cleavage theory, which characterizes political systems via persistent lines of conflicts between different political parties (Lipset and Rokkan, 1967). “The term ‘cleavage’ denotes a specific type of conflict in democratic politics that is rooted in the social structural transformations that have been triggered by large-scale processes such as nation building, industrialization, and possibly also by the consequences of post-industrialization.” (Bornschier, 2009, p. 1). Cleavage theory distinguishes between various major cleavages which divide societal groups and the parties which claim to represent them (Lipset and Rokkan, 1967; Müller, 2009). Traditional cleavages have recently been complemented by novel lines of conflict. In particular, Inglehart (1990) notices the rise of a new political cleavage between materialistic and post-materialistic values (Carter, 2006). Scholars of the cleavage literature speak of new politics to describe this phenomenon (Inglehart, 1990; Carter, 2018).

While post-materialism comprises many facets, the relevant dimension for this thesis is its focus on environmental protection (Inglehart, 1990; Carter, 2006). Notably with the foundation of Green parties or else with the incorporation of environmental topics into the programmes of established parties, postmaterialist concerns about the environment have become engrained in the political systems of Germany and multiple other democracies. Parties holding on to materialist values, on the other hand, prioritize economic growth higher than environmental protection (Knutsen, 1988; Carter, 2013, 2018).

Schaub (2019) argues that both traditional and novel cleavages shape the positions which the political parties in Germany have adopted towards aquatic pollution from agricultural sources. First of all, he connects the current party-political conflict about agricultural pollution to the rise of new politics. In the past, agriculture enjoyed a privileged political position in Germany and across the European Union, as policy-makers sought to shield this sector from external competition and ensure domestic food security. This agricultural exceptionalism took the form of large-scale, productivity-oriented state support and a prioritization of farmers’ economic interests in public policy (Fearne, 1997; Muirhead and Almås, 2012; Daugbjerg and Feindt, 2017). Because this agricultural policy approach produced negative environmental externalities, post-exceptionalism emerged as a counter concept. This new, competing paradigm assigns the farming sector not only a responsibility for food production, but also for environmental preservation (Muirhead and Almås, 2012; Gladrow, Englert and Ewert, 2015; Daugbjerg and Feindt, 2017). Post-exceptionalism thus conforms well with the environmental dimension of post- materialism, whereas the economic focus of exceptionalism resonates with materialism.

Within the German party system, Schaub (2019) locates the exceptionalism – post-exceptionalism divide primarily between the Christian Democratic Party (CDU) and its Bavarian sister party, the Christian Social Union (CSU), on the one hand, and the Green Party (Bündnis 90/Die Grünen) on the other hand. According to the author, the CDU/CSU adheres to the exceptionalist agricultural paradigm (Schaub, 2019). Politicians of this party are primarily concerned with protecting the interest of conventional farmers, whom they count as an important constituency and with whose associations they hold close relationships. Consequently, the CDU/CSU typically opposes environmental policies which undermine agricultural production and generate additional costs for farmers (Tosun, 2017; Schaub, 2019). By contrast, environmental protection is a principal priority of the Green Party, which is closely associated with environmental organizations and alternative (e.g. organic) farmers. Green Party members can therefore be categorized as stark post-exceptionalists (Tosun, 2017; Schaub, 2019).

This agricultural policy orientation is reflected in the saliency of water pollution from agricultural sources among the German parties. Saliency can be defined as “the relative importance attached to a certain issue in relation to other issues” (Spendzharova and Versluis, 2013, p. 1499). Schaub (2019) measures the relevance which political parties in Germany attribute to agricultural water pollutants through an analysis of party manifestoes. He finds that the electoral manifestoes of all major parties between 1998 and 2018 address agricultural water pollution to some extent, which indicates a certain cross-partisan saliency of the issue. However, the Christian Democrats mention agricultural pollutants and policy measures to reduce the release of such substances only rarely. And even if they do touch upon the issue, they emphasize that mitigation measures must not impinge on the economic interests 11 of the farming sector. By contrast, Bündnis 90/Die Grünen refers in almost half of their electoral manifestoes to the problem of water pollution from agricultural sources. The party also lists concrete policy measures to address the problem and achieve a general, environmentally-oriented transformation of agricultural production systems. In short, there is considerable variation in the degree of saliency among these two parties (Schaub, 2019).

Additionally, based on his analysis of party manifestoes, Schaub (2019) discusses the positioning of the parties according to the traditional cleavage between the political left and left. This cleavage relates to partisan stances on economic policy, most notably whether parties advocate an active involvement of the state in the economy (political left) or prefer market liberalism (political right). In line with this political cleavage, Schaub (2019) finds that Germany’s centre-right/right-wing parties (the CDU/CSU, the Liberal Party (FDP) and the far-right wing Alternative für Deutschland (AfD)) object to major environmentally-oriented state interventions in the farming sector. Instead, they favour technological solutions to water pollution. By contrast, the three centre-left/ left-wing parties (the Social Democrats (SPD), the Green Party and the Left Party (DIE LINKE)) support more interventionist strategies to mitigate aquatic contamination from agricultural sources. The Green Party formulates the furthest reaching policy positions, closely followed by the Left Party. The SPD supports a mix of public intervention and technological progress, but is overall relatively close to the other left parties (Schaub, 2019).

Schaub (2019) argues that these deep ideological divisions within the German party system explain why the country has hitherto not solved the problem of aquatic pollution from agriculture. Yet, he does not spell out how the party-political cleavages impeded policy progress. How much pressure did the parties with post-exceptionalist positions put on the exceptionalists, for instance? How did the exceptionalists respond? And what political leverage did each side have in the policy process? Such questions remain unanswered. The author blends two different sources of pollution (pesticides and fertilizers) which are subject to different regulations (BMEL, 2020a, 2020b), and fails to elaborate on the concrete policy processes concerning any of them. The fact that Schaub draws his conclusions solely on the basis of party manifestoes is highly problematic because the policy analysis literature has convincingly shown that policy preferences do not easily and neatly translate into policy output. The institutional set-up of a political system and the political processes which unfold within the polity matter, too (Sabatier, 2007; Baumgartner et al., 2009).

Schaub’s (2019) only reference to the decision-making context of German nitrate politics relates to the fact that the exceptionalist centre-right CDU/CSU typically occupies the federal agricultural ministry. The importance of this ministry and its party-political leadership for German nitrate politics is confirmed by Vogeler et al. (2019). In a recent study on water, (bio)energy and food governance in German regions with intensive livestock farming, these authors point to the principal responsibility for the national fertilization legislation which the federal agricultural ministry holds. They also stress that the Christian Democratic politicians who have controlled this ministry in the past years used their political leverage to further their exceptionalist policy preferences (Vogeler et al., 2019).

However, the partisan affiliation of the federal agricultural minister alone cannot explain the deficient transposition of the Nitrates Directive because the agricultural ministry was also led by the Green Party in the 2000s (BMEL, 2019). Besides, it seems insufficient to focus solely on the agricultural ministry to understand German nitrate politics. While the agricultural ministry regulates food production, the environmental ministry oversees water protection, for example. And as Vogeler et al. (2019) criticize the compartmentalized nature of agricultural, water and (bio)energy policy in Germany, it seems worthwhile to scrutinize the relations between decision-makers from different policy fields during the transposition of the Nitrates Directive. Additionally, Vogeler et al.’s research suggests that the role of opposition parties in the policy process must be considered. The authors note that the Green Party seized reports about deteriorating water quality to criticize the environmental externalities of intensive agriculture, hence pressuring the government for policy change, for example (Vogeler et al., 2019).

Furthermore, Vogeler et al.’s (2019) work reveals that German nitrate politics unfolds across different political levels. The reform of the national Fertilization Ordinance in the 2010s was hampered by the need for consent from the bundesländer (the regional states), which struggled to come to an agreement because the environmental problem pressure between the regions differed markedly, for example (Vogeler et al., 2019). Similar observations about the interplay between policy-makers in different issue fields and at different levels of government in German nitrate policy-making are made by Conrad (1990). Although his findings cannot be used to explain the transposition of the Nitrates Directive (which occurred after 1990), they corroborate the need to consider decision-making structures and practices to understand policy output concerning aquatic nitrate contamination from agricultural sources (Conrad, 1990)

Conrad’s (1990) monograph is also noteworthy because the author describes rather moderate lines of partisan conflict vis-à-vis the nitrate issue in the 1970s and 1980s. This lack of polarization discouraged the political parties from embracing the topic in their electoral campaigns or governmental policy projects, although the causes and effects of aquatic nitrate contamination were by then well known. Ac- cordingly, the author characterizes most nitrate policies until the late 1980s as symbolic gestures. While Conrad conjectures that greater party-political controversy around the nitrate issue might have hampered policy progress as well, his findings show that profound ideological divisions alone cannot explain insufficient policy responses to aquatic nitrate contamination (Conrad, 1990).

Conrad’s (1990) observation that German nitrate politics was not always strongly underpinned by deep party-political cleavages is particularly relevant in the context of this thesis because my observation period starts seven years before the period which Schaub examines. Hence, the adoption of the original version of the Fertilization Ordinance in 1996 might have occurred with a more moderate degree of party-political polarization than suggested by Schaub’s (2019) work.

In sum, Schaub’s (2019) paper forms a valuable starting point for my investigation but does not provide a sufficiently elaborate theoretical framework for my empirical study. Understanding Germany’s violations of the Nitrates Directive requires a closer examination of the policy process underlying the transposition. Research by Vogeler et al. (2019) and Conrad (1990) provides further information about

13 the decision-making context, but touches only briefly on party politics. Additional theoretical and empirical insights are provided by Green-Pedersen’s and Wolfe’s (2009) study on Danish nitrate politics. Denmark is a highly instructive case from the German perspective because the two countries

• are both EU member states (and hence required to transpose the Nitrates Directive), • possess similar agricultural structures and • share a common legacy of productivity-oriented agricultural policies.

(Conrad, 1990; Daugbjerg, 1998; Rydén, 2007; Hölscher and Gehre, 2018).

Despite these similarities, however, Denmark has tackled aquatic nitrate contamination more resolutely than Germany (Hölscher and Gehre, 2018). Accordingly, Denmark has never been sued by the European Commission for non-compliance with the Nitrates Directive (European Commission, 2019b)

Unlike Schaub (2019), Green-Pedersen and Wolfe (2009) argue that under the right conditions, party- political polarization can be conducive to policy reform. Their reasoning is embedded in the Punctu- ated Equilibrium Framework (PEF), which scrutinizes precisely those factors which Schaub omits, namely the political mechanisms which enable or hamper policy change.

4.2 Punctuated Equilibrium Framework: Party Politics as a Source of Policy Change

Although Green-Pedersen and Wolfe (2009) do not reference cleavage theory explicitly, they note a divide in Denmark’s party system which corresponds with the cleavages identified in the previous chapter. While Denmark has never had a strong Green Party, the Social Democratic Party developed into a major advocate of environmental protection in the 1980s, including vis-à-vis the agricultural sector. Green Pedersen and Wolfe (2009) speak of Social Democratic issue ownership concerning the environment. Denmark’s principal centre-right-wing parties (Conservatives and Liberals), on the other hand, showed greater concern for economic growth and sought to shield farmers from additional regulation and taxation. Nitrogen discharges from the farming sector became central to the conflict about environmental protection between the post-exceptionalist political left and the exceptionalist political right (Goul Andersen, 1990; Daugbjerg, 1999; Daugbjerg and Svendsen, 2001; Green-Pedersen and Wolfe, 2009).

According to Green-Pedersen and Wolfe (2009), this party-political polarization drove Denmark’s ambitious agricultural policy reforms to mitigate nitrate pollution. To support their argument and conceptualize the policy process, the authors present a modified version of the Punctuated Equilibrium Framework, which will be described in the following paragraphs.

4.2.1 The Basic Features of the Punctuated Equilibrium Framework

The Punctuated Equilibrium Framework was developed by Frank R. Baumgartner and Bryan D. Jones (1993), based on the observation that long periods of stability and incrementalism (equilibria) alter- nate with shorter episodes of rapid and major changes (punctuations) in the policy-making process. The main driver of this political dynamic, according to the authors, is the bounded rationality of the

14 human mind and all forms of societal organization. In line with Herbert Simon (1997), they contend that humans are never able to perform complete cost-benefit calculations of any issue – let alone all issues – that concern them. Among other reasons, people have to make decisions based on incomplete information and can dedicate only limited attention to a given topic. Baumgartner and Jones (1993) argue that similar constraints characterize political systems, too. The political apparatus cannot simultaneously address all societal problems with the same intensity. Hence, issues drop off or at least far down on the political agenda over extended periods of time (Baumgartner and Jones, 1993).

In the agenda-setting literature which informs Baumgartner’s and Jones’ (1993) work, the political agenda has been defined as “the list of subjects or problems to which governmental officials, and people outside the government closely associated with those officials, are paying some serious attention at any given time” (Kingdon, 1995, p. 3). Agenda-setting is hence contingent upon political saliency. Scholars typically distinguish between the agenda of the political organs of the state (political agenda) and wider public agendas (e.g. reflected in media coverage) (Cobb and Elder, 1972). These agendas are often interrelated. Public attention can pressure the government or the parliament to deal with a subject matter, for example. Yet, according to the PEF, public attentiveness is no necessary precondition for political agenda-setting. Decision-makers may also embrace a topic in the absence of public mass mobilization or extensive media reports (Baumgartner and Jones, 1993; Mortensen, 2007).

Baumgartner and Jones (1993) note that while political attention vis-à-vis a subject is low, policy change is scarce and incremental. They attribute this lack of progress to the prevalence of so-called policy monopolies at the subsystem levels (i.e. in specific issue areas such as agricultural policy). Mo- nopolistic policy fields are characterized by one dominant policy understanding which defines

• what constitutes a policy problem worthy of government action and • how the identified policy problems should be addressed.

Baumgartner and Jones (1993) call these policy understandings, which rely on a mix of empirical information and value claims, policy images. Within the subsystem, policy images are being promoted by governmental and non-governmental actors with shared views and privileged access to the decision- making process. These monopoly holders use their leverage to promote their priorities, actively resist- ing any changes which could contradict their policy positions and threaten their privileges. In this manner, policy monopolies become an important source of policy stability (Baumgartner and Jones, 1993). Agricultural politics in Germany, Denmark and Europe in general has often been described as such a monopolistic field in the past, due to the close ties and shared exceptionalist policy views of certain (typically agrarian, conservative or Christian Democratic) political parties, agricultural administrations and farmers’ unions (Conrad, 1990; Daugbjerg, 1998; Sheingate, 2000; Greer, 2005; Rydén, 2007; Daugbjerg and Feindt, 2017; Tosun, 2017).

In order to move significantly beyond the status quo and tackle previously disregarded issue dimensions, a topic must attract heightened political attention i.e. raise from the subsystem level onto the macro-political agenda. The occurrence of major events (e.g. an environmental accident) or the accumulation of minor events can help raise awareness of long-neglected problems (Baumgartner and 15

Jones, 1993). In Denmark, the trigger which drew attention to the nitrate issue was a massive fish dieback caused by oxygen depletion in nitrogen-rich coastal waters in the late 1980s, for instance (Andersen and Hansen, 1991; Green-Pedersen and Wolfe, 2009)

Yet, further human agency is usually necessary to bring about change. Key to this endeavour, according to Baumgartner and Jones (1993), is a process of reframing. Reform-oriented actors challenge the prevalent policy image and seek to substitute it with their own, alternative set of premises about a problem and the path to its resolution (Baumgartner and Jones, 1993). In the Danish context, a novel (post-exceptionalist) policy image which regarded farmers not only as economic producers, but assigned them a responsibility for environmental protection as well, emerged from the coastal nitrate crisis (Green-Pedersen and Wolfe, 2009).

If the reframing efforts are successful, the previous monopoly-holders must give in to, or at least seek a compromise with their reform-oriented competitors. Alterations in both policy content and institutional arrangements follow from this pressure. On the one hand, novel policy measures which align with the emergent policy image are being adopted. In Denmark, ambitious ‘Action Plans on the Aquatic Environment’ which constrained agricultural practice were adopted after the coastal nitrogen crisis, for instance (Green-Pedersen and Wolfe, 2009). These would later become the national action programmes for the implementation of the Nitrates Directive (Nimmo Smith et al., 2007).

On the other hand, new institutional structures arise, forcing former monopoly-holders to share their power with competing actors – or renounce their privileges altogether (Baumgartner and Jones, 1993). In Denmark, the previous corporatist structures, which granted agricultural interests privileged access to the decision-making process, were abolished. The farmers unions did not lose their political influence altogether. Yet, the farmers’ involvement in the policy process was complemented by an additional inclusion of environmental organizations (Christiansen, 1999; Green-Pedersen and Wolfe, 2009).

The new balance of power and its supportive policy image remain in place even after the attention of the larger political system has once again drifted away from an issue (True, Jones and Baumgartner, 2007). They get “locked in” by the novel institutional arrangements (True, Jones and Baumgartner, 2007, p. 159). A new stable state has been reached, which differs significantly from the previous one and which persists until another external burst disrupts the policy field (Baumgartner and Jones, 1993).

4.2.2 The Role of Party Politics in the Punctuated Equilibrium Framework The Punctuated Equilibrium Framework has been successfully applied to numerous different policy fields and country contexts (John and Margetts, 2003; Pralle, 2003; Mortensen, 2005; True, Jones and Baumgartner, 2007; Baumgartner et al., 2009). Yet, scholars have remarked differences in the relevant mechanisms of change across political systems, notably between the United States on the one hand, and various European countries on the other hand (Albæk, Green-Pedersen and Nielsen, 2007; Walgrave and Varone, 2008; Green-Pedersen and Wolfe, 2009; Schiffino, Ramjoué and Varone, 2009).

The original PEF is modelled on the US political system and lies a strong emphasis on the role of so- called policy venues. Policy venues are institutional sites of authoritative decision-making 16

(Baumgartner and Jones, 1993, p. 32). The federal and presidential US polity features multiple different policy venues with overlapping jurisdictions, comprising inter alia the two chambers of Congress, the executive branch of government, the judiciary, and the fifty different states. On the one hand, this structure of ‘checks and balance’ can obstruct the adoption of new policies, e.g. in case of incompatible policy preferences between the executive and the legislature. On the other hand, the fact that political issues can often be handled simultaneously in different venues raises the prospects of policy reform. An emerging policy image which encounters strong rejection in the venue currently in charge of an issue may find more support within an alternative venue. And once a potent new policy venue embraces a topic, it can help further boost the novel policy image (Baumgartner and Jones, 1993). Baum- gartner and Jones (1993) call the deliberate appeal to favourable sites of decision-making venue shopping and consider it a key strategy for political actors striving for policy change. Correspondingly, Sheingate (2000) finds that a venue shift between the agricultural committee and the budget committee in the US Congress enabled major agricultural policy reform.

By contrast, scholars applying the Punctuated Equilibrium Framework to European countries lay a stronger emphasis on party politics as a mechanism of policy change (Albæk, Green-Pedersen and Nielsen, 2007; Walgrave and Varone, 2008; Breeman et al., 2009; Green-Pedersen and Wolfe, 2009; Schiffino, Ramjoué and Varone, 2009; Carter and Jacobs, 2014). Various reasons account for the greater role of party politics in European democracies, most notably

• a smaller number of policy venues, e.g. because the executive and the legislative are not neatly separated in the parliamentarian systems which characterize most European states, and because many European countries are unitary, rather than federal polities (Dieringer, 2008; Gabriel and Kropp, 2008; Green-Pedersen and Wolfe, 2009)1 • differentiated party systems with more clearly delineated party-political profiles, compared with the US (Baumgartner, Foucault and François, 2006; Niedermayer, 2008; Green-Pedersen and Wolfe, 2009; Schiffino, Ramjoué and Varone, 2009).

When issues rise on the political agenda of European democracies, this upsurge is typically related to a shift in party-political attention, according to various European PEF scholars (Albæk, Green-Pedersen and Nielsen, 2007; Green-Pedersen, 2007; Walgrave and Varone, 2008; Schiffino, Ramjoué and Varone, 2009). Parties are particularly likely to embrace issues which resonate with their political identity and existing lines of partisan conflict (Green-Pedersen, 2007; Green-Pedersen and Wolfe, 2009). While some scholars acknowledge that party-political profiles can change over time (e.g. in response to societal change or new coalition strategies) (Schiffino, Ramjoué and Varone, 2009; Schaub, 2019), partisan lines of conflict are generally conceptualized as fairly stable characteristics of a political system (Green-Pedersen, 2007; Green-Pedersen and Wolfe, 2009). Consequently, although not all PEF

1 In the US, by contrast, inter-institutional competition between different venues e.g. the executive and Con- gress or different state governments, is more likely and less closely related with party-political drivers (Baumgartner and Jones, 1993; Green-Pedersen and Wolfe, 2009). 17 scholars refer explicitly to cleavage theory, the partisan promotion of competing policy images can be conceptualized as an expression of party-political cleavages (Schiffino, Ramjoué and Varone, 2009).

Party-political cleavages featured prominently in Danish politics after the massive fish dieback in the late 1980s, for instance. The coastal nitrogen loading provided the Social Democratic Party, which was the largest opposition party at the time, with an opportunity to attack the centre-right government and buttress their own environmental party profile. Hence, in the context of their general promotion of a post-exceptionalist agricultural policy approach, the Social Democrats began to pressurize the government to reduce the nitrogen releases of the farming sector (Andersen and Hansen, 1991; Green- Pedersen and Wolfe, 2009).

The PEF literature suggests that the success of reform-oriented parties is contingent upon their leverage within the respective political system. In particular, partisan control over the relevant policy venues helps explain policy change or stability (Green-Pedersen, 2007; Schiffino, Ramjoué and Varone, 2009; Bandelow, Hartmann and Hornung, 2019). The Danish example illustrates the importance of the party-political composition of the government and the legislature. In the 1980s, Denmark was run by minority coalition governments consisting of several centre-right parties. The conservative and liberal parties which dominated these coalitions were largely focused on agricultural productivity. For their policy projects, these parties depended on the support of two different-minded parties, however. The Christian Democrats and the Social Liberals were alternately part of the executive or opposition parties tolerating the minority government in the 1980s. And both of them demanded environmental action on the nitrate issue. Coupled with the pressure from the oppositional Social Democrats, this situation forced the governing Conservatives and Liberals to adopt Denmark’s first Action Plan on the Aquatic Environment – despite vehement resistance by agricultural interest groups (Andersen and Hansen, 1991; Green-Pedersen and Wolfe, 2009). In short, Denmark’s policy change was driven by party-political cleavages and the veto power of reform-oriented parties.

While minority governments are only common in certain European countries (excluding Germany), coalition governments are widespread in Germany and across Europe, generating a steady need for cross-partisan cooperation (Kropp, 2008; Field, 2016). Besides, the federal structures of some Euro- pean countries (including Germany) can force parties to work together, e.g. if the two chambers of parliament representing the federal and the state level have different party-political majority ratios (Bandelow, Hartmann and Hornung, 2019). Yet, PEF scholars find that the need for collaboration across different-minded parties does not necessarily stimulate policy reform. It can also lead to deadlock due to unsurmountable differences or efforts by governing parties to keep topics which divide the coalition off the political agenda (Varone, Patrick Stouthuysen and Schiffino Nathalie, 2005; Walgrave and Varone, 2008; Schiffino, Ramjoué and Varone, 2009).

If reform-oriented parties hold a majority in all relevant policy venues, on the other hand, major policy progress can be expected with greater likelihood. In Denmark’s unitary parliamentarian democracy, environmentally-oriented centre-left parties formed a majority government under Social Democratic leadership in the 1990s, for instance. During this time, water protection ambitions were further

18 augmented, and environmental organizations were included in environment-related agricultural policy-making (Christiansen, 1999; Green-Pedersen and Wolfe, 2009). When a liberal-conservative majority government took office in the early 2000s, in turn, this coalition curtailed environmental policy, in line with its economic priorities (Goul Andersen, 2003).

Another noteworthy finding of the PEF literature is the fact that parties might address topics not only to boost their own political profile, but also to prevent reputational gains of their opponents. Carter and Jacobs (2014) find that in the 2000s, the UK’s three largest parties all came to endorse climate action. None of the parties could claim climate consciousness to be their unique quality but they all tried to out-compete their rivals on the climate topic. Somewhat different, but still related dynamics unfolded in Denmark. The right-wing opposition criticized many environmental regulations and taxes targeting the farming sector which the centre-left government proposed in the 1990s. Simultaneously, however, the opposition avoided an open political conflict on environmental issues, fearing that this might benefit the government’s credentials vis-à-vis this subject matter. In 1998, the Liberal Party supported a new, tightened Action Plan on the Aquatic Environment for example (Daugbjerg, 1999; Green- Pedersen and Wolfe, 2009; Danish Environmental Protection Agency, 2010). And although the liberal- conservative government which took office in the early 2000s did curtail environmental policy, it tried to avoid environment-related attacks of its political opponents to preserve its public support (Goul Andersen, 2003; Green-Pedersen and Wolfe, 2009). In 2009, the centre-right government adopted the so-called Green Growth Agreement, which aimed at a further reduction of agricultural nitrogen emissions and restricted farming practices for this purpose, for instance (Danish Environmental Protection Agency, 2010).

In summary, the above stated PEF literature suggests that inter-party competition is key to understanding politics, at least in the European context. Driven by political cleavages and the goal to surpass their rivals, parties set topics onto the political agenda. They seek to frame policy issues in line with their policy preferences and use their political leverage to foster or block policy change. Policy processes remain nonetheless complex and context-dependent, which makes their outcome difficult to predict. However, a look at the number and types of parties, their political priorities and influence, helps explain policy output.

4.3 Party Politics and the National Transposition of European Directives

In recent times, party politics has also received substantial attention by scholars investigating the national implementation of EU law (Haverland, 2000; Treib, 2003, 2014; Bähr, 2006; Mastenbroek and Kaeding, 2006; Spendzharova and Versluis, 2013). This scholarly interest grew out of the realization that earlier explanatory frameworks underrated the influence of national political factors on member state compliance with European provisions (Treib, 2014).

Researchers in this new field do not consider party politics to be the only relevant influence factor affecting national policy output. Civil society and public opinion can have major impact on the national policy process as well, e.g. by influencing the choices of decision-makers. However, parties stand out

19 because of their sway in the formal arenas of decision-making (Treib, 2003; Sedelmeier, 2009; Avdeyeva, 2010; Spendzharova and Versluis, 2013; Vogeler, 2019). Party politics is particularly important for national transposition processes if EU directives touch upon subject areas concerning which parties hold strong and opposing views (Treib, 2003; Bähr, 2006).

In the party-oriented EU implementation research, European legal provisions are considered as one input factor into national political dynamics which is being processed according to the goals and priorities of domestic parties (Treib, 2003, 2014). This understanding of the relation between EU law and national politics resonates with existing studies building upon the PEF. Green-Pedersen and Wolfe (2009) acknowledge the growing influence of the European Union on environmental policy in Den- mark, for example, but emphasize that this development has not superseded the role of domestic party politics. Carter and Jacobs (2014, p. 136) call the EU a “a major external policy driver” for climate protection in the UK. Simultaneously, however, the two authors describe the EU as one policy venue besides several domestic ones, and emphasize the strategic national considerations which encouraged the British parties to address the climate issue (Carter and Jacobs, 2014).

Conrad’s (1990) work on German nitrate politics concentrates less on the role of political parties, but it also suggests that EU implementation pressure influences domestic policy processes without fully determining them. According to the author, the European Drinking Water Directive of 1980, which set legal thresholds for permissible nitrate concentrations in drinking water (and hence can be considered a predecessor of the Nitrates Directive), exercised a “trigger effect” on debates and policy initiatives concerning the nitrate issue in Germany (Conrad, 1990, p. 340). The European Commission insisted on the compliance with this directive and threatened Germany with a lawsuit in front of the European Court of Justice. This European pressure boosted domestic policy-makers and interest groups with a primary concern for water protection (Conrad, 1990).

In line with the Punctuated Equilibrium Framework, various EU implementation scholars have uncovered causal relationships between the policy positions and political leverage of parties on the one hand and the domestic policy output on the other hand. Treib (2003), Toshkov (2008), Avdeyeva (2010) Sedelmeier (2009) as well as Spendzharova and Versluis (2013) find that the partisan composition of the government matters for the timeliness and adequacy with which EU directives are being transposed. If the governing parties hold favourable policy positions vis-à-vis the content of EU law, transposition tends to be faster and more adequate. Even profound reform process might be executed with relative ease, up to the point of overcompliance, if the European requirements correspond with the party-political preferences of the executive. By contrast, even in the context of an already close fit between EU and national law, the required minor adjustments at the member state level might be resisted for party-political reasons (Treib, 2003).

Within the government, ministers in charge of the policy field affected by EU directives play a decisive role. These ministers possess informational advantages and the exclusive right to initiate the implementation process – privileges which they use to further their party-political priorities (König and Luig, 2014). Hence the partisan affiliation of responsible ministries can have a major impact on the 20 correctness and timeliness with which EU law is being transposed (Treib, 2003; König and Luig, 2014). In the case of coalition governments, parties that control a ministry have a greater sway over a policy field than their coalition partners, although the latter might try to rectify this imbalance with the aid of their policy experts in the legislature (Martin and Vanberg, 2004; Kim and Loewenberg, 2005; Abels, 2013; Höhmann and Sieberer, 2020).

In general, unlike Green-Pedersen and Wolfe (2009), the EU implementation literature points to the need for cross-partisan agreement as an impediment to member state compliance. Coalition governments can be a source of delay and deficient transposition in case of disagreement between the governing parties (Treib, 2003; Toshkov, 2008). Moreover, Haverland (2000) Giuliani (2003), Weale et al. (2002) and Bähr (2006) note that transposition processes can be hampered (both time- and content- wise) if different parties control different national policy venues (or, in their language, institutional veto points) and have strong and competing policy positions on the subject matter.

The number of policy venues, in turn, is not only a function of the general constitutional setup of a country (e.g. its federal or unitary structure), but also dependent on the specific legislative pathway through which EU provisions are translated into national law. A directive might be transposed via a law requiring parliamentary approval or a governmental decree which only needs consent from within the executive, for instance. Transposition paths can vary across countries and sectors, and determine the political leverage of national actors in control of different policy venues (Steunenberg, 2006).

The role of party politics in relation with the Nitrates Directive has not yet been explored in the EU implementation literature. In fact, the political processes underlying the transposition of this directive have hitherto received little scientific attention whatsoever. Some scholars blame the vague and flexible stipulations of the Nitrates Directive for the deficient implementation in many member states (Nimmo Smith et al., 2007). Others point to the difficulty of bringing intensive agricultural production systems and productivity-oriented agricultural policy approaches into line with the goals of water protection (Grossman, 2000; Kirschke et al., 2019). These arguments do not explain differences in compliance between member states – including those with similar agricultural production systems, however.

Those few researchers who take a somewhat closer look at the transposition process recognize the priorities of national policy-makers as an important influence factor to explain (non-) compliance with the Nitrates Directive (Palacios, 1998; Grossman, 2000; Nimmo Smith et al., 2007). Grossman (2000, p. 628) notes “the reluctance of some Member States to implement the Nitrates Directive”, for instance, given the costs which the required measures would cause for farmers. Nimmo Smith et al. (2007, p. 140) speak of a “strong political will” – coupled with an environmentally conscious society – to account for Denmark’s comparatively ambitious implementation of the Nitrates Directive. Con- versely, these authors suggest that England’s delayed transposition of the directive was politically intentional (Nimmo Smith et al., 2007). Finally, Palacios (1998) argues that Spain’s slow policy implementation was not only due to an unclear distribution of competencies across government levels, but also due to a low political saliency of aquatic nitrate pollution. The agricultural minister ascribed the issue

21 a subordinate importance, and perceived the Nitrates Directive primarily as an “imposition from northern European countries” which did not suit the Spanish context (Palacios, 1998, p. 153).

These observations from the EU implementation literature, coupled with Schaub’s (2019) and Green- Pedersen’s and Wolfe’s (2009) insights, suggest that it is worthwhile to analyse Germany’s de jure implementation of the Nitrates Directive through the lens of party politics, as parties are central to the formation of ‘political will’.

4.4 Integrated Conceptual Model

Figure five integrates the key findings of the literature presented on the preceding pages into a conceptual model. This model comprises the theoretical assumptions about the role of party-politics during the German transposition of the Nitrates Directive which guide my empirical research. In line with cleavage theory, I conceptualize the German party system as being divided between two camps, namely post-exceptionalists and state interventionists on the one hand, and exceptionalists and market liberals on the other hand. External input in the form of national events (such as the fish kill in Denmark) or European pressure to comply with the Nitrates Directive can ‘activate’ the ideological divides between the two camps. The reform-oriented post-exceptionalists turn their attention to the nitrate issue and start challenging the status quo-oriented policy image of the exceptionalists. Subse- quently, the two sides engage in a struggle of (re)framing, aimed at furthering their policy views and preferences. The exceptionalists might either reject the demands of their opponents altogether to boost their economic reputation, or accommodate these demands to some extent, to prevent reputational gains of the environmentally-oriented parties.

The outcome of this struggle is contingent upon the distribution of power between the two sides, which is driven by the party-political composition of the relevant policy venues. Two factors determine the number and type of relevant policy venues, namely

1) the constitutional distribution of power, e.g. whether nitrate policy is by law a joint compe- tency of the federal state and the bundesländer and 2) the concrete transposition pathway chosen by the government to implement the Nitrates Di- rective.

The party-political composition of the policy venues, in turn, is a function of the electoral results and the coalition negotiations between the parties. Depending upon these sources of party-political influence and the success with which the two camps use it to further their policy priorities, the party-political contest might lead to a timely or delayed, a proper or inadequate transposition of the Nitrates Directive. This conceptual model will be used to scrutinize each round of policy-making underlying the German de jure implementation of the Nitrates Directive.

Party system

Catalysts of policy reform attract challenge political • National events e.g. attention generates Policy output environmental dis- • Timely/delayed transposi- asters Post-exceptionalist & Exceptionalists & tion of the Nitrates • Legal obligation to state interventionists market liberals Directive comply with EU law • (In)adequate transposition and implementation of the Nitrates Directive pressure by the Eu- resist/accommodate ropean Commission

determines the political leverage of individual parties

Party-political composition of relevant policy venues

Factors which determine the type and number Factors which determine the party-political com- of relevant policy venues position of the relevant policy venues • Constitutional distribution of power • Electoral results • Chosen transposition path • Coalition formation: - Selection of coalition partners - Distribution of ministries

Fig. 5 Integrated Conceptual Model of the Policy Process Underlying the German Transposition of the Nitrates Directive (Own Compilation, Based on the Previously Presented Literature) 23

5. Methods 5.1 Research Design My research design consists of a case study of nitrate policy-making in Germany over a time span of twenty-seven years (1991-2018). It follows a mixed methods approach combining qualitative and quantitative research techniques. Greater detail about my research design (5.1), as well as the utilized data collection (5.2.) and data analysis strategies (5.3) will be provided in the following chapter.

From an empirical angle, Germany was selected as a worthwhile study case due to the country’s out- standingly poor implementation record concerning the Nitrates Directive. Based on the regular comparative nitrate reports compiled by the European Commission (2007, 2011, 2013, 2018) and following a typology by Yin (2017), one can categorize Germany as a suitable object of study because it is an extreme case in terms of the national implementation of this European directive.

According to Hartley (2004, p. 323), case study research "consists of a detailed investigation, often with data collected over a period of time, of phenomena within their context. The aim is to provide an analysis of the context and processes which illuminate the theoretical issues being studied". Thus, case study research embraces the complexity of individual cases and – despite being guided by theoretical reasoning – leaves room to contemplate new and unexpected information (Bennett, 2004). This research approach suits my scientific inquiry because I am striving for a deeper understanding of German nitrate politics, which has hitherto received little scholarly attention.

In line with the PEF, I conducted a longitudinal study. A long-term perspective permits the researcher to follow the evolution of political agendas, policy understandings and political contexts across time (Baumgartner and Jones, 1993). A longitudinal research design is particularly useful to trace the implementation of the Nitrates Directive in Germany because

• non-compliance resulted not only from violations of the directive’s basic provisions, but also from the lack of timely follow-up policy action when the goals of the directive were missed, • Germany revised its NAP several times, • each revision process took place over the course of several years and • party political majorities changed repeatedly over the course of the last three decades.

In the light of these empirical conditions, a longitudinal study allows me to compare the different revision processes and the intervals of policy stability in between in search of key features of German nitrate policy-making. The exact time period for my inquiry was chosen on the basis of empirical facts. April 1991 forms the starting point of my investigation because the German parliament (Deutscher Bundestag) discussed the German Fertilization Ordinance for the first time in this month. June 2018 marks the end of the analysed period because in this month, the ECJ passed its second judgment on Germany’s violation of the Nitrates Directive. Evidently, nitrate policy-making in Germany continued subsequent to this verdict. Since the political negotiations were still ongoing while I conducted my research, however, my thesis abstains from an analysis of post-June 2018 events. As mentioned above,

24 my research thus centres around the question of why Germany failed to produce timely and sufficient policy outputs to conform with the legal provisions of the Nitrates Directive by mid-2018.

In terms of ontology and epistemology, my thesis follows a critical realist tradition, which occupies an intermediary position between positivism and interpretism. Realists assume that an objective reality independent of the human mind does exist (Marsh and Furlong, 2002). At the same time, however, they argue that the world is “only imperfectly apprehendable because of basically flawed human intellectual mechanisms and the fundamentally intractable nature of phenomena”(Guba and Lincoln, 1994, p. 110). This fact makes reality open for social interpretation – and the ways in which humans interpret the world around them affects social outcomes (Marsh and Furlong, 2002). Accordingly, realism contends that “[we] need to identify both the external ‘reality’ and the social construction of that ‘reality’ if we are to explain the relationships between social phenomena” (Marsh and Furlong, 2002, p. 31). This perspective is highly compatible with the theoretical thinking which guides my thesis (PEF and cleavage theory), with its emphasis on bounded rationality, ideological divisions between political parties and value-laden policy images which help people make sense of their environment (Baumgartner and Jones, 1993; Schaub, 2019).

In line with this ontological and epistemological understanding, my thesis seeks to approach objective realities encapsulated in the empirical data, while paying close attention to the social interpretation of past events and circumstances by the political actors involved in German nitrate politics. Evidently, in many instances, ‘objective facts’ and ‘subjective understandings’ cannot be easily separated. Given the pervasiveness of social interpretation, critical realists argue that “claims about reality must be subjected to the widest possible critical examination” (Guba and Lincoln, 1994, p. 110). In order to heed this recommendation and control my own subjectivity as a researcher, my empirical work relies on data triangulation. Different sources are used to gain more data and verify the gathered information.

An additional means to enhance the quality of my empirical findings is methodological triangulation, i.e. the combination of qualitative and quantitative research techniques. Such a mixed methods approach can remedy the limitations of purely qualitative or quantitative research designs by capitalizing on the best of both worlds (Flick, 2015). In my case study, quantitative methods help provide a larger, general overview of the policy process, while qualitative methods enable a more thorough understanding of political positions, actors, events, structures and dynamics. Both triangulation techniques strengthen the validity and reliability of the empirical findings (Bush, 2002; Golfashani, 2003) and are commonly used in the PEF literature (Walgrave and Varone, 2008; Green-Pedersen and Wolfe, 2009; Carter and Jacobs, 2014; Mondou, Skogstad and Houle, 2014; Rychert and Wilkins, 2018; Thorn, 2018). The following two chapters explain my data collection and analysis strategies in greater detail to enhance the transparency and replicability of my scientific endeavour.

5.2. Data Selection and Collection

The empirical work of this thesis has been conducted on the basis of publicly available, written documents. Documents as a data source possess several advantages which were deemed important in the

25 context of my research. First, they can provide exact and wide-ranging information about the past (Yin, 2017). This characteristic of documents served my research design due to the long time span under investigation. Second, document analysis is an unobtrusive and non-reactive research procedure i.e. it does not affect the genesis of the data (Bowen, 2009). In the light of the current public controversy about aquatic nitrate contamination, the results of interviews could have been distorted by social de- sirability effects, for example (Bryman, 2012). My reliance on documents ensured that past events were not reinterpreted retrospectively. Third, all needed documents could be accessed online, either directly or upon personal request. The following paragraphs outline how I selected and collected the utilized data.

To start with, I decided to include the Fertilization Ordinance as the keystone of the German NAP in my data basis. An analysis of this ordinance in its different versions across time was intended to trace the evolution of the national policy output during the transposition of the Nitrates Directive. The Fer- tilization Ordinances of 1996, 2003, 2006 and 2017 could all be retrieved online from the public gazette ‘Bundesgesetzblatt’2 which is published by the Federal Ministry of Justice. Additionally, I consulted the documentation and information system of the Deutsche Bundestag (DIP), which provides detailed information about the legislative process in Germany. I used the DIP’s search engine ‘Beratungsabläufe’ (legislative consultation procedures)3 to collect the legal drafts of the Fertilization Ordinance and the motions which the bundesländer prepared in relation to this ordinance. The final policy output could thus be compared with the initial policy suggestions.

Next, I gathered background information about the formal policy process underlying Germany’s transposition of the Nitrates Directive. My online search generated six useful government reports (environmental reports/impact assessments/nitrate reports) which illuminate this policy process (BMU and BMELV, 2008, 2012; BMEL, 2016; BMUB, 2016; BMUB and BMEL, 2016; UBA, 2018b). Furthermore, I included the two judgements of the European Court of Justice in my empirical data basis because these documents describe the entire litigation process – from the first admonition by the European Commis- sion to the final verdict – and hence reveal how Germany reacted to the European implementation pressure. The judgements could be searched and downloaded from the website of the European Court of Justice4.

Additionally, due to my interest in the role of political parties during the transposition of the Nitrates Directive, I inquired into the party-political composition of the central decision-making bodies across time. Besides the federal government, the Bundestag and the Bundesrat, I took account of the partisan leadership of the agricultural and environmental ministries. Information about the party-political

2 https://www.bgbl.de

3https://dipbt.bundestag.de/dip21.web/searchProcedures.do;jses- sionid=715FD74C80A17D5C05774529F4A5EDB8.dip21

4 https://curia.europa.eu/jcms/jcms/j_6/en/ 26 composition of the different decision-making bodies and governmental departments could be accessed directly via the websites of the Bundestag or upon personal request.

Based on this background information, I approached the main data source of my thesis, namely records of legislative activities generated by the two bodies of the German legislature (Bundestag and Bundes- rat). This data takes the form of

• protocols of debates in the Bundestag and Bundesrat, • interpellations (in which deputies or parliamentary groups address questions to the government) and the government replies to these5, • motions (both by parliament groups and the state governments) as well as • reports of sessions by the parliamentary committees

This data provides comprehensive information about the formal policy process and unmediated access to party-political views and preferences (Green-Pedersen, 2007; Omar, 2008; Abercrombie and Batista-Navarro, 2020). The speaking time allocated to all parties in the legislature (Deutscher Bundestag, 2020b) ensures sufficient empirical data about each political group. All legislative data was retrieved via the search engines of the Deutsche Bundestag and the Deutsche Bundesrat6. In order to gather relevant documents for the investigation period (April 1991-June 2018), two complementary search terms focusing on either the policy problem or the policy response, i.e. *Nitrat* (nitrate) and *Düngeverordnung* (Fertilization Ordinance), were used.

My initial research revealed that aquatic nitrate contamination and the implementation of the Nitrates Directive had rarely been stand-alone items on the parliamentary agenda, or the sole subject of interpellations and motions, over the course of the last decades. Concentrating on legislative proceedings which deal exclusively with this subject matter would thus have generated an insufficient empirical data basis. However, my preparatory investigations showed that many documents with a more general topic (e.g. agricultural policy reform) contained valuable information about political processes and viewpoints of different actors concerning aquatic nitrate pollution and the implementation of the Ni- trates Directive. For that reason, out of the results which the two search engines yielded, I selected all protocols, motions, interpellations and committee reports which touched upon

• aquatic nitrate contamination from agricultural sources and/or • government action to address this issue via the Fertilization Ordinance/ the national transposition of the Nitrates Directive.

5 Interpellations come in multiple different types i.e. as more or less comprehensive sets of questions to which the government replies in written form (“Große Anfrage” or “Kleine Anfrage” (major or minor interpellations)) and oral and written questions which the government answers orally in parliament (“Schriftliche Frage” or “Mündliche Frage” (written or oral interpellations)).

6 https://www.bundestag.de/dokumente/ for the Bundestag (search engine “Drucksachen und Plenarproto- kolle des Bundestages – ab 1949“) and https://www.bundesrat.de/DE/dokumente/dokumente-node.html for the Bundesrat (search engine “Parlamentsdokumente”). 27

These inclusion criteria created a data basis of 292 documents.

5.3 Data Analysis

For my empirical data analysis, I relied on both quantitative and qualitative techniques. Whereas the quantitative analysis helped paint a larger, yet more superficial picture, the qualitative analysis enabled a more thorough examination of the textual material. At the heart of the analysis stood qualitative and quantitative content analysis. Content analysis is “an empirical method for systematic, inter-sub- jectively transparent description of substantial and formal features of messages” (Früh, 1991, p. 25; translated into English by Flick, 2015). This method was complemented by some other analytical techniques, all of which will be presented in the following two chapters.

5.3.1 Quantitative Data Analysis

I started out my data analysis by establishing an overview of the party-political composition of the Bundesrat during the transposition of the Nitrates Directive. Based on tables provided by the Bundes- rat which show the governmental composition and number of voting rights of the individual bun- desländer, I calculated the majority ratios in the Bundesrat across time (see appendix A for an overview of the results). These majority ratios could then be juxtaposed with existing data on the composition of the federal government and the Bundestag (Deutscher Bundestag, 2019, 2020a).

Subsequently, I conducted a quantitative content analysis to trace the evolution of aquatic nitrate contamination and the implementation of the Nitrates Directive as topics on the German political agenda over the course of the last three decades. Quantitative content analysis “is an approach to the analysis of documents and texts that seeks to quantify content in terms of predetermined categories and in a systematic and replicable manner” (Bryman, 2012, p. 290). In the PEF literature, quantitative content analysis is typically conducted in the form of topic coding (Baumgartner et al., 2009). Scholars study their empirical data on a very general level by defining entire documents as analytical units and examining whether these documents address topics of interest to the researchers (Baumgartner and Jones, 1993; Green-Pedersen and Wolfe, 2009; Breeman and Timmermans, 2017). In order to measure how issues rise and fall on the political agenda, Baumgartner and Jones (1993) count how many times the issues under discussion become the subject of U.S. congressional hearings. Other PEF scholars have adjusted this indicator of political attention to their investigated subjects and political contexts. Instead of congressional hearings, they count the number of issue-related executive speeches (Breeman and Timmermans, 2017) or a range of parliamentary activities such as bills, interpellations, debates and governmental questioning hours, for example (Green-Pedersen, 2004).

Schaub (2019) conducts a quantitative content analysis inquiring into the share of electoral manifestoes mentioning agricultural pollutants in water bodies between 1998 and 2018. His analysis was deemed insufficient for the purpose of this thesis, however, because it is not specific enough to my research focus on aquatic nitrate contamination and does not cover the entire implementation period of the Nitrates Directive. Besides, in line with Green-Pedersen and Wolfe (2009), I considered it worthwhile to relate my empirical research more closely to the actual policy-making process (rather than 28 focusing on electoral manifestoes, which parties only develop once every four years, and which are rather general in nature). On that account, my thesis operationalizes political attention in relation to the agenda of the bicameral German legislature. Based on the data which I had gathered from the search engines of the Bundestag and Bundesrat, I calculated the number of

• debates, • interpellations, • motions and • committee sessions which addressed aquatic nitrate contamination and the transposition of the Nitrates Directive in the Bundestag and Bundesrat between April 1991 and June 2018.

Descriptive statistics was used to depict the results of the calculation in a two-dimensional diagram featuring frequency and time (see chapter 6.3). Like Schaub (2019), who differentiates between the manifestoes of different parties, I was particularly interested in the saliency of the nitrate issue among individual parties. Accordingly, the legislative activities were also classified according to the party which brought the nitrate topic into the political debate (e.g. by formulating a motion, initiating an issue-specific parliamentary debate or discussing the topic in a more general parliamentary debate).

5.3.2 Qualitative Data Analysis

Qualitative content analysis stood at the centre of the qualitative examination of my empirical data. Compared with its quantitative counterpart, qualitative content analysis studies the content of textual material more closely in order to produce a deeper understanding of the investigated phenomena (Downe-Wamboldt, 1992). Such an analytical ‘zoom in’ was considered useful for my research because it allowed me to gain more detailed knowledge of the policy positions and political processes related to aquatic nitrate contamination in Germany.

Hsieh and Shannon (2005, p. 1278) define qualitative content analysis “as a research method for the subjective interpretation of the content of text data through the systematic classification process of coding and identifying themes or patterns”. This definition indicates that in line with critical realism, qualitative content analysis assumes that the world becomes subject to social interpretation – including by researchers studying social phenomena. While acknowledging that researcher subjectivity cannot be completely eliminated from data analysis, I sought to control it through a systematic and transparent analytical procedure. Qualitative content analysis provided crucial assistance in the pursuit of this goal. While being open to complex and surprising empirical data, it structures the data analysis through its connection to theory and its reliance on methodological rules (Kohlbacher, 2006). The main features of my qualitative content analysis shall be described in the following.

In line with the usual methodological set-up of qualitative content analysis (Flick, 2015), coding lay at the heart of my data analysis. "Coding represents the operations by which data are broken down, conceptualized, and put back together in new ways” (Strauss and Corbin, 1990, p. 57). Saldaña (2013)

29 summarizes the central coding steps, which were also carried out in the context of my thesis, as follows. After the relevant sampling material has been determined, texts are first being disaggregated into smaller units of analysis. These units are being assigned a code, “a researcher-generated construct that symbolizes and thus attributes interpreted meaning” to the respective unit (Saldaña, 2013, p. 4). Subsequently, the codes are being utilized for various analytical purposes such as pattern detection, categorization or theory building (Saldaña, 2013). In the case of my research, coding was carried out with all documents termed legislative activities in the preceding chapter (i.e. parliamentary debates, interpellations, motions and committee sessions). The units of analysis were text passages with a length of one (half) sentence or a few sentences.

Coding for this thesis was performed on the basis of both deductive and inductive reasoning. Deduc- tively, I used the theoretical and empirical literature presented in chapter 4 to identify relevant aspects of policy-making to look out for in the empirical material. Theoretical concepts like policy image or policy venue did not translate directly into codes but formed the overarching ideas which inspired my coding exercise. Inductively, I developed the concrete codes from the empirical data itself and structured them into a cohesive coding scheme which conveys patterns in both policy positions and policy processes. The construction of this coding scheme evolved in an iterative manner. During a first run through the empirical material, I marked relevant text passages and noted tentative codes, which were revised during subsequent examinations of the data. In line with instructions by Eisenhardt (1989), the empirical findings were constantly compared with the theoretical underpinnings of my research, so as to ensure a close correspondence between theory and data.

Following the practice of Mondou, Skogstad and Houle (2014) in their operationalization of the PEF, I coded the selected text extracts in terms of both content and authorship. ‘Authors’ of statements were categorized according to their partisan affiliation. This strategy enabled me to trace political processes as well as policy positions of the different parties represented in the federal government, the Bundes- tag and the Bundesrat. It made my research particularly apt to complement the work of Schaub (2019), who conducts his qualitative content analysis of electoral manifestoes differentiated by parties.

While coding text segments in terms of the partisan affiliation of their authors, I focused on the five political groups which have dominated the German party system during the last three decades. These are the CDU/CSU, the SPD, Bündnis 90/Die Grünen, the FDP and DIE LINKE. Small parties without a steady representation in the German legislature between 1991 and 2018 were excluded from the analysis due to their low and at best indirect influence on nitrate policy-making, and the limited empirical data basis which could have been gathered about any of them. The exclusion pertains also to the right- wing party AfD, which has recently become an important political actor in Germany. This party only entered the German national parliament in October 2017 (i.e. after the most recent amendment of the Fertilization Ordinance) and has so far not been part of any state government (Deutscher Bundestag, 2020a; information provided by the Bundesrat upon personal request).

In my coding activities, I relied on the software programme for computer-assisted qualitative data analysis MAXQDA. With the aid of this programme, I developed a consistent set of clearly defined

30 codes over the course of several rounds of coding. The gathered empirical data was later structured into excel spreadsheets (see empirical data complements to this thesis). In order to enhance intersub- jectivity and reliability, I discussed the envisaged codes intensively with fellow students once I had developed a first draft scheme. For this purpose, concrete text passages which I considered to be am- biguous and the codes which I had assigned them were shared with my peers. The comments which my peers provided were given serious thought and contributed to the refinement of my codes. An overview of all utilized codes can be found in appendix C.

One type of data from the legislative documents that was not compartmentalized into codes are comments on specific policy measures. Instead, I analysed such statements together with the legal drafts and final versions of the Fertilization Ordinance. The analysis of the legal suggestions and final bills occurred as follows. First, I sorted out all regulations within these drafts or acts which were relevant for aquatic nitrate pollution (excluding e.g. paragraphs dealing with certain other substances released by agricultural production such as phosphorus) and translated these into English. Subsequently, I structured them into tables which show how the policy suggestions evolved over time and finally translated into legally adopted policy output. These tables allowed me to assess how the policy proposals of different parties at the state and federal level, and the environmental and agricultural committee in the Bundesrat related to each other and whose preferences were eventually adopted. It was also a means to corroborate and supplement information about the policy positions of the individual parties gathered through the coding exercise (e.g. to check whether emphases on the severity of aquatic nitrate pollution were accompanied by demands for concrete, strict policies).

Finally, I merged data from the legislative activities, the governmental reports, the legal drafts and the ECJ verdicts with information about individual events in the policy process to design a timeline (see appendix B). This timeline was meant to reconstruct the entire transposition process of the Nitrates Directive chronologically and help explore whether concrete events correlated with an increase in party-political attention to the nitrate issue.

6. Results

The following chapter presents my empirical results. Governmental reports, laws and court verdicts will be referenced according to the common scientific practice which is also followed in the other parts of my thesis. Legislative activities will be referenced with the name of the party who made the statement (if relevant), the type of document in which the statement appeared and the date of appearance of this document (in the case of interpellations, motions and written government replies) or the date when the respective legislative debate took place (e.g. SPD motion 05.10.1995; CDU/CSU Bundestag debate 23.12.2012; Bundestag debate 28.06.2018). If a statement was made by the representative of a regional branch of a party, an abbreviation of the respective bundesland is provided as well (e.g. SPD (RLP) Bundesrat debate 29.01.2016). Legal drafts will be referred to by means of the document number (e.g. BR-Drucks. 402/95). A list of all legislative documents and legal drafts used for the analysis can be found in the references.

In the following, I will first make some general observations about the decision-making structures during the transposition of the Nitrates Directive (6.1) as well as the relevant political parties in German nitrate politics and their policy positions vis-à-vis the nitrate issue (6.2) before I discuss these different rounds of nitrate policy-making (6.3).

6.1 Decision-Making Structures during the Transposition of the Nitrates Directive in Germany Throughout the last three decades, the transposition of the Nitrates Directive in Germany was a shared policy task across governmental levels and policy fields. Horizontal power sharing meant that the government’s draft bills were negotiated between the federal ministries of agriculture and the environment. Besides, these two ministries jointly released the periodic reports on the state of national aquatic nitrate contamination (‘nitrate reports’) with which the German state fulfilled the monitoring requirements of the Nitrates Directive (BMU and BMELV, 2008, 2012; BMUB and BMEL, 2016). Because the transposition of the Nitrates Directive in Germany occurred by means of ordinances (i.e. executive orders), approval by the federal parliament was not required for these legal acts to enter into force (Deutscher Bundestag, 2020c). The role of the opposition parties in the Bundestag was therefore con- fined to parliamentary oversight, e.g. government questioning about the policy process, public criticism and non-binding policy suggestions.

In terms of vertical power-sharing, the federal government needed the approval of the Bundesrat for its draft laws. This rule reflects the responsibility of the German bundesländer for the de facto implementation of the Nitrates Directive (BMEL, 2016). Within the Bundesrat, in turn, policy suggestions by the federal government were scrutinized by both the environmental and the agricultural committee (where the environmental and agricultural ministers of the states convene). These two committees were not only authorized to comment on the government’s legal drafts – they could also formulate alternative regulations, which were then negotiated with the government.

6.2 Party-Political Lines of Conflict concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive My research results show that throughout the implementation of the Nitrates Directive, all five major parties recognized aquatic nitrate contamination as an environmental problem worthy of government action (DIE LINKE Bundestag debate 06.09.1994; FDP Bundestag debate 26.01.1995; Bündnis 90/Die Grünen motion 12.11.2008; SPD motion 27.06.2012; CDU/CSU agricultural committee report 27.06.2017). However, contrasting evaluations persisted concerning the severity of this environmental problem and the desirable policy measures to address it. This dissent materialized primarily between the CDU/CSU and the FDP on the one hand, and the SPD, Bündnis 90/Die Grünen and DIE LINKE on the other hand. The following paragraphs present an overview of the party-political positions concerning the nitrate issue; the accompanying tables two and three summarize the key findings. A more detailed overview of the parties’ position is provided in appendix C.

In terms of problem understandings, one position which I call ‘environmental optimism’ and which was voiced by the CDU/CSU and the FDP, discounted the severity of the situation. The Christian Dem- ocrats argued that aquatic nitrate contamination was only a problem in certain regions, rather than across the country, for instance (CDU/CSU governmental reply 25.02.2005 + 17.04.2013 committee report). Moreover, the CDU/CSU and FDP stressed trends of environmental improvement or noted that nitrate contamination was at least not worsening (CDU/CSU + FDP environmental committee report 11.11.1997; FDP Bundestag debate 13.12.2012; CDU/CSU Bundestag debate 08.06.2018).

Additionally, the CDU/CSU and the FDP stated that the environmental problem pressure generated by the agricultural sector– e.g. in the form of the agricultural nitrogen surplus or the use of synthetic fertilizers in Germany – was rather moderate and/or already decreasing (CDU/CSU + FDP governmental reply 23.08.1995; CDU/CSU Bundestag debate 25.02.2016). Besides, both parties held a rather positive view of farmers and agricultural practices in Germany. According to them, farmers were willing and able to take ecological needs into account in their daily work, and environmentally-friendly fertilization practices were already widespread (CDU/CSU + FDP governmental reply 23.08.1995; CDU/CSU Bun- destag debate 15.12.1995; FDP speech 28.06.2018).

By contrast, ‘environmental pessimism’ – the problem understanding prevalent among the SPD, Bündnis 90/Die Grünen and DIE LINKE – classified aquatic nitrate contamination as very serious, e.g. in the light of oxygen depleted zones in the Baltic Sea or rising water prices (SPD Bundestag debate 05.08.1995; Bündnis 90/Die Grünen motion 07.05.2014; DIE LINKE Bundestag debate 29.06.2014). These parties stressed trends of environmental deterioration or, in case of stagnation, lamented a lack of improvement (SPD debate 06.09.1994; Bündnis 90/Die Grünen Bundestag debate 13.12.2012; DIE LINKE minor interpellation 20.05.2014). Moreover, the category of environmental pessimism com- prised warnings of a high and increasing or stagnating environmental problem pressure, e.g. a further intensification of agricultural production and an insufficient decrease in the agricultural nitrogen surplus (Bündnis 90/Die Grünen Bundestag debate 18.06.1998; Bündnis 90/Die Grünen Bundestag debate 13.12.2012; DIE LINKE motion 24.06.2014). Additionally, the environmental pessimists denounced the pervasiveness of environmentally detrimental fertilization practices (SPD Bundestag debate 13.02.1992; Bündnis 90/Die Grünen Bundestag debate 16.01.2017)

Interestingly, environmental optimists and environmental pessimists often referred to the same data but interpreted this data very differently to support their arguments. The political parties disagreed on whether the share of groundwater sampling stations whose nitrate concentrations lay, according to the regular nitrate reports, above the 50 mg NO3/l threshold was rather low or much too high, for instance (CDU/CSU Bundestag debate 28.06.2018; Bündnis 90/Die Grünen Bundestag debate 28.06.2018). In some cases, existing empirical data emphasized by one side of the two camps was also called into question by the other side. The environmental optimists referred to comparative data from the European reports about the implementation of the Nitrates Directive to underline that Germany had higher contamination levels than most other member states, for example (Bündnis 90/Die Grünen 07.05.2014 motion; SPD Bundestag debate 15.01.2015). The Christian Democrats and Liberals, on the other hand, argued that the member state data which was merged in these reports was not 33 comparative, and that a more representative European water monitoring network would rank Ger- many much better (CDU/CSU Bundestag debate 08.05.2014; FDP Bundestag debate 28.06.2018).

Tab. 2: Party-Political Problem Understandings concerning Aquatic Nitrate Contamination

Evaluation Environmental optimism Environmental pessimism of: (CDU/CSU and FDP) (SPD, Bündnis 90/Die Grünen and DIE LINKE)

the environ- Environmental situation is not so serious Environmental situation is very serious mental situation Environmental situation is improving (or Environmental situation is deteriorating (or at at least not worsening) least not improving)

the environ- Moderate environmental problem pres- Serious environmental problem pressure mental prob- sure lem pressure Environmental problem pressure is de- Environmental problem pressure is increasing creasing (or at least not increasing) (or at least not decreasing)

A second point of contention revolved around the policy path forward. On a general level, all political actors represented in the German legislature upheld the need to address the nitrate issue and in so doing, balance environmental and economic objectives (CDU/CSU Bundestag debate 20.06.1996; Bündnis 90/Die Grünen Bundestag debate 13.11.2008; SPD motion 27.06.2012; FDP agricultural committee report 17.04.2013; DIE LINKE Bundestag debate 29.06.2017). The definition of the ‘right’ balance proved controversial, however. Two positions with a stronger emphasis on either agricultural productivity or water protection can be differentiated. The Christian Democrats and the Liberals raised strong concerns that water protection measures would undermine the productivity and international competitiveness of the current agricultural system. Hence, they demanded economically viable policies which would not overburden the farming sector and dismissed many environmental policy suggestions by their political opponents (FDP Bundestag debate 07.11.1995; CDU/CSU Bundestag debate 15.12.1995; FDP motion 01.12.2004; CDU/CSU Bundestag debate 16.02.2017) To give weight to their demands, they emphasized the importance of the agricultural system in terms of:

• economic value and job creation (FDP oral interpellation 11.02.2004; CDU/CSU Bundestag debate 13.12.2012) • food production – both in Germany and to feed a growing world population (FDP Bundestag debate 13.11.2008; CDU/CSU 25.02.2016) as well as • the social and cultural cultivation of rural life (CDU/CSU Bundestag debate 16.02.2017; FDP Bundestag debate 23.03.2018)

By contrast, the Social Democrats, Bündnis 90/Die Grünen and DIE LINKE advocated more strongly for environmentally effective policies, given the environmental and public health risks associated with aquatic nitrate contamination (SPD Bundestag debate 21.06.1995; DIE LINKE agricultural committee report 17.04.2013; Bündnis 90/Die Grünen Bundestag debate 11.09.2015).

Both sides recognized that the complexity and non-linearity of the nitrogen cycle made it difficult to assess the effectiveness of previous policy action and choose the suitable policy steps forward. Yet, they drew divergent conclusions from this uncertain situation. The Christian Democrats and Liberals suggested to wait and monitor the evolution of aquatic nitrate contamination, rather than taking additional measures which could harm the agricultural sector (CDU/CSU environmental committee report 27.01.1998; CDU/CSU Bundestag debate 13.12.2012). Their political opponents, on the other hand, upheld the precautionary principle (Bündnis 90/Die Grünen (NRW) Bundesrat debate 22.09.1995; DIE LINKE Bundestag debate 16.01.2017; SPD Bundestag debate 28.06.2018).

In terms of concrete policy instruments, the Christian Democrats and the Liberals favoured soft policy measures which were based on voluntariness and left farmers a wide range of discretion (e.g. consultation, cooperative agreements between farmers and water suppliers and public funding of technological innovations) (CDU/CSU Bundestag debate 02.06.1995 + 23.03.2012; see appendix E in the digital version of this thesis). Their preference for such policy instruments was based on their trust in farmers’ sense of environmental responsibility and their belief that the structurally diverse agricultural sector could not be subjected to uniform regulations (CDU/CSU + FDP government reply 23.08.1995; CDU/CSU Bundestag debate 08.05.2014).

The Social Democrats, the Green Party and the Left Party did not reject soft and flexible instruments altogether (SPD Bundestag debate 13.12.2012; DIE LINKE motion 06.05.2014; Bündnis 90/Die Grünen motion 07.05.2014; see appendix E in the digital version of this thesis). Yet, they supported a harder policy approach on top of these, comprising strict regulations, extensive controls and effective sanctions, because they doubted that the nitrate problem could be solved without it (SPD motion 05.10.1995; DIE LINKE motion 06.05.2014; Bündnis 90/Die Grünen motion 07.05.2014; see appendix E in the digital version of this thesis).

The policy preferences of the two opposing political factions were rooted in more general, divergent assessments of the needed scope of reform in the farming sector. The CDU/CSU and the FDP were much more status-quo oriented. As manifest in the preceding paragraphs, they aimed at preserving the existing agricultural system and accompanying its further development through moderate interventions. This outlook clashed with the zeal for reform among the Social Democrats, Greens and Left Party members. The latter political actors called for a general transformation of agricultural policy because they considered the current farming sector unsustainable (SPD Bundestag debate 12.06.1991; Bündnis 90/Die Grünen Bundestag debate 10.09.2015; DIE LINKE Bundestag debate 28.06.2018).

In brief, the policy prioritization of the two sides can be summarized as

• maintaining the current agricultural system while striving for environmental sustainability, as opposed to • transforming the agricultural system to ensure environmental sustainability.

Tab. 3: Party-Political Policy Preferences concerning Aquatic Nitrate Contamination

Policy prefer- Economic viability Environmental effectiveness ences (CDU/CSU and FDP) (SPD, Bündnis 90/Die Grünen and DIE LINKE) General prioriti- Need to balance environmental and economic objectives BUT: zation Precedence of economic interests Precedence of environmental interests

Approach to Wait and monitor Precautionary principle uncertainty Policy approach Soft policy approach Hard policy approach

Ultimate goal Preservation/Adjustment of the existing agri- Environmentally-oriented general trans- cultural system formation of the agricultural system

The divergent priorities of the two party-political camps are also reflected in the ministries which they headed while being part of a national government coalition. As shown in figure six, the Christian Dem- ocrats were constantly in charge of the federal agricultural ministry during their time in office. The SPD and the Green Party occupied the federal environmental ministry alternately during their coalition government. When the Social Democrats formed part of a coalition with the Christian Democrats, they were in charge of the environmental ministry. Yet, there were also times when the environmental ministry was headed by the CDU/CSU, whereas the agricultural ministry was under control of the Green Party. The implications of these party-political assignments will be discussed in chapter 6.4.

Federal government

Agricultural ministry

Environmental ministry

Apr. 91 Oct. 98 Jan. 01 Nov. 05 Oct. 09 Dec. 13 Jun. 18

CDU/CSU SPD Bündnis 90/Die Grünen FDP

Fig. 6: Party-Political Composition of the Federal Government and Party-Political Affiliation of the Agricultural and Environmental Ministers, 1991-2018 (Own Compilation, Based on Deutscher Bundestag, 2019)

6.3 Party-Political Attention to Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive In accordance with their general policy priorities, the five parties attributed different amounts of attention to the nitrate issue. Figure seven shows which parties put aquatic nitrate contamination and the transposition of the Nitrates Directive onto the political agenda of the Bundestag and Bundesrat between 1991 and 2018. It reveals that it was particularly the SPD and Bündnis 90/Die Grünen who 36 formulated motions or interpellations and initiated debates about the nitrate issue – particularly when they were part of the parliamentary opposition. The SPD was most active in this regard during the 1990s (while being part of the federal opposition) whereas the Green Party became more vocal from 2014 onwards (when the SPD was part of a coalition government with the CDU/CSU). Agenda-setting concerning aquatic nitrate contamination from the side of the Left Party was much more limited.

The Christian Democrats and the Liberals rarely brought up the nitrate issue in the political arena of the Bundestag or Bundesrat out of their own initiative. Differences between times when these parties were part of either the federal government or the parliamentary opposition were limited. Besides, my qualitative content analysis revealed that when they did bring up the topic as opposition parties, it was primarily to criticise governmental nitrate policy suggestions for being exaggerated and detrimental to agricultural production.

Figure seven also shows substantial fluctuation in the aggregated party-political attention to aquatic nitrate contamination and the implementation of the Nitrates Directive over time. The policy processes underlying these waves of political attention are the subject of the following chapter.

6.4 Policy-Making Processes Underlying the German Transposition of the Nitrates Di- rective This chapter describes the different rounds of policy-making underlying Germany’s transposition of the Nitrates Directive between 1991 until 2018. Figure seven visualizes the most important dates during the implementation process and serves as an orientation aid in the presentation of my empirical results.

14 ECJ verdict 12 06/2018 EU inquiry Bundesrat Adoption Adoption FO amend- rejection Initiation of FO amend- 10 about ND FO amend- Nitrate EU admoni- of ND transposition of FO ECJ verdict ment of FO draft ment report tion letter ECJ lawsuit ment 12/1991 06/1995 01/1996 03/2002 02/2003 09/2004 01/2006 06/2012 10/2013 10/2016 05/2017 8

0 A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A O A 91 91 92 92 93 93 94 94 95 95 96 96 97 97 98 98 99 99 00 00 01 01 02 02 03 03 04 04 05 05 06 06 07 07 08 08 09 09 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 CDU/CSU SPD Bündnis 90/Die Grünen FDP DIE LINKE Other

Fig. 7: Legislative Activities concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive across Time7.

7 The x axis indicates the evolution of time in six-month intervals, starting in April 1991 and ending in June 2018. The y axis counts the number of legislative activities. One point on the y axis stands for one debate, motion, or interpellation (government replies to interpellations are not counted, to avoid doubling and because such replies cannot be taken as an indicator of political attention on the part of the governing parties). The colours of the columns indicate the party which ‘authored’ one of these legislative actions (e.g. by formulating a motion or bringing up aquatic nitrate pollution in a parliamentary debate). If a motion or interpellation was authored by more than one party, the colouring was done by attributing each party its share (e.g. 0.5 points in case of a motion formulated by two parties). The category ‘other’ in the legend stands for legislative proceedings which were part of the formal policy-making process (e.g. a mandatory legislative debate about a draft law). Whenever it was possible, motions and interpellations were dated according to the day when they were submitted to the Bundestag or Bundesrat. In the case of written interpellations, the exact date of submission could not be identified. In these cases, the date of their discussion in the legislature was selected. Since written interpellations are generally answered within a week, this decision did not imply a major time gap. FO stands for Fertilization Ordinance, ND for Nitrates Directive. 38

6.4.1 The Policy Process Leading to the Adoption of the first National Action Programme (April 1991-January 1996) Policy work on the Fertilization Ordinance started in 1991, parallel to the final negotiations of the Ni- trates Directive at the EU level (Bundestag debate 25.04.1991), and ended with the adoption of the ordinance in 1996. Early on, the Fertilization Ordinance was intended as the legal instrument to implement the Nitrates Directive (CDU/CSU + FDP motion 12.03.1992; SPD motion 06.05.1992). As shown in figure seven, the nitrate issue was almost constantly on the agenda of the legislature during this period. Initially, a lot of political attention concentrated on high nitrate concentrations of the drinking water in East Germany (CDU/CSU Bundestag debate 05.12.1991; SPD motion 06.05.1992; FDP Bundes- tag debate 20.01.1994). Yet, over the course of the early 1990s, nitrate pollution was increasingly un- derstood as an environmental and public health risk affecting the entire German territory, as well as the adjacent oceans (Bündnis 90/Die Grünen motion 08.03.1993; CSU (BY) Bundesrat debate 22.09.1995; DIE LINKE Bundestag debate 06.09.1994). Accordingly, all parties supported the adoption of the Fertilization Ordinance to mitigate aquatic nitrate pollution (SPD motion 06.11.1991; CDU/CSU + FDP motion 12.03.1992; DIE LINKE Bundestag debate 06.09.1994; Bündnis 90/Die Grünen 21.11.1995). Yet, they disagreed on the content of this ordinance.

Throughout the policy-making process which led to the adoption of the Fertilization Ordinance in 1996, the federal government consisted of a coalition between the Christian Democrats and the Liberals (see fig. 6). The draft bills which the government presented during this time period granted farmers substantial discretion e.g. because they did not specify the width of buffer zones between fertilized land and water bodies or the length of blocking periods during which fertilization was forbidden (BR-Drucks. 402/95; SPD minor interpellation 14.07.1995; see tab. 16 in appendix E of the digital version of this thesis for more details).

The Social Democrats and Bündnis 90/Die Grünen as opposition parties in the Bundestag dismissed the government’s policy plans for being environmentally insufficient. A deputy of the Green Party called the suggested Fertilization Ordinance “an affront against environmental policy”, for example (Bündnis 90/Die Grünen Bundestag debate 07.09.1995, p.4461)8. The SPD criticized the government for watering its propositions down over the course of the policy-process and conjectured that in the end, the regulations would “probably be so lax that agriculture does not have to change anything9” (SPD Bundestag debate 21.06.1995, p.3477). Both parties formulated motions intended to tighten the government’s policy suggestions (SPD motion 05.10.1995; Bündnis 90/Die Grünen motion 21.11.1995).

8 „Die Düngemittelverordnung, die Sie vorgelegt haben, ist genau das, was wir nicht haben wollen. Sie ist ein Affront gegen die Umweltpolitik.“ (Bündnis 90/Die Grünen Bundestag debate 07.09.1995, p.4461)

9 „Jede Woche wird eine neue Variante vorgelegt, die immer stärker abgeschwächt ist. Wahrscheinlich wird sie am Ende so lasch sein, daß die Landwirtschaft gar nichts mehr ändern muß.“ (SPD Bundestag debate 21.06.1995, p.3477). 39

Yet, the government rejected most of these suggestions, arguing that they impinged unduly on agricultural production (CDU/CSU + FDP government reply 23.08.1995; CDU/CSU Bundestag debate 15.12.1995). Although the parliamentary opposition in the Bundestag lacked legal means to block the government’s policy intentions, the policy-making process was characterized by intensive negotiations (CDU/CSU + FDP government reply 23.08.1995). First, although both entities were headed by the same party (the CDU/CSU), major dissent materialized between the agricultural and the environmental ministry (SPD Bundestag debate 16.12.1994; Bündnis 90/Die Grünen Bundestag debate 15.12.1995).

Second, an agreement between the federal government and the bundesländer had to be found. Within the Bundesrat, parties of the federal government did not hold a majority (see tab. 5 in appendix B). And state governments headed by the SPD and Bündnis 90/Die Grünen sought to tighten the government’s policy suggestions via the Bundesrat (CDU/CSU Bundestag debate 07.09.1995; FDP Bundestag debate 07.09.1995; Bündnis 90/Die Grünen (NRW) Bundesrat debate 15.12.1995; CDU/CSU Bundesrat debate 15.12.1995). Accordingly, many changes to the government’s draft ordinance which the Bun- desrat proposed resembled – or went even beyond – the suggestions raised by the opposition in the Bundestag (see tab. 16 in appendix E in the digital version of this thesis). These environmentally-oriented policy efforts met with vehement resistance by the governing parties (CDU/CSU Bundestag debate 07.09.1995 + Bundesrat debate 15.12.1995; FDP Bundestag debate 07.09.1995). The CDU/CSU warned of “additional costs and clear competitive disadvantages”10 for German farmers, for example (CDU/CSU Bundesrat debate 15.12.1995).

Yet, there were also differences of opinion among states governed by the SPD and the Green Party. While North Rhine-Westphalia championed strict fertilization regulations, for instance, Rhineland-Pa- latinate voiced concerns about over-regulation (particularly given the different degrees of pollution across regions) and negative effects on agricultural competitiveness (Bündnis 90/Die Grünen (NRW) Bundesrat debate 15.12.1995; SPD (RLP) Bundesrat debate 15.12.1995). Additionally, conflict within the Bundesrat emanated from the fact that the environmental committee formulated further reaching suggestions than the agricultural committee was willing to accept (BR-Drucks. 402/1/95; see tab. 16 in appendix E in the digital version of this thesis).

According to a deadline set by the Nitrates Directive, the Fertilization Ordinance should have been in force by the end of 1993 (Council Directive 91/676/EEC). Yet, disagreement about the adequate policy content delayed the adoption of the ordinance. This delay was not only harshly criticized by the parliamentary opposition (SPD motion 18.05.1994 + Bundestag debate 16.12.1994) – external pressure began to build up as well. In 1995, the European Commission sent the German government a formal letter with questions about the intended transposition of the Nitrates Directive (ECJ verdict 2002) and

10 „Die vorgeschlagenen Änderungen und Verschärfungen belasten unsere Landwirte nicht nur durch einen un- verhältnismäßig hohen Verwaltungsaufwand, nein, sie belasten unsere Landwirte durch zusätzliche Kosten und deutliche Wettbewerbsnachteile.“ (CDU/CSU Bundesrat debate 15.12.1995, p.642-643) 40 announced that lawsuits would be initiated against member states which had not yet – or not fully – transposed the Nitrates Directive (CDU/CSU government reply 07.07.1995).

The Fertilization Ordinance which eventually entered into force in January 1996 incorporated several amendments suggested by the Bundesrat into the government’s initial draft bill – including a few suggestions by the environmental committee which had initially been opposed by the federal government and the agricultural committee (CDU/CSU Bundesrat debate 15.12.1995; BR-Drucks. 402/1/95). Infor- mation about the voting behaviour of individual states in the Bundesrat is not available. However, state government coalitions of the CDU/CSU and the FDP held only 10 out of 68 voting rights at the time (compared with 27 votes for coalitions of the SPD with either of these two parties, and a total of 31 votes for solo governments of the SPD and coalitions between the SPD and Bündnis 90/Die Grünen) (see tab. 5 in appendix B). Hence, a large number of coalition governments including the regional branches of the SPD and Bündnis 90/Die Grünen must have voted in favour of the Fertilization Ordi- nance to produce the necessary majority of 35 votes.

From the federal government’s perspective, the final Fertilization Ordinance was suitable to protect water bodies from nitrogen inputs while preserving agricultural productivity (CDU/CSU Bundesrat debate 15.12.1995; FDP Bundestag debate 20.06.1996). A CDU/CSU politician also emphasized that this ordinance enjoyed the approval of the farming community (CDU/CSU Bundesrat debate 15.12.1995). By contrast, the opposition parties in the Bundestag characterized the new ordinance as insufficient from an environmental point of view (Bündnis 90/Die Grünen Bundestag debate 20.06.1996; SPD motion Bundestag debate 12.12.1996; DIE LINKE Bundestag debate 05.06.1997). As will be shown in the following chapter, the European Commission concurred with the evaluation of the opposition.

In sum, based on my empirical findings, the first two research questions can be answered as follows:

Research Question 1: The German transposition of the Nitrates Directive was delayed until 1996 because the political decision-makers in the federal government and the Bundesrat struggled to find an agreement that satisfied the political parties, environmental and agricultural policy-makers, and representatives of the bundesländer involved in the policy process.

Research Question 2: The German political decision-makers in the federal government and the Bun- desrat adopted an NAP which did not comply with the Nitrates Directive because the parties of the federal government prioritized agricultural protection over water protection and the environmental ministers in the Bundesrat succumbed to the agricultural state ministers and the federal government.

6.4.2 The Policy Process Leading to the First Two Amendments of the National Action Pro- gramme (February 1996-January 2006) After the adoption of the Fertilization Ordinance, aquatic nitrate contamination continued surfacing occasionally on the political agendas of the Bundestag and Bundesrat between 1996 and 1998, inter alia due to the spread of oxygen-depleted zones in the North Sea (Bundestag debate 20.06.1996; Bündnis 90/Die Grünen 02.07.1996; SPD written interpellation 21.02.1997; environmental committee

41 report 11.11.1997). Subsequently, it dropped almost completely off these agendas until the end of 2003 (see fig.7), despite increasing pressure from the European Union.

From July 1997 onwards, the German government and the European Commission discussed the suitability of certain provisions of the Fertilization Ordinance. While contention concerning the capacity of manure storage vessels could eventually be settled out of court, the Commission filed a lawsuit against Germany on another topic, namely the nitrogen losses during fertilization (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00). In March 2002, the European Court of Justice convicted Ger- many for non-compliance with the Nitrates Directive. In its final judgement, the court declared that Germany allowed farmers to fertilize above the maximum amounts permitted by the Nitrates Directive (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

At the time of the judgment, a new coalition of the Social Democrats and the Green Party had been in charge of the federal government for 3.5 years (see fig. 6). As shown in chapter 6.4.1, the two governing parties had been vocal advocates of water protection in the past. They had even criticized and sought to tighten the very same regulations which became subject of the ECJ verdict (SPD minor interpellation 14.07.1995; Bündnis 90/Die Grünen motion 21.11.1995). Nonetheless, they did not com- mence any policy reforms concerning the nitrate issue during their first years in office. The opposition parties or state governments did not push for policy action either, as shown in the lack of nitrate- related motions, interpellations or parliamentary debates (see fig. 7).

It was only in 2003 that the government adopted an amendment to the Fertilization Ordinance, namely in order to fulfil the demands of the ECJ verdict (DüV i. d. F. v. 14. Februar 2003). Empirical evidence points to an uncontroversial policy-making process concerning this legal revision. The opposition parties did not criticize the government intentions in parliamentary speeches, nor did they formulate motions against the reform plans. And in the Bundesrat, both the environmental and the agricultural committee largely approved the government’s draft to amend the Fertilization Ordinance – although governments headed by the CDU/CSU and FDP held a majority at that time (see tab. 6 in appendix B) (BR- Drucks. 937/1/02).

Following this rather selective amendment, the federal government embarked on a more profound revision of the NAP in 2004. Coalition politics did not obstruct the policy process significantly. The first government draft for a novel Fertilization Ordinance was published much more quickly than during earlier or later reform processes, and my research found no evidence of intra-governmental dissent. Both the agricultural and the environmental ministry were controlled by the same party (Bündnis 90/Die Grünen) (see fig. 6) and seemed to follow a similar policy course.

The draft bill which the government presented in June 2004 meant a substantial tightening of the previous regulations, e.g. mandatory and clearly delineated buffer zones between water bodies and fertilized land, upper thresholds for the permissible nitrogen surplus and requirements for the fertilization at hillside locations (BR-Drucks. 504/04; see tab. 17 in the digital version of this thesis). The oppositional CDU/CSU and FDP criticized the government’s draft for being too far-reaching and harmful to agricultural production (CDU/CSU Bundestag debate 27.05.2004 + written interpellation 16.07.2004; 42

FDP motion 05.05.2004). The FDP argued that the conditions for livestock farming in Germany had “deteriorated dramatically in the past years” due to the “ideological agricultural and consumer policy of the government, which attaches a subordinate importance to rural areas”11 (FDP motion 05.05.2004, p.1). The CDU/CSU and FDP also claimed that Germany’s recent agricultural policy projects like the new Fertilization Ordinance exceeded the EU’s environmental requirements (FDP motion 05.05.2004; CDU/CSU written interpellation 16.07.2004).

The Green Party defended their policy proposal by pointing to the pervasiveness of environmentally- detrimental fertilization practices (Bündnis 90/Die Grünen Bundestag debate 16.07.2004). And unlike the opposition parties, the government expected rather minor economic losses from the intended policy measures (BR-Drucks. 504/04). The SPD and the Green Party did make some concessions to agricultural interests. Among others, they applied to the European Commission for an extension of the so-called derogation rule, which allows certain farms to fertilize above the usual upper limit for nitrogen (SPD + Bündnis 90/Die Grünen government reply 01.07.2003). This extension had been a request of the agricultural ministers represented in the Bundesrat (BR-Drucks. 937/1/02).

Despite such concessions, the Bundesrat – where CDU/CSU- and FDP-led bundesländer still held a majority at the time (see tab. 6 in appendix B) – rejected the government draft in September 2004. In its justification, the Bundesrat acknowledged the need to “minimize the avoidable environmental pres- sures resulting from fertilization” 12 (BR-Drucks. 500/1/04, p. 16). Yet, it described the government draft as administratively unviable in practice and argued that the farming sector should not be burdened disproportionately in economically difficult times (BR-Drucks. 500/1/04).

According to the Bundesrat, the old Fertilization Ordinance had proven its value, and should therefore be adjusted, not replaced by a completely new legal act (BR-Drucks. 500/1/04). Consequently, the Bundesrat presented its own, more lenient draft as an alternative to the government’s proposal. This draft corresponded largely with the Fertilization Ordinance of 1996 (see tab. 17 in appendix E of the digital version of this thesis). The only governmental suggestions which the Bundesrat did incorporate related to explicit demands by the European Commission (BR-Drucks. 500/1/04). Unlike in the 1990s, there was no open dissent between the environmental committee and the agricultural committee of the Bundesrat this time (BR-Drucks. 500/1/04). Yet, due to the conflicting policy preferences of the Bundesrat and the federal government, the Fertilization Ordinance was not amended in 2004.

A revised government draft of the Fertilization Ordinance was sent to the Bundesrat in September 2005 (BR-Drucks. 703/5 + 704/05). By this time, the legislative period of the SPD-Bündnis 90/Die

11 „Die Rahmenbedingungen für den Veredlungsstandort Deutschland haben sich in den vergangenen Jahren dramatisch verschlechtert […] Entscheidende Ursache für diese Entwicklung ist eine ideologische Agrar- und Verbraucherpolitik der Bundesregierung, die dem ländlichen Raum insgesamt eine untergeordnete Bedeutung beimisst“ (FDP motion 05.05.2004, p.1).

12 „Ungeachtet dessen ist das Ziel, aus der Düngung resultierende vermeidbare Umweltbelastungen zu mini- mieren, weiter zu verfolgen.“ (BR-Drucks. 500/1/04, p. 16). 43

Grünen government had come to an end (Deutscher Bundestag, 2019). However, the fact that the new draft was published less than a week after the elections, and before the new coalition government of the CDU/CSU and the SPD had been formed suggests that this draft was still prepared by the old government. Compared with the 2004 version, the new draft contained regulations of both further tightening and relaxation (see tab. 17 in appendix E of the digital version of this thesis).

In response, five CDU/CSU-led bundesländer developed yet another Bundesrat draft (CDU (BW) Bun- desrat debate 25.11.2005). The agricultural minister of one of these states presented this draft as a correction of the government proposal which, according to him, would lead to excessive bureaucratization, competitive disadvantages and an overcompliance with EU law (CDU (BW) Bundesrat debate 25.11.2005). Despite the harsh criticism of the previous federal government, however, the new Bun- desrat draft did acknowledge the need for a fundamental revision of the Fertilization Ordinance. Con- sequently, the Bundesrat draft of 2005 built in large parts on the government’s suggestions, rather than on the old ordinance of 1996. In some regards, the Bundesrat’s propositions were more lenient than those brought forward by the government – but mostly still more ambitious than the Bundesrat’s 2004 proposal. In various other cases, on the other hand, the Bundesrat even asked for a tightening of the government’s suggestions (BR-Drucks. 704/1/05; see tab. 17 in appendix E in the digital version of the thesis). All in all, the Bundesrat’s willingness to countenance reform proved much higher in 2005 than in 2004, although the CDU/CSU and FDP still held a solid majority in this legislative chamber (see tab. 6 in appendix B).

In January 2006, the new Fertilization Ordinance entered into force (DüV i. d. F. v. 10. Januar 2006). It was based on the government proposal of September 2005 but included many of the changes suggested by the Bundesrat. Some of these Bundesrat-driven changes tightened the government’s suggestions, whereas others relaxed them somewhat. Overall, the new ordinance went much further than the CDU/CSU and the FDP (as opposition parties in the Bundestag and as the principal forces in the Bundesrat) had envisioned in the preceding year (see tab. 17 in appendix E in the digital version of this thesis). This greater willingness to tighten the NAP was closely linked to EU pressure. The Bundesrat stated that its policy suggestions were meant to implement explicit European requirements (BR- Drucks. 704/1/05). Likewise, when an FDP parliamentarian accused the new federal government of overcompliance with the Nitrates Directive, a CDU/CSU politician noted that the government merely abided with concrete demands of the European Commission (CDU/CSU government reply 23.12.2005; FDP written interpellation 23.12.2005).

The new Fertilization Ordinance– coupled with the state ordinances regulating manure storage facilities – was recognized as Germany’s national action programme to implement the Nitrates Directive by the European Commission (CDU/CSU + SPD government reply 07.12.2006). Hence, fifteen years after the adoption of the Nitrates Directive, Germany finally complied with this piece of EU law.

In sum, based on my empirical findings, research questions three and four can be answered as follows:

Research Question 3: The amendment of the NAP was delayed until 2006 because of

• initially low party-political attention to the nitrate issue and • major dissent between the parties which controlled the federal government (SPD and Bündnis 90/Die Grünen) and the parties which held a majority in the Bundesrat (CDU/CSU and FDP).

Research Question 4: The German political decision-makers in the federal government and the Bun- desrat finally adopted an amended NAP which made Germany comply with the Nitrates Directive because pressure from the European Union forced the CDU/CSU and FDP to accept many of the policy suggestions which had been formulated by the SPD and Bündnis 90/Die Grünen.

6.4.3 The Policy Process Leading to the Third Amendment of the National Action Programme and the Political Debate until the 2nd ECJ Verdict (February 2006 - June 2018) Political attention to the nitrate issue dwindled after the second amendment of the Fertilization Ordi- nance. As manifest in figure seven, the topic was only sporadically addressed in the Bundestag or Bun- desrat between 2006 and early 2014. Over the course of the year 2012, political will to tighten the Fertilization Ordinance started building up, however. In June 2012, the SPD – by then an opposition party under a federal government coalition of the CDU/CSU and the FDP (see fig. 6) – formulated a first motion asking to amend the ordinance (SPD motion 27.06.2012). This demand was complemented by a joint call for policy reform from multiple bundesländer which were mostly, but not exclusively governed by the SPD and Green Party (Bündnis 90/Die Grünen Bundestag debate 13.12.2012; information on the party-political composition of the bundesländer provided by the Bundesrat upon personal request).

Over the course of 2012 and 2013, scientific research confirmed the need to tighten the fertilization legislation. In July 2012, the federal government released its latest nitrate report, as required by the monitoring regime of the Nitrates Directive. This report found that Germany’s water quality had not improved significantly in the past four years, and even deteriorated in some cases (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; UBA 2018b). In autumn 2012, representatives of the federal government and the state governments, led by a national agricultural research institute, published the so-called BLAG report (acronym for ‘federal-state working group report’). This report evaluated the effectiveness of the Fertilization Ordinance and formulated a comprehensive set of recommendations on how to improve it (DIE LINKE minor interpellation 19.12.2013; CDU/CSU + SPD government reply 21.01.2014; Bündnis 90/Die Grünen (NRW) motion 22.10.2014). In summer 2013, these two reports were complemented by a position paper from the government’s advisory councils on agricultural policy, fertilization and the environment which asked for a revision of the Fertilization Ordi- nance as well (DIE LINKE minor interpellation 19.12.2013 + Bundestag debate 25.02.2016; UBA 2018b).

On the basis of these scientific insights, all parties represented in the Bundestag acknowledged the need to amend the Fertilization Ordinance. Yet, the governing Christian Democrats and Liberals described the environmental situation in less severe terms than the SPD and Bündnis 90/Die Grünen (Bundestag debate 13.12.2012; agricultural committee report 17.04.2013). The CDU/CSU made it also clear that they were opposed to a general tightening of the Fertilization Ordinance (CDU/CSU

Bundestag debate 13.12.2012). A government change in late 2013 held the potential for more profound reforms, as the CDU/CSU formed a coalition with the traditionally more environmentally-oriented SPD: The two parties defined the reduction of nutrients into water bodies via legal reform as an official goal in their coalition agreement and declared their intention to amend the Fertilization Ordi- nance based on the recommendations of the BLAG report (DIE LINKE minor interpellation 19.12.2013; CDU/CSU + SPD government reply 21.01.2014).

Additional impetus for policy reform started to build up at the EU level, once the European Commission had received the nitrate report of 2012. In an official admonition letter sent in October 2013, the Com- mission criticized the German government for failing to adopt additional measures to address the continuously high nitrate concentrations of German water bodies (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; UBA 2018b). The federal government sought to defend itself by referring to the latest amendment of the Fertilization Ordinance in 2006, and the intended further tightening in the near future (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16). The exchange between the federal government and the EU Commission continued throughout the succeeding years, with the German side trying to gain approval for its planned policy changes to the NAP, and the European side rejecting these suggestions as insufficient (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; UBA 2018b).

The EU pressure lifted the nitrate issue back onto the political agenda, as reflected in the increasing number of legislative debates, motions and interpellations about the nitrate issue from early 2014 onwards (see fig. 7), and the numerous statements in which all parties underlined the urgent need to comply with the Nitrates Directive to prevent a lawsuit (Bündnis 90/Die Grünen Bundestag debate 08.05.2014; DIE LINKE minor interpellation 25.08.2015; CDU/CSU Bundestag debate 25.02.2016; SPD Bundestag debate 25.02.2016). Time-wise, the EU influence encouraged the policy-makers to accelerate the reform process (Bündnis 90/Die Grünen Bundestag debate 25.02.2016; CDU/CSU Bundestag debate 25.02.2016). Content-wise, the SPD and the Green Party attributed the eventual tightening of the fertilization legislation in significant parts to the European pressure (Bündnis 90/Die Grünen Bun- destag debate 29.06.2017; SPD Bundestag debate 16.02.2017 + 29.06.2017 + 28.06.2018). SPD politicians argued for instance that this pressure helped overcome resistance from the CDU/CSU because it changed the attitude of the farmers union, with whom the Christian Democrats are closely associated (SPD Bundestag debate 29.06.2017).

Nonetheless, the reform process was a controversial endeavour. In the government, major dissent between the coalition partners materialized, as Social Democratic politicians favoured stricter measures than the Christian Democrats (see tab. 19 in appendix E in the digital version of this thesis; CDU/CSU Bundestag debate 08.05.2014 + 16.01.2017). This disagreement translated into extended and contentious negotiations between the SPD-led environmental ministry and the CSU-led agricultural ministry, and between spokespersons of agricultural and environmental policy among national parliamentarians of both parties (Bündnis 90/Die Grünen Bundestag debate 11.09.2015; CDU/CSU Bundestag debate 25.02.2016 + 16.02.2017; SPD Bundestag debate 19.01.2017 + 27.06.2017).

In the Bundestag, Bündnis 90/Die Grünen and (to a lesser degree) DIE LINKE criticized the government for the lack of policy progress and the non-transparent negotiations within the cabinet (Bündnis 90/Die Grünen Bundestag debate speech 25.02.2016 + environmental committee report 15.02.2017; DIE LINKE environmental committee report 15.02.2017 + Bundestag debate 16.02.2017). In particular, the Green Party attacked the Christian Democrats and their agricultural minister for neglecting water protection and catering to the interests of the farmers union and big agro-businesses (Bündnis 90/Die Grünen Bundestag debate 10.09.2015 + 25.02.2016 + 16.02.2017 + 29.06.2017). The Christian Demo- crats, in turn, rejected the demands of the opposition as inconsiderate of the legitimate interests of the agricultural sector, and emphasized the need for economically viable policies (CDU/CSU Bundestag debate 08.05.2014 + 29.01.2016 + 16.02.2017). Among others, CDU/CSU politicians cited Denmark as a negative example, arguing that nitrate policies in this country prevented the cultivation of high-quality wheat (CDU/CSU Bundestag debate 16.02.2017 + 29.06.2017).

Unlike the federal opposition, the bundesländer possessed substantial political leverage vis-à-vis the federal government due to their official decision-making power. Between 2013 and mid-2016, states governed by the SPD, Bündnis 90/Die Grünen and DIE LINKE held a majority in the Bundesrat and afterwards, these more environmentally-oriented parties were still strongly represented in this legislative body (see tab. 7 in appendix B). Accordingly, various state governments (especially those headed by the SPD and Bündnis 90/Die Grünen) urged the government to tighten the fertilization legislation (SPD + Bündnis 90/Die Grünen (NRW) motion 22.10.2014; Bündnis 90/Die Grünen Bundestag debate 25.02.2016; SPD Bundestag debate 25.02.2016; CDU/CSU Bundestag debate 29.06.2017; information provided by the Bundesrat upon personal request).

SPD and Bündnis 90/Die Grünen politicians at the federal level characterized the pressure from the bundesländer as instrumental in obtaining stricter fertilization regulations (SPD Bundestag debate 25.02.2016; Bündnis 90/Die Grünen Bundestag debate 25.02.2016 + environmental committee report 15.02.2017). Conversely, the Green Party criticized the CSU-led Bavarian government for blocking the necessary policy progress, and the Christian Democratic federal minister of agriculture for giving in to this regional resistance (Bündnis 90/Die Grünen Bundestag debate 25.02.2016 + 16.02.2017).

Despite the political pressure for quick policy action, the federal government struggled to agree on a new fertilization legislation which satisfied both coalition partners, the bundesländer and the EU Com- mission (DIE LINKE minor interpellation 25.08.2015). The government had initially announced to amend the Fertilization Ordinance by the end of 2014 (SPD + CDU/CSU government reply 21.01.2014), but in spring 2016, the negotiations were still ongoing. Due to this long delay and its dissatisfaction with the German policy propositions, the European Commission filed a lawsuit against Germany for non-compliance with the Nitrates Directive in October 2016, after Germany had missed the EU’s final deadline for the amendment of the NAP (September 2016) (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; Bündnis 90/Die Grünen written interpellation 17.06.2016).

The policy process in Germany continued until the end of 2017, parallel to the European infringement procedure. In April 2017, a new Ordinance concerning Facilities for the Treatment of Water-Polluting 47

Substances (FTWS Ordinance) (AwSV) was adopted. Its regulations about manure storage became an official – albeit rather minor – part of Germany’s NAP, complementing the Fertilization Ordinance. It substituted the previous länder ordinances on the subject matter, in accordance with demands for uniform national standards voiced by the state governments (BMUB, 2016; UBA 2018b; SPD Bundesrat debate 31.03.2017). The novel FTWS Ordinance did not feature prominently in the political controversy over the transposition of the Nitrates Directive. No opposition party or state government criticized this ordinance in relation with the nitrate issue in either the Bundestag or Bundesrat.

More critical attention was given to the amendment of the Fertilization Law and the Fertilization Ordi- nance in May 2017. The Fertilization Law (DüG) matters for the implementation of the Nitrates Di- rective because it sets the broader legal framework for the German fertilization legislation and author- izes the federal government to regulate further fertilization-related details via ordinances (notably the Fertilization Ordinance). Consequently, the reform of the Fertilization Law was a precondition for the amendment of the Fertilization Ordinance13 (CDU/CSU Bundestag debate 25.02.2016). Upon its adoption, representatives of all parties at the state and the federal level acknowledged that the modified Fertilization Law signified a step forward in terms of water protection from agricultural nitrate pollution (Environmental committee report 15.02.2017; Bundestag debate 16.02.2017). Politicians of the SPD and Bündnis 90/Die Grünen attributed this policy progress primarily to the negotiation efforts of their two parties, both at the federal and the state level (SPD (MVP) Bundestag debate 19.01.2017; Bündnis 90/Die Grünen environmental committee report 15.02.2017 + Bundestag debate 16.02.2017; SPD Bundestag debate 16.02.2017).

However, while acknowledging the step forward, the opposition parties were not fully satisfied with the new law. Unlike the governing parties, the federal opposition doubted that the new Fertilization Law was a sufficient basis for a proper transposition of the Nitrates Directive (Bündnis 90/Die Grünen Bundestag debate 16.02.2017; DIE LINKE Bundestag debate 16.02.2017; environmental committee report 15.02.2017). In particular, the Green Party and the Left Party emphasized that the effectiveness of the Fertilization Law would ultimately depend on the design of the Fertilization Ordinance. But the government had not yet published a draft for this ordinance by the time when the Fertilization Law was debated in parliament in mid-February – a fact which the opposition criticized sharply (Bündnis 90/Die Grünen environmental committee report 15.02.2017; DIE LINKE environmental committee report 15.02.2017 + Bundestag debate 16.02.2017).

Shortly after the Bundestag debate about the Fertilization Law, the government eventually did send its draft for a new Fertilization Ordinance to the Bundesrat (BR-Drucks. 148/17). At the time, party- political power in the latter decision-making body was highly scattered. All state governments included at least one of the parties governing at the federal level, but in coalitions with multiple different

13 The Fertilization Law was only adopted in 2009 and its predecessor, the Fertilizer Law (DüMG) dating from 1977 contained very unspecific fertilization regulations (Agricultural committee report 12.11.2008). Hence, the revision of the Fertilization Ordinance in 2006 did not require an amendment of the Fertilization Law. 48 parties. There was a large number of coalition governments among the SPD, the Green Party and the Left Party, but also several bundesländer governed by the SPD and the CDU/CSU, the CDU/CSU and the Green Party, and other constellations (see tab. 7 in appendix B). The Bundesrat formulated some changes to the government suggestions. However, neither its environmental nor its agricultural committee questioned the government draft in general (BR-Drucks. 148/1/17). Government statements uttered in the preceding years suggest that this quite favourable reception in the Bundesrat stemmed from the coordination between the government and the bundesländer over the course of the earlier policy process (CDU/CSU + SPD government reply 17.04.2015 + 27.05.2016).

Yet, reservations by some states persisted. Prior to the vote on the Fertilization Ordinance in the Bun- desrat, the Green minister of Lower Saxony emphasised that the new ordinance alone would not satisfy the demands of the European Commission and end the European infringement procedure, for example (Bündnis 90/Die Grünen (Nds.) Bundesrat debate. 31.03.2017).

Greater opposition to the government’s policy suggestions emerged in the second half of 2017, when the so-called Substance Flow Balance Ordinance (SFB Ordinance) (StoffBilV) was negotiated. Although no formal part of Germany’s NAP, this ordinance is an important complement to the Fertilization Or- dinance because it specifies the nutrient accounting requirements for farmers. On that account, the adoption of the SFB Ordinance was the central final act in the reform of the fertilization legislation (Bündnis 90/Die Grünen (SH) Bundesrat debate 24.11.2017). Its importance shows in the fact that the opposition forced a parliamentary scrutiny reserve, meaning that the ordinance had to be approved by the Bundestag (Bündnis 90/Die Grünen environmental committee report 27.06.2017). Although the Bundestag’s assent was fairly certain, given the government’s parliamentary majority, the scrutiny reserve provided the opposition parties with an additional channel to publicly criticize the SFB Ordinance (Bündnis 90/Die Grünen Bundestag debate 29.06.2017; DIE LINKE Bundestag debate 29.06.2017).

The federal opposition parties used the parliamentary debates about the SFB Ordinance also to express their general dissatisfaction with the novel ‘fertilization package’, whose individual components (comprising the Fertilization Law, the Fertilization Ordinance, the FTWS Ordinance and the SFB Ordinance) they could now assess conjointly (Bündnis 90/Die Grünen Bundestag debate 29.06.2017 + (SH) Bun- desrat debate 24.11.2017; LINKE Bundestag debate 29.06.2017). A Green member of parliament argued that the “massaged data” 14 of the SFBO undermined the polluter pays principle which the policy reform was meant to introduce and called the Fertilization Ordinance “half-baked” 15, for instance (Bündnis 90/Die Grünen Bundestag debate 29.06.2017, p. 25024). He also criticized the government

14 „Das Verursacherprinzip, das mit dieser Novellierung eingeführt wurde, kann wegen geschönter Zahlen aus der Stoffstrombilanzverordnung nicht richtig befolgt und die Gülle nicht sachgerecht bilanziert werden.“ (Bünd- nis 90/Die Grünen Bundestag debate 29.06.2017, p. 25024)

15 „In diesem seit 2013 währenden Prozess des Nichtstuns und Aussitzens wurde kurz vor Toresschluss eine halbgare Düngeverordnung beschlossen.“ (Bündnis 90/Die Grünen Bundestag debate 29.06.2017, p. 25024) 49 for subverting further reaching policy compromises prepared by the bundesländer (Bündnis 90/Die Grünen Bundestag debate 29.06.2017).

These assessments clashed with the contentment vis-à-vis the novel fertilization package which the governing parties expressed (CDU/CSU Bundestag debate 29.06.2017 + Bundesrat debate 24.11.2017; CDU/CSU + SPD government reply 15.03.2018; SPD Bundestag debate 29.06.2017). The Social Demo- crats were a bit more sceptical than their counterpart in government. One SPD politician stated that his party had negotiated “ardently, until the limits of what is possible16” (SPD Bundestag debate 27.06.2017, p.6) and acknowledged that they had only achieved “the necessary […] more was unfortunately not doable”17 (SPD Bundestag debate 29.06.2017, p. 25023). Accordingly, he saw a need for further legal tightening in the future (SPD Bundestag debate 29.06.2017). Overall, however, both governing parties considered the new legislation a suitable compromise between environmental and agricultural interests and rejected further reaching environmental demands (at least in the short run) with reference to the burdens which farmers were already facing (SPD Bundestag debate 29.06.2017; CDU/CSU Bundestag debate 29.06.2017 + Bundesrat debate 24.11.2017; CDU/CSU + SPD government reply 15.03.2018).

In the Bundesrat, dissent concerning the SFB Ordinance materialized between different bundesländer and between agricultural and environmental policy-makers. In the end, policy proposals by Lower Sax- ony (governed by the SPD and the Green Party), Schleswig-Holstein (governed by the CDU/CSU, the Green Party and the FDP) and the environmental committee, all of which sought to tighten the ordinance, were rejected (Bündnis 90/Die Grünen (SH) Bundesrat debate 24.11.2017; CDU/CSU Bundesrat debate 24.11.2017; information on the party-political composition of the bundesländer provided by the Bundesrat upon personal request). In view of this rejection, Schleswig Holstein’s green agricultural minister lamented that “[this] soft, lax ordinance does not help anybody, neither the farmers, nor the administration, nor the groundwater”18 (Bündnis 90/Die Grünen (SH) Bundesrat debate 24.11.2017, p.450). Nonetheless, a majority in the Bundesrat voted in favour of the new SFB Ordinance in Novem- ber 2017. Given the party-political composition of this decision-making at the time, some bundeslän- der co-governed by the Green Party and the Left Party, which criticized the ordinance harshly at the federal level, must have consented to this legal act as well (see tab. 7 in appendix B).

After the adoption of the SFB Ordinance, a further tightening of the German fertilization legislation was no longer a major political issue until June 2018, when the ECJ convicted Germany for non-compliance with the Nitrates Directive. The infringement procedure was centred around Germany’s failure

16 „Die Fraktion der SPD sei über den gefundenen Kompromiss erfreut, zu dessen Zustandekommen sie hart bis an die Grenzen dessen, was möglich sei, verhandelt habe.“ (SPD Bundestag debate 27.06.2017, p.6)

17 „Wir haben nur das Notwendige getan; mehr war leider nicht machbar.“ (SPD Bundestag debate 29.06.2017, p.25023)

18„Diese weiche, lasche Verordnung hilft niemandem weiter, den Bauern nicht, der Verwaltung nicht, letztlich auch dem Grundwasser nicht.“ (Bündnis 90/Die Grünen (SH) Bundesrat debate 24.11.2017, p. 450). 50 to amend the Fertilization Ordinance of 2006 within the deadline set by the EU Commission. Accord- ingly, the European Court of Justice did not evaluate the amendment of the fertilization legislation which the German government undertook in 2017 in its judgement (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16). As mentioned above, however, in the end, this amendment did not gain European approval either. In July 2019, the Commission called upon the German government to take further action to comply with the ECJ verdict (European Commission, 2019d).

In sum, based on my empirical findings, research questions five to seven can be answered as follows:

Research Question 5: Irrespective of their party-political affiliation, the German political decision-makers did not consider a reform of the NAP before 2012. Willingness to countenance reform started to build up among Social Democrats and several bundesländer shortly before the official publication of the 2012 nitrate report, and was further strengthened among all parties by this report and other reports on the (un)suitability of the German fertilization legislation to address aquatic nitrate pollution.

Research Question 6: The amendment of the NAP after the publication of the 2012 nitrate report was delayed because the political decision-makers in the federal government and the Bundesrat struggled to find an agreement that satisfied the political parties, environmental and agricultural policy-makers, and representatives of the bundesländer involved in the policy process.

Research Question 7: The German political decision-makers in the federal government and the Bun- desrat adopted an amended NAP which did not comply with the Nitrates Directive because

• CDU/CSU decision-makers at the state and federal level blocked further reaching changes and • decision-makers from the SPD, the Green Party and the Left Party at the federal and/or state- level consented to a compromise with the CDU/CSU.

7. Discussion

This thesis set out to explain Germany’s flawed transposition of the Nitrates Directive through a scrutiny of domestic party politics. In the following chapter (7.1), I am going to revisit my empirical findings concerning this research objective with a more analytical and abstract lens. The newly gained insights will be discussed against the backdrop of the theoretical and empirical literature introduced in chapter four. Subsequently, chapter 7.2 critically assesses the limitations of this thesis in terms of research design and scope, chapter 7.3 examines the transferability of the empirical findings, 7.4 discusses implications for further research and chapter 7.5 presents the practical implications of this thesis.

7.1 Discussion of the Empirical Findings 7.1.1 Party-Political Cleavages concerning Aquatic Nitrate Contamination and the Transposi- tion of the Nitrates Directive In line with the work on agricultural water pollutants by Schaub (2019), my empirical results indicate that political conflict concerning the German transposition of the Nitrates Directive was embedded in

51 two fundamental ideological divides in the party system (exceptionalism vs. post-exceptionalism, as a subdimension of the new politics cleavage, and market liberalism vs. state interventionism). Given that all parties did recognize the need to protect water bodies from nitrate pollution, one might argue that ‘exceptionalist’ parties were indeed rather proponents of a ‘weak’ version of post-exceptionalism, compared with an advocacy of ‘strong’ post-exceptionalism by e.g. the Green Party (as suggested by Tosun (2017)). In the following, I will stick with the original terms ‘exceptionalism-post-exceptionalism’, however, to underline the stark differences in the prioritization of agricultural production and environmental protection between the political parties.

According to Schaub (2019), the party-political divide between exceptionalism and post-exceptionalism runs primarily between the Christian Democrats and the Green Party. My research findings confirm the categorization of these two parties. However, the other parties positioned themselves quite consistently along the exceptionalism-post-exceptionalism divide as well. While the FDP can be associated with exceptionalism, the SPD and the Left Party identified more closely with post-exceptionalist views.

Post-exceptionalist advocacy by the SPD is particularly noteworthy, given the party’s political weight at the federal and bundesland level. As described in the previous chapter, this party was the most vocal critic of the government’s nitrate policy approach during the 1990s, supported a tightening of the Fer- tilization Ordinance during its coalition with the Green Party and pushed for stricter fertilization regulations vis-à-vis its Christian Democratic coalition partner in the 2010s. Interestingly, the SPD hardly mentioned agricultural pollutants in its electoral manifestoes between 1998 and 2018, which led Schaub (2019) to assume that the topic was of lesser concern to the party. Likewise, my analysis revealed that the SPD did not initiate many debates or formulate many motions and interpellations on aquatic nitrate pollution during the first two decades of the 21st century (see fig. 7).

However, when evaluating the latter evidence, one must take account of the fact that the SPD was a governing party during most of this time. Following Schreyer and Schwarzmeier (2005), Auel (2007) and Siefken (2018), one can assume that this governmental responsibility prevented SPD representatives from voicing ample public criticism. Politicians whose parties belong to the government are less likely to pressure the government for policy reform in public arenas like the legislature. If they do disagree with the government’s policy course, they tend to use internal channels of communication for their criticism, so as to avoid unfavourable publicity for their party (Schreyer and Schwarzmeier, 2005; Auel, 2007; Siefken, 2018). As shown in chapter 6.3, no parliamentary group or state government was a very active agenda-setter when their party ruled at the federal level.

Simultaneously, the fact that the Social Democrats did not mention agricultural pollutants very frequently in electoral manifestoes or legislative proceedings during the 2000s and 2010s might suggest that the party withdrew somewhat from the topic as the Green Party – for whose profile environmental protection is much more central – started addressing agricultural water pollution more intensively. Using the terminology of Green Pedersen’s and Wolfe’s (2009) study, it can be conjectured that issue ownership passed – at least to some degree – from the SPD to Bündnis 90/Die Grünen. When the 2012 nitrate report was released and the European Commission called for a reform of the German NAP, 52 however, the SPD stepped up its ambitions to tackle the nitrate issue. This development shows that a party’s actual policy-making efforts might exceed its declarations of intent during electoral campaigns. It corresponds with the emphasis on fluctuating political attention by the Punctuated Equilibrium Framework (Baumgartner and Jones, 1993).

As concerns the cleavage between state interventionism and market liberalism, my research results confirm Schaub’s (2019) work in so far as the three centre left/left-wing parties favoured stricter fertilization regulations than the centre-right/right-wing parties. Furthermore, whereas the CDU/CSU and the FDP suggested soft policy instruments to reduce nitrate pollution as an alternative to a tightened legal framework, the SPD, Bündnis 90/Die Grünen and DIE LINKE perceived such instruments as complements to the regulatory approach. However, unlike Schaub (2019), I would not describe the approach of Germany’s centre-right/right wing parties to the farming sector as pure market liberalism. Such laissez-faire economics would indeed contradict the concept of agricultural exceptionalism, which has traditionally been characterized by major state support for farmers (see chapter 4.1). Par- ticularly the Christian Democrats seemed primarily opposed to state interventions which constrain agricultural production (without criticising agricultural subsidies, for instance). One may characterize this policy approach as bounded market liberalism.

In summary, although all German parties wanted to address aquatic nitrate contamination and comply with the Nitrates Directive, they held competing views on how to do so. The SPD, Bündnis 90/Die Grü- nen and DIE LINKE underlined the necessity and legitimacy of strict nitrate policies because they ascribed agriculture a strong responsibility for environmental protection (post-exceptionalism) and approved of environmentally-motivated state intervention in the economy (state interventionism). By contrast, the CDU/CSU and FDP favoured more lenient regulations, so as to preserve agriculture’s socio-economic functions (exceptionalism) and prevent state interference with farmers’ economic freedoms (bounded market liberalism)19. Importantly, these conflicting policy approaches accompanied all rounds of policy-making during Germany’s implementation of the Nitrates Directive. The rather moderate and blurry lines of partisan conflict vis-à-vis the nitrate issue which Conrad (1990) describes with view to the 1970s and 1980s had apparently given way to a greater degree of polarization and a more clear-cut ideological divide as early as 1991.

My empirical findings suggest that the party-political dissent concerning the implementation of the Nitrates Directive was exacerbated by the uncertain and complex subject matter itself. The diffuse sources of nitrogen pollution, the different forms in which nitrogen compounds reach water bodies, the long retention time of nitrate in groundwater bodies and the weather-dependent fluctuations of oceanic nitrate concentrations made it difficult to trace the state of aquatic nitrate contamination (see chapter 2.1). This situation opened room for subjective, value-driven interpretations and helps explain why the parties did not agree on the severity of nitrate pollution. Despite their reliance on similar

19 In the following, for matters of simplicity, I will largely refer to these two groups of parties as “exceptionalists” and “post-exceptionalists”. 53 scientific data, the Green Party, the Social Democrats and the Left Party held a more pessimistic view on the water situation than the Christian Democrats and the Liberals, for instance. These problem assessments, in turn, supplied powerful rationales for greater or fewer environmental restrictions on agricultural practice.

Moreover, the party-political dispute about the details of the German legislation mirrors the challenges of mitigating diffuse sources of pollution. Given the diversity of agricultural structures, the effects which nitrate policies would have on individual farms could not easily be anticipated. Party-political conflict between exceptionalist and post-exceptionalist parties about the right scope and types of state intervention in the agricultural sector was fuelled by this situation.

On top of that, and as already pointed out by Nimmo Smith et al. (2007), the Nitrates Directive itself proved a source of uncertainty, due to its fairly vague stipulations. Despite concretizations by the Eu- ropean Commission and the ECJ, my research results show that parties of the exceptionalist end of the political spectrum interpreted the provisions of the Nitrates Directive to be less demanding than their post-exceptionalist counterparts. Such dissent could not have materialized in a situation of legal clarity.

The political parties did engage in some activities of joint fact-finding. As mentioned above, the agricultural and environmental ministries shared the responsibility for the nitrate reports, for example. Moreover, the BLAG report which evaluated the Fertilization Ordinance in 2012 was a joint project of national and state-level policy-makers. Yet, such fact-finding collaborations did not translate into shared problem definitions and policy preferences.

The observation that complex and uncertain realities nurtured value-laden problem and policy understandings during the transposition of the Nitrates Directive resonates with the work of Baumgartner and Jones (1993). According to their Punctuated Equilibrium Framework, political actors promote conflicting policy images which – in a context of bounded human rationality – rely on a mix of empirical information and value claims (Baumgartner and Jones, 1993). The party politics centred variant of the PEF traces the policy positions vis-à-vis specific issues to deeply engrained party-political identities (Green-Pedersen and Wolfe, 2009). As shown above, this explanatory approach proved very fitting in the case of my research, hence confirming that bounded rationality and party-political cleavages are key to understanding political conflict about the German transposition of the Nitrates Directive. One may speak of a mutually reinforcing cycle in which party-political convictions helped policy-makers evaluate the existing, uncertain and complex information, and the interpretation of the empirical evidence corroborated the existing party-political convictions.

7.1.2 Party-Political Cleavages as a Source of Political Attention to Aquatic Nitrate Contamina- tion and the Transposition of the Nitrates Directive

According to Schaub (2019), the deep ideological divisions in the party system are responsible for Ger- many’s insufficient policy response to agricultural water pollutants. Yet, my empirical findings show that it is too simplistic to blame party-political cleavages as such for the lack of policy action. Rather, in line with the reasoning of Green-Pedersen and Wolfe (2009), my research results demonstrate that 54 partisan cleavages heightened the political attention to aquatic nitrate contamination. This stimulating function of partisan lines of conflict manifested itself in the fact that the parties connected the nitrate issue to their more general stance on agricultural policy. Particularly the SPD and Bündnis 90/Die Grü- nen sought to capitalize on the nitrate issue to attain political recognition as guardians of the environment, attack their political opponents and promote their vision of an alternative, more environmentally sustainable agricultural system. This dynamic resembles the Danish experience, where aquatic nitrate contamination became a prominent topic because the environmentally-oriented political left sought to exploit it to challenge their right-wing competitors (Green-Pedersen and Wolfe, 2009).

Nonetheless, my empirical analysis reveals that aquatic nitrate pollution was not constantly high on the political agenda in Germany over the course of the last three decades. Some external triggers were necessary to make parties heed the nitrate issue. In terms of the nature of these triggers, a significant difference between Denmark and Germany can be noted. As mentioned above, nitrate politics in Den- mark was primarily stimulated by a major national event, namely the fish kill along the coast. Accord- ingly, Green-Pedersen and Wolfe (2009) describe the European Union as a rather minor influence factor on Danish nitrate politics.

In Germany, national influence factors (e.g. the rising water prices or reports about oxygen depleted oceanic zones) did play a role, too, as evidenced by their frequent mentioning in the legislature. Yet, they became only more prominent in combination with European pressure to properly implement the Nitrates Directive. Despite its environmentally-oriented political profile, the government coalition of the SPD and Bündnis 90/Die Grünen disregarded the nitrate issue until the first ECJ verdict, for example. And in 2013, an admonition letter by the European Commission increased party-political attention to aquatic nitrate pollution – although the nitrate report upon which the Commission’s criticism was based had been published more than a year earlier.

To put it briefly, in contradistinction to Green-Pedersen’s and Wolfe’s (2009) findings, ideological divisions between exceptionalists and post-exceptionalists did not suffice to engage the German parties intensively, steadily and out of their own initiative with the nitrate issue. To explain the behaviour of the German parties, it seems worthwhile to recall the concept of bounded rationality in politics (Baumgartner and Jones, 1993; Simon, 1997) and consider the manifold environmental externalities of the farming sector which might serve as a source of conflict between exceptionalist and post-exceptionalist parties (e.g. greenhouse gas emissions, decline in insect populations, biodiversity loss) (UBA, 2018a). Germany’s parties could not possibly address all agro-environmental policy issues simultaneously with the same intensity.

Yet, eventually, the nitrate reports and the EU implementation pressure gave post-exceptionalist parties like the SPD and Bündnis 90/Die Grünen compelling reasons to embrace aquatic nitrate pollution to attack their opponents and nurture their environmental profile. In brief, the monitoring and policy revision requirements of the Nitrates Directive – and the European Commission’s zeal to enforce them – helped put the nitrate issue onto the political agenda in Germany. The legal regime established through the Nitrates Directive thus mitigated a major weakness of political systems identified by the 55

PEF, namely the evasiveness of political attention (Baumgartner and Jones, 1993). Once the European influence had sensitized the German parties to the nitrate issue, the topic gathered momentum of its own at the national level, as it resonated with the political identity of the main parties. Nonetheless, nitrate policy-making over the course of the last three decades did not easily yield a proper and timely transposition of the Nitrates Directive. To explain this phenomenon, the following chapter takes a closer look at the political struggle which unfolded between the party-political advocates and opponents of rigorous anti-nitrate pollution policies.

7.1.3 The German Transposition of the Nitrates Directive – A Struggle between Competing Policy Images across Political Parties and Policy Venues The proper transposition of the Nitrates Directive in Germany depended on the recognition among policy-makers that agricultural practices must be subjected to strict nitrate regulations. Combining the terminology of cleavage theory (Schaub, 2019) and the Punctuated Equilibrium Framework (Baumgartner and Jones, 1993), it can be stated that the previously dominant, exceptionalist and (boundedly) market-liberal agricultural policy image had to succumb to a novel, post-exceptionalist and interventionist policy image vis-à-vis aquatic nitrate pollution. As shown in the preceding chapter, party-political proponents of these two policy approaches competed with one another in German nitrate politics throughout the last three decades. The old, once monopolistic policy image ruled no longer supreme, but neither was it fully substituted by an alternative, post-exceptionalist policy image. This finding runs counter to the idea of swift and sweeping punctuations of policy equilibria voiced by Baumgartner and Jones (1993). Instead, (re)framing turned out to be a protracted political endeavour which did not yield easy wins to either side of the political spectrum.

In this context, and in line with the party politics variant of the PEF, as well as the recent party-centred EU implementation literature (Treib, 2003; Toshkov, 2008; Green-Pedersen and Wolfe, 2009; Schiffino, Ramjoué and Varone, 2009; Sedelmeier, 2009; Avdeyeva, 2010; Spendzharova and Versluis, 2013), the respective political leverage of exceptionalist and post-exceptionalist parties determined the German policy reforms concerning the Nitrates Directive. Parties with a strong presence in the relevant venues of policy-making had a greater chance to further their preferences.

Similar to Denmark, (albeit for partly different institutional/political reasons) policy-making competencies in German nitrate politics were dispersed across several parties. In both polities, coalition governments of at least two different parties are the rule (Andersen and Hansen, 1991; Green-Pedersen and Wolfe, 2009). The prevalence of minority governments as an additional factor which diffuses political power in Denmark does not apply to Germany. However, unlike the unitary Danish polity, Germany’s federal architecture forced the national executive to heed the perspective of the bundesländer in its nitrate policy projects. Federal governments rarely enjoyed a majority of like-minded parties in the Bundesrat during the transposition of the Nitrates Directive. There was hence a constant need for party-political compromise across these two decision-making bodies.

Unlike its Danish counterpart (Green-Pedersen and Wolfe, 2009), the German government did not depend on the national legislature to adopt its nitrate policies because the NAP consisted of ordinances. However, since federal governments in Germany have hitherto always possessed a majority in the Bundestag and party discipline is high, parliamentary approval for governmental policy proposals is usually a mere formality anyways (Marschall, 2018). In this regard, contrary to suggestions by Steunenberg (2006), the specific pathway through which the Nitrates Directive was implemented into German law did not make much of a difference in the policy process (i.e. the opposition in the Bundes- tag could not have blocked the government’s policy projects anyways).

Germany’s decision to conceive the formulation of the NAP as a joint task of environmental and agricultural policy-makers, on the other hand, impacted the policy process significantly. Given the major influence which the environmental and agricultural ministries, as well as the agricultural and environmental committees of the Bundesrat, exercised on the policy output, one can conceptualize these sub- units of the executive and the legislature as central policy venues, following the terminology of Baum- gartner and Jones (1993). Moreover, the importance of inter-ministerial negotiations for the formulation of draft ordinances confirms the claim in the EU implementation literature that ministers in charge of a policy area are key for the transposition of EU law (Treib, 2003; König and Luig, 2014).

The decision-making structures during the transposition of the Nitrates Directive constituted a major departure from the past, when, as mentioned above, agricultural practices were solely regulated by agricultural policy-makers (Conrad, 1990; Greer, 2005; Tosun, 2017). From the perspective of the PEF, the recent cooperation of environmental and agricultural policy-makers concerning the nitrate issue signals an erosion of the former exceptionalist policy monopoly vis-à-vis agriculture (Baumgartner and Jones, 1993). Not only did environmental concerns undermine the exceptionalist understanding of agricultural policy but demands to address the environmental externalities of overfertilization and intensive livestock farming were also incorporated into the institutional structures of decision-making.

Importantly, Germany’s transposition of the Nitrates Directive was a joint competence of agricultural and environmental policy-makers from the very start. The involvement of environmental policy venues was hence no achievement of reform-oriented political actors during the negotiation of the NAPs. Un- like Baumgartner’s and Jones’ (1993) classical notion of venue-shopping, no novel policy venues emerged and helped promote policy change. Instead, the existing venues proved more or less receptive to different policy priorities, depending on their partisan composition. One may speak of party- politically driven venue shopping, in the sense that parties used the existing venues strategically to advance their policy preferences. This is an interesting twist to the work of Green-Pedersen and Wolfe (2009), who associate party politics chiefly with single-venue polities. It is also a noteworthy difference from the classical PEF model (Baumgartner and Jones, 1993) because the distribution of policy-making competencies remained fixed (i.e. there was no shift of responsibility from one policy venue to another), implying a constant need for compromise between different policy venues.

Since the party-political composition of the federal government and the Bundesrat varied substantially across time, each round of policy-making underlying the transposition of the Nitrates Directive had its 57 own dynamics. On that account, and in order to discuss my research questions in the light of the scientific literature, the following chapters elaborate on each of these political episodes.

7.1.3.1 The Policy Process Leading to the Adoption of the first National Action Programme (April 1991- January 1996)

Research Question 1: Reasons Behind the Delay in the Adoption of the NAP

In line with earlier EU implementation literature (Haverland, 2000; Bähr, 2006), Germany’s transposition of the Nitrates Directive got delayed because parties across different decision-making bodies disagreed on the suitable policies. Moreover, dissent within the relevant decision-making bodies materialized. Empirical evidence suggests that the contention between the agricultural and environmental committees of the Bundesrat was partly driven by party politics, too. The committees assemble the ministers of the bundesländer and as shown by Pappi, Schmitt and Linhart (2008), different parties tend to hold different state ministries. The CDU/CSU typically controls the agricultural ministries, whereas the SPD and particularly the Green Party are more likely to occupy the environmental ministries. In the mid-1990s, there were multiple coalition governments between the CDU/CSU and the SPD at the state level, which suggests that the former party was better represented in the agricultural committee, whereas the latter had a stronger presence in the environmental committee of the Bundesrat. This party-political ‘division of labour’ could help explain why the environmental committee favoured stricter fertilization regulations than the agricultural committee.

Similarities between the suggestions which the opposition in the Bundestag and the environmental committee in the Bundesrat formulated to amend the government’s draft for a Fertilization Ordinance corroborate the assumption that party politics mattered for the policy process within the Bundesrat. Both the Social Democrats and the Green Party seem to have used the political leverage of their party members in the bundesländer to tighten Germany’s nitrate policies (party-political venue shopping).

Party politics does not explain all features of the political controversy which delayed the adoption of the NAP, however. Dissent between state ministers of post-exceptionalist parties suggests that the bundesländer drew also on the Bundesrat to promote their respective regional interests. This observation matches the work by Vogeler et al. (2019), who find that state governments disagreed on the need to amend the Fertilization Ordinance in the 2010s because they were not equally affected by nitrate pollution. Besides, the dispute between environmental and agricultural policy-makers resulted not only from different partisan affiliations, but also from the policy-makers’ identification with their respective policy field. Besides the committees, this fact is most evident in the dispute between the environmental and agricultural ministers, even though both belonged to the same party. It is a valuable insight for PEF scholars focusing on Europe who distinguish members of government primarily based on their partisan affiliation (Green-Pedersen and Wolfe, 2009; Schiffino, Ramjoué and Varone, 2009).

The original model of the PEF explains differences in opinion between office holders through its emphasis on policy venues that are receptive to different societal demands, based on the policy area which they serve (Baumgartner and Jones, 1993; Sheingate, 2000). Likewise, in their criticism of the 58 compartmentalized nature of German water, food and energy governance, Vogeler et al. (2019) argue that decision-makers tend to focus on the interests of their respective policy field. My research results suggest that both factors, i.e. its party-political composition and its inherent responsiveness to certain societal objectives, mattered for the role which a policy venue played in nitrate policy-making.

Research Question 2: Reasons Behind the Non-Compliance of the NAP with the Nitrates Directive

Due to the suggestions of the Bundesrat’s environmental committee, the Fertilization Ordinance which was eventually adopted in 1996 was stricter than the federal government had originally envisioned. Germany’s NAP of 1996 would most likely have been even less compatible with the Nitrates Directive without the influence of the bundesländer. This finding is an important lesson for EU implementation researchers like Haverland (2000) and Bähr (2006), who emphasize that a greater number of policy venues (or, in their language, institutional veto points) obstructs the proper transposition of EU law.

Baumgartner and Jones (1993) contend that the interplay of different policy venues can either block or facilitate policy change but as mentioned in the preceding chapter, the focus on venue shifts in the original PEF does not suit my study case. By contrast, the ‘party politics’ variant of the PEF helps explain how the existence of several policy venues scaled up Germany’s NAP in a context of party-political contest. Somewhat similar to their Danish counterparts (Andersen and Hansen, 1991; Green-Pedersen and Wolfe, 2009), the German exceptionalist parties struggled to balance two distinct goals. On the one hand, the governing parties Christian Democrats and Liberals presented themselves as guardians of farmers’ economic interests. On the other hand, however, both parties recognized aquatic nitrate pollution as an environmental problem worthy of government action. Accordingly, the government eventually gave in to some of the policy suggestions raised by the environmental committee in the Bundesrat which it had rejected beforehand, when the opposition in the Bundestag formulated similar demands, to facilitate a compromise across the two decision-making bodies involved in the transposition. Following the work of PEF scholars like Green Pedersen and Wolfe (2009), as well as Carter and Jacobs (2014), one can argue that the government thus sought to prevent the reputational losses which could have emanated from a failure to adopt the Fertilization Ordinance and which would have benefitted its political adversaries owning environmental protection as a partisan quality.

Nonetheless, the Fertilization Ordinance which entered into force in 1996 reflected the policy preferences of the federal government and the agricultural committee of the Bundesrat much more closely than the suggestions by the environmental committee. This observation is remarkable because states governed by post-exceptionalist parties were strongly represented in the Bundesrat at that time. One explanation might be that coalition governments across the two camps which divided the government and the opposition at the federal level (i.e. between the CDU/CSU and the SPD, or the SPD and the FDP) voted in favour of the ordinance. As shown by Schiffino, Ramjoué and Varone (2009), although partisan lines of conflict are often very persistent, parties do change their stance on an issue sometimes, e.g. when they form part of a coalition government. On that account, the Social Democratic parties at the state level might have given in to their coalition partners to maintain a functioning government, or to gain the CDU’s or FDP’s approval for other policy projects. 59

The post-exceptionalist SPD and Bündnis 90/Die Grünen might also have yielded to their political opponents to avert a negative reputation among farmers, particularly given the uncertain effects which individual nitrate policies would have on agricultural production. Using the terminology of Green- Pedersen and Wolfe (2009), one can say that economic and environmental issue ownership drove political concessions in both directions. Just as the CDU/CSU and FDP tried to prevent the impression that only the three left-wing parties cared about the environment, the post-exceptionalists were eager to convey that the Christian Democrats and Liberals were not the only ones taking the farmers’ economic interests seriously.

In the Bundestag, however, all opposition parties criticized the new Fertilization Ordinance. This finding shows that in a federal polity like Germany, representatives of the same party do not always agree across political levels. Policy decisions of state governments might also be informed by the interests of the respective bundesland or strategic considerations vis-à-vis regional political opponents or coalition partners. This intertwinement of party-politics with the distribution of political competences across government levels has hitherto not been studied in depth by either the PEF or the EU implementation literature, although it seems highly relevant in federal parliamentarian systems.

7.1.3.2 The Policy Process Leading to the First Two Amendments of the National Action Programme (February 1996-January 2006)

Research Question 3: Reasons Behind the Delay in the Amendment of the NAP

A reform of the NAP was only initiated in 2003 because of the limited interest which the parties showed for the nitrate issue beforehand. This finding confirms the PEF’s conceptualization of political attention as an essential, yet scarce currency in the policy process (Baumgartner and Jones, 1993; Green- Pedersen and Wolfe, 2009). When the government eventually embarked on a profound revision of the Fertilization Ordinance, dissent with the Bundesrat turned into an obstacle to policy reform. In line with the findings of EU implementation scholars like Haverland (2000) and Bähr (2006), an institutional veto point, namely the Bundesrat, blocked the policy process due to its party-political composition (i.e. a dominance by exceptionalist parties).

Coalition politics, on the other hand, did not hamper the policy process. This finding is compatible with the EU implementation literature, which emphasizes that multi-party governments impede the implementation of European directives only if the coalition partners hold strong, opposing policy preferences on a subject matter (Toshkov, 2008). And evidence from the 1990s and 2000s indicates a close alignment between the attitudes of the SPD and Bündnis 90/Die Grünen à propos the nitrate issue. Besides, both relevant ministries were controlled by the same party, which might have facilitated compromise-seeking. Admittedly, as seen in the 1990s, disagreement can also emerge between ministers of the same party if the societal goals which they pursue clash with one another. The fact that this did not occur in the 2000s suggests that party-political leadership can alter the course of a ministry significantly. In line with the Green agricultural minister’s endorsement of an environmentally-oriented

60 agricultural policy transition (‘Agrarwende’) (Feindt and Ratschow, 2003), the agricultural ministry did not object the suggested nitrate policies.

Research Question 4: Reasons Behind the Successful Amendment of the NAP in Line with the Nitrates Directive

Through the lens of the EU implementation literature (Treib, 2003; Sedelmeier, 2009; Avdeyeva, 2010; Spendzharova and Versluis, 2013), the substitution of the Green Party with the CDU/CSU in the federal government coalition in 2005 appears as an obstacle to policy reform because the latter party had long opposed a major tightening of the NAP. Surprisingly, however, the new executive and the Bundesrat, where exceptionalist governments still possessed a majority, ended up accepting most of the policy suggestions of the previous post-exceptionalist federal government. This approval can be ascribed to pressure from the European Union, which gave specific instructions on how to transpose the Nitrates Directive and thereby helped overcome the resistance of the exceptionalist parties. In this case, demands and warnings from the European Commission turned out to be the single most important influence factor for bringing the German NAP into line with the Nitrates Directive.

In relation to the recent EU implementation literature, this finding shows that the power which Euro- pean authority can have on political dynamics in the member states must not be underestimated. Na- tional decision-makers might oppose policy reform at first, but give in eventually if non-compliance with EU law becomes too risky. Moreover, the about-turn of the German exceptionalists emphasizes the contribution which legal clarity of European provisions – coupled with the threat of another infringement procedure – can have on national policy reform, as it prevents the more status quo oriented domestic forces from interpreting EU law in their favour.

In the end, however, the NAP of 2006 did not reduce nitrate pollution sufficiently to reach the goals of the Nitrates Directive. This outcome, coupled with the lack of attention in the early 2000s, suggests that even the post-exceptionalist parties which prepared this ordinance underestimated the nitrate problem. On the other hand, these two parties might also have lowered their own regulatory ambitions in anticipation of resistance in the Bundesrat, in order to raise the chances of an agreement. In this round of policy-making, as suggested by EU implementation scholars like Haverland (2000) and Bähr (2006), a government in a unitary state, without interference from other policy venues, might have adopted more far reaching and faster reforms.

7.1.3.3 The Policy Process Leading to the Third Amendment of the National Action Programme and the Political Debate until the 2nd ECJ Verdict (February 2006-June 2018)

Research Question 5: Policy Reform Plans Before the Publication of the 2012 Nitrate Report

The fact that the German decision-makers did not consider a reform of the NAP before 2012 confirms once more the importance which PEF scholars put on (party-) political attention as a precondition for policy reform (Baumgartner and Jones, 1993; Green-Pedersen and Wolfe, 2009). National and international trigger factors were necessary to make the political parties in the legislature and the executive strive for an amendment of the national fertilization legislation. 61

Research Question 6: Reasons Behind the Delay in the Amendment of the NAP

Besides party-political dissent between the government and the Bundesrat which already characterized earlier policy processes concerning the NAP, the reform of the fertilization legislation in the 2010s was also delayed by party-political conflict within the government. This finding conforms with EU implementation scholars who argue that coalition governments can retard the transposition of EU law if the governing parties have conflicting policy preferences (Treib, 2003; Toshkov, 2008).

Unlike the findings by Schiffino, Ramjoué and Varone (2009), the different-minded parties which formed the federal government in the 2010s did not try to prevent the reform process so as to avoid intra-governmental conflict. Rather, in the light of scientific warnings and the prospect of an EU infringement procedure, the coalitioners agreed on the need for change but clashed on the right policy approach. Claims by the opposition that the government – and especially the CDU/CSU – delayed the policy process because of its reluctance to constrain agricultural production could not be validated by my thesis. Such intentional delay of policy measures which interfere with a party’s principal policy concerns would fit earlier EU implementation research, however (Treib, 2003).

As in previous policy-making, dissent on the NAP was not only driven by partisan considerations and divergent regional interests between the bundesländer. Disagreement between environmental and agricultural policy-makers materialized as well. Yet, influences which the partisan background and the responsibility for a specific policy field exercised on the preferences of individual policy-makers cannot be neatly disentangled on the basis of my empirical data. Throughout the policy process, the federal agricultural ministry was run by an exceptionalist party, and the environmental ministry was controlled by a post-exceptionalist party. Moreover, the party-political composition of the state governments and the findings about preferred ministries of individual parties by Pappi, Schmitt and Linhart (2008) suggest that post-exceptionalist parties were better represented in the environmental committee of the Bundesrat, whereas the agricultural committee featured more exceptionalists.

Research Question 7: Reasons Behind the Non-Compliance of the NAP with the Nitrates Directive

Given the dispersion of decision-making competencies across parties and policy venues, the amended fertilization legislation constituted a broad compromise. Following Green-Pedersen and Wolfe (2009), and similar to the 1990s, one can view the willingness for compromise among exceptionalist parties at the state and federal level as a strategy to prevent reputational losses to parties with a strong environmental profile. Both the CDU/CSU and the FDP recognized the need to address aquatic nitrate pollution and wanted to prevent a (financially and politically) costly ECJ verdict. However, the (limited) policy change which they supported required an agreement with the post-exceptionalist parties in the government and Bundesrat, which favoured tighter fertilization regulations. Failure to come to an agreement would have left the existing legislation untouched, presented the government as unable of act- ing, and assured a negative judgment of the ECJ. This situation resembles Danish nitrate politics, where Liberals and Conservatives gave in to certain environmental policy demands of their opponents to

62 prevent negative publicity on the nitrate issue and boosts to the credentials of the parties owning environmental protection as a partisan quality (Green-Pedersen and Wolfe, 2009).

In line with findings by Schiffino, Ramjoué and Varone (2009) and Schaub (2019) that party-political profiles can evolve over time, one might also interpret the concessions of the Christian Democrats and Liberals as slight moves towards post-exceptionalism/interventionism. Given the reluctance with which particularly the CDU/CSU followed suggestions from post-exceptionalist parties, these moves must have been fairly minor, however. Accordingly, it can be assumed that as the singly governing party in a unitary state with a majority vote system, the Christian Democrats – by far the largest party at the same (see tab. 4 in appendix B) – would have adopted less rigorous fertilization regulations. As in the 1990s, this finding questions the traditional assumption in the EU implementation literature that a greater number of policy venues hampers policy change (Haverland, 2000; Weale et al., 2002; Giuliani, 2003; Bähr, 2006).

It is also noteworthy that the German Christian Democrats mentioned Denmark as a negative example of nitrate policies which undermined agricultural production– although some of these regulations had been adopted by the Danish Conservatives and Liberals (Green-Pedersen and Wolfe, 2009). These statements reveal that the willingness to countenance environmentally-oriented policy reform among exceptionalist parties in Germany was lower than in Denmark.

Despite certain concessions by the CDU/CSU and FDP, the novel German NAP which was adopted in 2017 failed to satisfy the European Commission. This fact draws attention to the post-exceptionalist parties which agreed to the insufficient new fertilization legislation. In the federal government coalition, the SPD fought hard for strict nitrate policies, but in the end approved of a compromise with the Christian Democrats. As shown in chapter 6.4.3, the approval was founded on the belief that the SPD had negotiated the furthest reaching agreement which could have been achieved. This fact underlines the constraints faced by a post-exceptionalist party seeking agricultural policy change in a coalition with an exceptionalist partner.

Internal coalition negotiations were not explored in greater detail in my research but the scientific literature which informed this thesis helps formulate certain assumptions about what drove the SPD’s positioning vis-à-vis its coalition partner. First, although the Social Democrats treated nitrate pollution from the farming sector as a serious environmental problem, scholars suggest that agricultural policy holds an even greater importance for the Christian Democrats, whose identity is closely tied to agricultural interests (Tosun, 2017; Schaub, 2019). Moreover, environmental protection is no unique political ‘selling point’ for the German Social Democrats, due to the growing success of the Green Party. This party-political set up contrasts with the Danish context, where the Social Democrats are the great- est environmental advocate besides a fairly minor Green Party (Green-Pedersen and Wolfe, 2009; Duregård, 2018). On that account, the SPD might have given in to its coalition partner to ensure the government’s continuous viability and gain the CDU/CSU’s support for other policy projects more central to the SPD’s political profile (e.g. social policy).

On top of that, following the work of scholars like Treib (2003), Martin and Vanberg (2004), Abels (2013) and König and Luig (2014), one may assume informational advantages of the CDU/CSU in the intra-governmental negotiations because this party controlled the agricultural ministry. Although both the environmental and the agricultural ministry were involved in the policy formulation, the concrete regulations which they devised concerned the main field of competence of the agricultural ministry, namely agricultural practices. Based on the expertise of his bureaucracy, the agricultural minister might have dismissed policy suggestions by the environmental minister as unpractical. And given the scope of ambiguity about the effects which specific measures would have on the farming sector, it might have been difficult for the environmental minister to validate such claims.

In line with the work of Martin and Vanberg (2004), Abels (2013), as well as Kim and Loewenberg (2005), my research shows that SPD spokespersons of agricultural policy in the Bundestag functioned as correctives to the CDU/CSU’s agricultural policy approach. Based on their specialized knowledge, these parliamentarians engaged in the negotiations about the new fertilization legislation, thus supporting their party member in the environmental ministry. Yet, it seems doubtful whether their expertise constituted a sufficient counterweight to the resource-rich agricultural ministry.

It is also noteworthy that as a governing party, the Social Democrats joined into the CDU/CSU’s warnings about the economic effects of water protection measures. One can assume that as in the 1990s, economic and environmental issue ownership drove political concessions in both directions. The output of the coalition negotiations (i.e. a NAP which the European Commission rejected as insufficient) suggests that in a context of uncertainty and complexity, the SPD’s economic concerns were greater than the CDU/CSU’s environmental concerns.

In the Bundesrat, several bundesländer governed by one or more post-exceptionalist parties approved the novel fertilization legislation. Here again, informational imbalances between environmental and agricultural policy-makers in line with the reasoning of König and Luig (2014) might help explain why these parties voted in favour of policy output which was later proven to violate the Nitrates Directive. However, post-exceptionalist ministers in the environmental committee should have been able to receive cues from the post-exceptionalist ministers which did exist in the agricultural committee, given the presence of numerous coalition governments exclusively among post-exceptionalists parties.

Another factor which might have facilitated the consent of post-exceptionalist policy-makers in the Bundesrat to the novel fertilization legislation relates to the fact that all state governments featured at least one of the federal coalition partners. The post-exceptionalist members of these governments might have moderated their criticism in order to preserve their political coalitions. Additionally, post- exceptionalist state ministers might have proven responsive to the agricultural interests in their respective bundesländer. One could even think of some sort of division of labour, with the federal branch of a party (which forms part of the opposition in the Bundestag) voicing stronger environmental criticism than the regional chapters of this party (which are more constrained due to their governmental responsibility). However, such a strategy would jeopardize the consistency and uniformity of a party’s political profile (Houten, 2009). 64

Moreover, as mentioned in chapter 6.4.3, post-exceptionalist party representatives at the state level did perceive the achieved policy compromises as some steps forward. They might have considered these compromises to be better than no agreement whatsoever, given the protracted political dispute and their sense of urgency concerning the nitrate issue. The fact that the features of the new legislation became only known bit by bit, and hence the effectiveness of the new NAP was only unveiled more clearly at the end of the reform process, might have heightened the willingness to compromise among the post-exceptionalists over the course of the policy process as well.

Ultimately, my findings render also support to Nimmo Smith et al.’s (2007) criticism of the vague stipulations of the Nitrates Directive. Although the European Commission did specify its expectations vis- à-vis the German government in bilateral negotiations, it apparently did not provide legal clarity. Oth- erwise, there would not have been dissent and uncertainty among the parties concerning the compat- ibility of the new fertilization legislation with the Nitrates Directive.

7.1.4 Synopsis In summary, my decision to follow cleavage theory, the PEF as well as the recent EU implementation literature and focus on party politics to understand Germany’s flawed transposition of the Nitrates Directive was very illuminating. As shown on the following page, my conceptual model has by and large proven its value, although some additional features can be added in the light of my empirical evidence. The political decision-makers pursued the preferences of their party quite consistently throughout the policy process. Consequently, based on their party-political composition, different policy venues served alternately as a pressure for, or impediment to, policy reform. However, besides partisan affiliations, the policy preferences of politicians were also guided by their responsibility for a specific policy field and regional interests of the bundesländer which they represented. Strategic considerations vis- à-vis their coalition partners might have played a role as well (e.g. in the form of vote trading between parties’ ‘pet’ policy fields), but this presumption could not be fully validated by my research.

In terms of catalysts of policy reform, the attention-capturing impact of monitoring results can be emphasized. Implementation pressure from the European authorities, in turn, helped not only draw attention to the nitrate issue, but was also instrumental in bringing about stricter fertilization regulations, as it strengthened the policy position of post-exceptionalist parties. Nonetheless, the transposition of the Nitrates Directive was

• delayed because of the profound dissent between exceptionalist/(boundedly) market liberal and post-exceptionalist/interventionist parties, agricultural and environmental policy-makers and representatives of the federal state and the sixteen bundesländer • insufficient because of the strength of exceptionalist/ boundedly) market liberal parties, and the accommodating steps of post-exceptionalist/interventionist parties towards them.

Appendix D summarizes my research results in relation to the key assumptions of cleavage theory, the Punctuated Equilibrium Framework and the EU implementation literature.

Other factors besides political cleavages which determine the positions of political decision-makers • Regional interests of the bundesland which a decision-maker represents • Responsibility for a policy field

Party system attract polit- Catalysts of policy ical atten- reform tion and challenge/accommodate • National events e.g. strengthen Policy output environmental dis- the policy generates asters Post-exceptionalist & Exceptionalists & • Timely/delayed transposi- • Monitoring results state interventionists (bounded) market liberals tion the Nitrates Directive • Legal obligation to • (In)adequate transposition position of comply with EU law post-excep- of the Nitrates Directive and implementation tionalists/ resist/accommodate pressure by the Eu- state inter- ropean Commission ventionists

determines the political leverage of individual parties

Party-political composition of relevant policy venues Factors which determine the type and number Factors which determine the party-political of relevant policy venues composition of the relevant policy venues • Constitutional distribution of power • Electoral results • Chosen transposition path • Coalition formation: - Selection of coalition partners - Distribution of ministries

Fig. 8: Revised Integrated Conceptual Model of the Policy Process underlying the German Transposition66 of the Nitrates Directive (Own Compilation, Based on the Previously Presented Literature and my Empirical Findings)

Fig. 9: Revised Integrated Conceptual Model of the Policy Process underlying the German Transposition of the Nitrates Directive (Own Compilation, Based on the Previously Presented Literature and my Empirical Findings) 7.2 Discussion of the Research Scope and Design

The case study research design of this thesis proved very useful for the pursuit of my research objective because it generated in-depth knowledge about the complex dynamics underlying Germany’s transposition of the Nitrates Directive. This profound knowledge helped me assess the explanatory power of my conceptual model and enlightened the scientific literature which informed my research. The case study research design was also able to identify new influence factors beyond the findings of my literature review. My research approach proved particularly insightful in comparison with the work by Schaub (2019) because I was able to expand on this author’s findings about party positions and gain a deeper understanding of the nitrate policy-making processes.

The close examination of one individual case allowed me to engage in some empirically grounded counterfactual thinking (Fearon, 1991). My research uncovered empirical instances in which the lack of involvement of additional policy venues (e.g. the environmental ministry or the Bundesrat) would most likely have yielded even less ambitious policy output, for example.

The scrutiny of the entire transposition process of the Nitrates Directive turned out to be worthwhile as well because it allowed me to uncover both general trends in German nitrate politics and the unique features of each round of nitrate policy-making. Despite my focus on one country, the longitudinal design provided my thesis with comparative research features as I juxtaposed different time periods. This research approach enabled me to investigate the policy-making dynamics under different party- political conditions and thereby gain a well-grounded empirical basis for my theoretical inferences.

The selected data sources provided a wealth of useful empirical insights. Admittedly, many documents which I analysed stemmed from a political organ without formal decision-making power in the policy process (the Bundestag). Nonetheless, the Bundestag was a central public arena for party-political debate about the nitrate issue.

One challenging aspect of the analysis was the large quantity of gathered data. Another research strategy would have yielded a smaller number of documents, e.g. if I had restricted myself to legislative proceedings dealing exclusively with the implementation of the Nitrates Directive or if I had used narrower search terms. However, I decided in favour of a very comprehensive document analysis to gain a rich and deep understanding of German nitrate policy-making. This decision paid off. While there were few motions, debates and interpellations which dealt exclusively with the Fertilization Ordi- nance/ Nitrates Directive, political parties addressed the nitrate issue quite frequently in general legislative proceedings. Studying these proceedings allowed me to understand how a party’s perspective on nitrate pollution was embedded in its overall stance on agricultural policy.

The key words *Düngeverordnung* (Fertilization Ordinance) and *Nitrat* (nitrate) which I chose to gather relevant legislative proceedings proved suitable as well. Empirical results yielded by both of them were very similar, which can be attributed to the fact that the Fertilization Ordinance is Ger- many’s central policy instrument to reduce aquatic nitrate contamination and implement the Nitrates Directive. In those cases where they differed, the results complemented each other in valuable ways 67 because documents dealing only with ‘nitrate’ gave a more detailed insight into party-political problem understandings, whereas documents focusing on the Fertilization Ordinance related more closely to the policy process. Searching for documents containing the key word *nitrate* (rather than e.g. *Ni- trates Directive*) corresponded with my assumption that German nitrate politics was driven by both national and European influence factors. Accordingly, my data basis provided a good account of how concerned parties were about nitrate pollution – and not just Germany’s legal obligation vis-à-vis the EU – and how these concerns shaped their view on the need for policy action.

Besides, my qualitative analysis revealed that parties did not always call the Nitrates Directive by its name when talking about it, referring instead simply to infringement procedures concerning aquatic nitrate pollution, for example (SPD government reply 17.06.2016). Since the source of the policy problem (nitrate) was always mentioned, my search terms were able to capture such statements. The key word *nitrate* also helped uncover information about the more recent ordinances which complement the Fertilization Ordinance. In sum, narrower search terms and fewer documents would have excluded important information from my research. And the systematic structuring of my empirical data through coding allowed me to draw meaningful conclusions from the rich and multi-faceted research results.

The comparison of the different versions of the Fertilization Ordinance across time, and the policy suggestions which were formulated concerning this ordinance, turned out to be time-consuming, but rewarding. This data enabled me to cross-check the parties’ general declarations with their concrete policy suggestions and examine whose preferences the ultimate policy output suited. A comparison of the suggestions and eventual output concerning the other pieces of the fertilization package adopted in 2017 might have added more details, but based on my superficial examination of this data, I argue that the added value would have been limited, compared with the extra time effort needed.

Overall, as intended, the different data sources complemented each other in fruitful ways and helped cross-validate the gathered information. The same can be said about methodological triangulation. Data about the party-political attention to the nitrate issue across time (gathered through quantitative topic coding) was enriched with more detailed information about partisan problem understandings and policy preferences (gathered through qualitative content analysis), for instance.

Differences in research scope and design limit the comparability of my results with those of other scholars. Green-Pedersen and Wolfe (2009) discuss the nitrate-related policy positions of the Danish parties in far less detail than my thesis, for instance and do not spell out the policy process (e.g. the extent to which agricultural and environmental ministers were involved in the drafting of the Action Plans on the Aquatic Environment). A full-fledged comparative research design, with similar data collection and analysis methods for Germany and Denmark, could have provided a better understanding of why Germany adopted less ambitious and timely nitrate policies than Denmark, and why more EU pressure was necessary for the initiation of policy reform in Germany. Such a research project lay beyond the feasible scope of this master’s thesis, however, given the long time span under consideration and the level of detail with which I approached my study case. A greater degree of generalizability was thus foregone for the sake of deeper knowledge about the German political context.

Another shortcoming of my thesis relates to the concentration on nitrate politics within the formal decision-making bodies of the state, although existing research on agricultural politics in Germany points to close ties between political parties and interest groups, as well as to some saliency of the nitrate issue in the media and the general public (Conrad, 1990; Tosun, 2017; IAW, 2019; Schaub, 2019; Vogeler et al., 2019). In my study, external events, processes and actors which influenced the policy process were only captured indirectly (if politicians mentioned them in the legislative arena) and not discussed in greater detail. On the one hand, this research scope addressed key features of the German transposition of the Nitrates Directive because no policy could have been adopted or amended outside the official policy venues, and without the consent of the party-political actors operating within these venues. Besides, assuming that policy-makers use the legislative arena to emphasize those circumstances and occurrences which they deem most important vis-à-vis a subject matter, my research approach provided for a pre-selection of external factors which really mattered in the formal policy process (e.g. the European infringement procedure or the advocacy by the farmers union).

On the other hand, however, the focus on the official bodies of the state prevented me from painting a larger picture of German nitrate politics. Based on my investigation, I could not assess the societal context in which the adoption and amendment of the NAP took place more thoroughly e.g. concerning the role of public opinion, the media and interest groups. In the parliamentary protocols which I analysed, opposition parties criticized Christian Democratic agricultural ministers repeatedly for clientele politics vis-à-vis the farmers union, for instance. My research approach was unable to corroborate these claims.

Again, a scrutiny of larger socio-political influence factors would have been particularly insightful from a comparative perspective because Green-Pedersen and Wolfe (2009) emphasize the role of public problem awareness and non-state actors in their study on Danish nitrate politics. However, a broader research focus, with a closer examination of socio-political factors beyond party politics, was not feasible in the context of this thesis.

Moreover, since my data analysis was limited to official documents, I mainly traced the formal stages of the policy process which are documented in a publicly accessible way. Consequently, this thesis cannot illuminate occurrences at the ‘backstage’ of the political decision-making bodies, e.g. the inter- ministerial negotiations. Additionally, my research approach was unable to gain a deeper understanding of the motives underlying certain policy decisions. As shown in chapter 7.1.3, I could only speculate about the reasons why post-exceptionalists approved legal amendments which were later found to fall short of the Nitrates Directive, for example. Originally, I had intended to conduct interviews for the purpose of this thesis to also illuminate less publicly visible dynamics in the policy process. This plan could not be realized however, because important stakeholders did not want to comment on the subject matter in the light of ongoing and very delicate political negotiations.

Finally, it must be acknowledged that Germany’s failure to comply with the Nitrates Directive is not only related to de jure implementation, but also to de facto implementation (Salomon et al., 2016;

Vogeler et al., 2019). The latter dimension of the implementation process was deliberately excluded from my research.

7.3 Transferability of the Results

The case study research design of this thesis limits the generalizability of my empirical findings (Yin, 2017). Nonetheless, my research contributes to the expansion of scientific knowledge because my empirical findings are based on comprehensive empirical data and critically discussed against the backdrop of existing scholarly work. On the one hand, my thorough empirical research and its scientific embedding help corroborate or qualify earlier scholarly insights. And on the other hand, they allow me to identify new influence factors which the scientific community has hitherto neglected.

As manifest in the PEF and EU implementation literature cited in chapter four, policy processes do not unfold uniformly across political contexts, policy sectors and different time periods. Although my research confirms the presence of some universal or at least widespread features of policy-making (e.g. the fluctuation of political attention or the importance of cleavages for party-political contest (Baumgartner and Jones, 1993; Green-Pedersen and Wolfe, 2009; Schaub, 2019)), there is still many other case-specific influence factors (e.g. concerning the types of relevant political parties, the prevalence of coalition governments and the dispersion of policy-making competences across governmental levels and departments). Accordingly, my findings about Germany’s transposition of the Nitrates Di- rective cannot serve as a blueprint for the transposition of this directive in other EU member states or the transposition of other EU directives in either Germany or other EU member states.

What they can do, however, is to guide future research projects in the selection of relevant aspects to look out for in the empirical world which they wish to study. The selection of an extreme case (as Germany has a distinctly poor implementation score vis-à-vis the Nitrates Directive, and the adoption and reform of the German NAP was highly contentious) makes my case study particularly insightful for further research on EU implementation processes and party politics (Flyvbjerg, 2006, p. 229). Chapter 7.4 discusses in which regards this thesis can be the starting point of future research. Additionally, and as will be shown in chapter 7.5, European and national policy-makers can utilize my findings to get a better grasp of influence factors which might facilitate or hamper the transposition of EU law. In line with Flyvbjerg (2006, p. 228), I argue that the strength of case study research such as mine lies in the “force of example”, i.e. deep insights into what matters in one policy process – and hence might matter in others as well – and why.

7.4 Implications for Further Research

Various fields of worthwhile further inquiry emerge from this thesis, particularly with view to party politics. Future research on the German transposition of the Nitrates Directive could examine the bar- gaining between different-minded parties within or across decision-making bodies more closely, e.g. via interviews. Building upon the work of König and Luig (2014), scholars could investigate the role which divergent informational resources played in the negotiations between the CDU/CSU-led

70 agricultural ministry and the SPD-led environmental ministry in the 2010s, for instance. Such research could illuminate the implications of uncertainty and complexity for policy-making in a context of conflicting policy goals.

It would also be interesting to scrutinize why party representatives at the state or federal level at times gave in to their political competitors. Were they driven by strategic considerations vis-à-vis their coalition partners? Or did they actually change their policy priorities? Answers to these questions are valuable for cleavage theory and the party-centred variant of the PEF because they could help elucidate how stable partisan lines of conflict are, and under what conditions they change. Current societal and political dynamics (e.g. the growing polarization between environmentalists and farmers (MDR Aktuell, 2020; NDR 1 Niedersachsen, 2020; Nowack and Hoffmann, 2020), the formation of new party-political coalitions e.g. between the CDU/CSU and the Green Party (Schaub, 2019) and the recent transformations of party systems in Germany and other countries) stress the importance of such investigations.

The German transposition of the Nitrates Directive may also be used to examine (inter-/intra) party politics across government levels more closely. Such research could connect to the work of Houten (2009) and Müller (2013), who investigate the relation between national parties and their regional branches, for instance. It could contribute to the further development of the party politics centred variant of the Punctuated Equilibrium Framework, which has hitherto neglected the party-political dynamics in multi-level polities. German nitrate politics provides an interesting empirical study case for such research, given the differences in the partisan majority ratios, the composition of the executive and the affectedness by nitrate pollution between different bundesländer, and the responsibility of the bundesländer for the de facto implementation of the Nitrates Directive.

Additionally, it seems worthwhile to study the broader societal context of German nitrate policy-making beyond party politics in the formal decision-making bodies. Further studies could trace the role of interest group activity, public opinion and media coverage during the transposition of the Nitrates Di- rective more closely. Building upon existing scholarly work, such research could investigate

• the influence which the media, public opinion and non-state actors exercised on the positioning of (party-political) decision-makers (Baumgartner and Jones, 1993; Soroka, 2003; Green- Pedersen and Wolfe, 2009; Anderson, Böhmelt and Ward, 2017), • the influence which party-political frames exercised on public opinion (Slothuus and Vreese, 2010; Bolsen, Druckman and Cook, 2014) or • the operations of coalitions between parties and other political actors, e.g. interest groups, that jointly seek to shape public debate and attain policy change (Coe, 2012; Hurka and Nebel, 2013; Sotirov and Winkel, 2016).

Research on the interplay between parties, the media, interest groups and/or public opinion in Ger- man nitrate politics connects well with the scientific literature which informed my thesis. Such research is meaningful to illuminate the dynamics of framing, a key concept of the Punctuated Equilibrium Framework, for instance (Baumgartner and Jones, 1993). It could compare the findings of Mondou,

Skogstad and Houle (2014), who attribute the strength of policy images to public values and the skilful policy image management by coalitions of different political actors, with another policy context.

My research could also be juxtaposed with a study of other environmentally-oriented reform processes in the German agricultural policy sector, so as to illuminate the representativeness of my results concerning the role and interactions of different parties and policy venues. Moreover, my empirical findings could be compared with the transposition of the Nitrates Directive in other EU member states. Scholars might collect additional data on Danish nitrate politics to make the study by Green-Pedersen and Wolfe (2009) and my own work better comparable. Alternatively, scientists might scrutinize party politics in other EU member states struggling with nitrate pollution. Worthwhile research foci include the composition of the party system, the policy positions and political leverage of individual parties, as well as the role of interest groups, public opinion and media coverage. Such research could help understand why some countries adopted more timely and ambitious nitrate policies than others.

On a more general level, EU implementation processes seem an ideal subject matter for the comparative strand of the Punctuated Equilibrium Framework because EU directives make a large number of countries tackle the same issues at the same time – yet empirical evidence from the German and Dan- ish transposition of the Nitrates Directive demonstrates that national policy processes may nonetheless unfold in highly divergent ways. This fact suggests that EU implementation processes could be scrutinized in ways that would contribute to the further development of the PEF literature. It seems particularly worthwhile to examine the effects of different political systems, e.g. in terms of institutional set-up and the features of the party system, on the content and timeliness of policy output in further studies with a larger N research design (Baumgartner et al., 2009; Green-Pedersen and Wolfe, 2009). Research on European countries with multiple policy venues and strong parties like Germany could benefit from a cross-fertilization of the traditional and the more recent, party-centred variant of the PEF, e.g. through a scrutiny of the effects which the party-political composition and issue field of a policy venue, respectively, have on the role which this venue plays in the policy process.

Additionally, my research raises more abstract questions about the role of political parties in democratic systems. On the one hand, this thesis confirms that party-political cleavages draw attention to policy issues, and that issue ownership by one party can move its competitors to make concessions. On the other hand, however, my results show how difficult it is for parties with deeply engrained, conflicting policy preferences to come to an agreement. A compromise might eventually be reached but might fall short of the actual need for policy change.

Deliberative democracy has recently been suggested as a strategy to foster societal consensus for far- reaching policy change (Bäckstrand et al., 2010). It is centred around political decision-making through reasoned deliberations, in which different-minded actors converge on the better argument (Dryzek, 2000). Political parties have hitherto been largely neglected in this novel field of democratic theory, as their partisan nature was considered an obstacle to open-ended deliberation (Biezen and Saward, 2008). This omission seems detached from reality, however, given the omnipresence of parties in mod- ern politics. Consequently, scholars have recently begun to examine the potential for parties to engage 72 in deliberative practices (Johnson, 2006; Biezen and Saward, 2008). Their work builds a bridge between the empirical study of party politics and the more abstract thinking of democratic theory (Biezen and Saward, 2008). Further research seems due, e.g. concerning the degree to which ideological divides between parties help structure political debate (Manin, 1987; Christiano, 1996) or hamper attitudinal change, and the possibilities for parties to cede to the arguments of their opponents without losing their distinct political profiles. Empirical studies on party-political conflict such as the one characteriz- ing Germany’s transposition of the Nitrates Directive can provide valuable cues for theorists interested in the potential for deliberative democracy. It seems worthwhile to reflect upon the conditions under which a more adequate and timely NAP could have been achieved in Germany even in the context of conflicting party positions and a great amount of complexity and uncertainty.

7.5 Practical Implications for Policy-Making 7.5.1 Practical Implications for the Domestic Transposition of (Environmental) EU Directives

Lesson #1: Raise and maintain political attention to policy problems

Political attention is evasive, but can be intentionally fostered, e.g. through regular monitoring activities and open communication of the monitoring results. If an EU directive lacks monitoring requirements to trace member state performance, policy-makers can be advised to devise some to hold themselves and their successors accountable. It European monitoring requirements do exist, their impact can be heightened if the monitoring results are being widely published and discussed.

Lesson #2: Foster shared problem understandings

My empirical findings suggest that unanimous or at least widespread agreement among policy-makers about the urgency of a policy problem is key to swift and substantial policy action. Joint fact-finding might help different-minded decision-makers come to an agreement in the face of uncertainty and complexity. However, party-political dissent about the German water monitoring network shows that such collaborative strategies must be carefully designed, so that all parties approve the research procedures and, in consequence, the research outcomes. Joint fact finding should not be limited to an understanding of the policy problem, but encompass an evaluation of the effects of different policy measures as well. It seems also advisable to involve non-state stakeholders in this process, given the responsiveness of political parties to their respective constituencies.

Lesson #3: Target parties with quests for policy reform

At least for the German context, this thesis confirms that party-political control of the relevant decision-making bodies is key in the policy process. On that account, proponents of a swift and proper transposition of EU law (e.g. actors from civil society) can be advised to target party-political decision- makers and appeal to a party’s political identity (e.g. by framing a policy goal along the lines of the general political priorities of this party).

Lesson #4: Engage all relevant policy venues in the decision-making process

Policy venues can have responsibilities for distinct societal interests. Accordingly, EU environmental directives which seek to reduce the negative externalities of a specific sector stand a better chance of successful national implementation if not only the venues regulating this sector, but also those focusing on environmental protection are involved in the policy process.

Lesson #5: Facilitate effective collaboration between different policy venues

The narrow focus of different policy venues on their respective issue field is an obstacle to integrated thinking and effective cross-sectoral collaboration. In line with earlier work by Vogeler et al. (2019), my case study suggests that the potential for fundamental and consensual policy change could be heightened if policy-makers from different policy fields (e.g. agriculture and the environment) developed a greater understanding of each other’s objectives, concerns and mutual interdependencies and devised integrated policy strategies. Such an approach seems particularly important once the low- hanging fruits have been picked (i.e. environmental policies which can be realized without requiring much change of the polluting sector have been exhausted and proven insufficient) and the need for a more profound transformation of current production and consumption patterns reveals itself.

Lesson #6: Provide reform-oriented party-political leadership of all relevant policy venues

Parties in favour of an environmental EU directive can raise the chances of a successful transposition if they are in charge of both environmental policy venues and venues regulating the polluting sector. A post-exceptionalist agricultural minister seems as important as a post-exceptionalist environmental minister to make the farming sector more environmentally-friendly, for instance.

Lesson #7: Capitalize on European authority

The threat of a European infringement procedure can convince hesitant domestic decision-makers to endorse policy reform. On that account, national proponents of an EU directive can be advised to com- municate domestic resistance in the transposition process to the European Commission, or ask for a clarification of a country’s European obligations, early on. Supported by EU pressure, the domestic reformers may find it easier to lever their competitors into accepting the required policy changes.

7.5.2 Practical Implications for the Design and Enforcement of (Environmental) EU Directives

Lesson #1: Strike the right balance between flexibility and effectiveness

On the one hand, this thesis points to the dangers of flexible and vague EU directives. As shown by the German transposition of the Nitrates Directive, domestic political actors might capitalize on legal ambiguity to restrain policy reform, e.g. by claiming that their policy preferences are compatible with EU law. Besides, vague EU policy provisions nurture problems of collective action: The concerns about negative effects of environmental regulations on international competitiveness which my research uncovered would have been less pronounced if economic actors across the European Union faced precisely the same constraints. On the other hand, however, this thesis signals limits to the level of 74 regulatory detail which EU directives can require in a context of complex and uncertain natural processes and diffuse sources of pollution. Such trade-offs between flexibility and effectiveness must be taken into account in future EU policy projects, e.g. the upcoming reform of the Common Agricultural Policy, which seeks to increase national discretion whilst decreasing agriculture’s environmental foot- print (European Commission, 2020).

Lesson #2: Establish monitoring and revision requirements

The response which the Nitrates Directive, and various other recent EU directives (Van Holten and Van Rijswick, 2014; European Commission, 2019a, 2019e, 2019c) give to the trade-offs between flexibility and effectiveness i.e. the combination of

• clear policy goals set at the EU level, • concrete policy instruments selected by national policy makers and • monitoring and revision requirements surveilled and enforced by the European Commission and the European Court of Justice seems worthwhile. In particular, my research results indicate that European monitoring and revision requirements help ensure that policy-makers at the member state level continue paying attention to a policy issue, and do not lose sight of European policy objectives. Flexible EU requirements permit member states to address policy problems in nationally determined ways and will only be constrained in their regulatory freedoms if their actions prove insufficient. In case of low environmental ambitions at the national level, the European Commission should formulate clear expectations on how to transpose an EU directive. It can thereby limit the room for interpretation among national policy-makers who oppose strict environmental policies and accelerate the national reform process (potentially to the point that warnings suffice, and no official infringement procedure needs to be initiated).

Lesson #3: Devise uniform monitoring requirements

Another lesson from my research is that monitoring practices should be uniform across member states, so as to guarantee the comparability of the monitoring results. In my case study, some policy-makers criticized that aquatic nitrate concentrations were measured differently across the EU, for instance. On that account, they called into question Germany’s poor ranking in terms of the policy objectives of the Nitrates Directive and downplayed the need for policy reform. Uniform monitoring practices provide national governments with unambiguous information on their performance compared with other member states and make it easier to identify and emulate role models.

Lesson #4: Enforce a proper implementation early on

In the light of the German experience with the Nitrates Directive, it seems advisable for the European Commission to insist on a proper implementation of EU directives early on, to avoid that member states prolong the necessary policy change over an extended period of time. Such delay might exacer- bate the respective policy problem, creating a need for more drastic measures, and discourage other national governments from fulfilling their European duties. 75

Lesson #5: Let national policy-makers drive the transposition process

Simultaneously, however, my empirical findings point to the danger of legal imposition from above. Policy-makers in the German legislature made so many references to European pressure as a reason for amending the Fertilization Ordinance that this rationale in some cases overshadowed the actual environmental problem of aquatic nitrate contamination. In the longer run, such an emphasis on Eu- ropean obligations as a domestic justification strategy might undermine the national acceptance of nitrate policies (or other environmental policies) and turn the European Union into a scapegoat for unpopular government action. The European Commission can mitigate this risk by being responsive to the policy suggestions of reform-oriented political actors at the member state level. National decision- makers and their allies can thus promote policy reform (concerning aquatic nitrate contamination or other policy problems) more easily as a national project, rather than an imposition from above.

Lesson #6: Ensure consistency of EU policy-making

Besides, my empirical findings emphasize the need for consistent policy-making. The post-exceptionalist policy-makers in my study case emphasized a fundamental agricultural policy transition at the EU level as a precondition for achieving the policy goals of the Nitrates Directive. This assessment corresponds with the reasoning of many scholars, who argue that aquatic nitrate contamination cannot be tackled without an extensification of agricultural production (Grossman, 2000; Smith et al., 2007; Grinsven et al., 2015) and who advocate for an environmentally-oriented reform of the EU’s Common Agricultural Policy (Alons, 2017; Navarro and López-Bao, 2018; WBAE, 2018; Pe’er et al., 2019). Put simply, the Nitrates Directive alone cannot solve the nitrate problem, if other EU policy projects work in the opposite direction. Or, in more general terms, environmental directives will be ineffective if the economic activities which cause environmental pollution continue or are even encouraged by EU policy. In the end, it will also undermine the credibility of the European Union if it voices environmental demands without providing member states with a regulatory context that allows for a harmonization of environmental and economic objectives.

8. Conclusion

This thesis examined a fundamental trade-off in human ecosystem management, namely between intensive agricultural production and water protection. The European Nitrates Directive addresses this trade-off as it seeks to reduce aquatic nitrate pollution from agricultural sources. However, Germany has a very poor implementation score vis-à-vis this directive, even compared to other EU member states with intensive agricultural production systems. My research investigated why the German political decision-makers have repeatedly failed to produce timely and sufficient policy outputs to comply with the Nitrates Directives. For this purpose, I scrutinized Germany’s transposition of this directive with a focus on the policy process within the formal decision-making bodies of the national state. In line with the scientific literature which informed my research – cleavage theory, the Punctuated Equi- librium Framework and the EU implementation literature – my empirical findings show that the

76 problem understandings, policy preferences and political leverage of the parties operating within these decision-making bodies were key determinants of the transposition process.

While all parties acknowledged the need to address aquatic nitrate pollution from agricultural sources and comply with the Nitrates Directive, they disagreed on the severity of the environmental problem and the right approach to address it. The principal dividing line ran between

• the exceptionalist and (boundedly) market liberal CDU/CSU and FDP, which gave a more opti- mistic problem evaluation and favoured a soft policy approach and • the post-exceptionalist and state interventionist SPD, Bündnis 90/Die Grünen and DIE LINKE, which gave a more pessimistic problem evaluation and favoured a hard policy approach.

The fact that the decision-making competencies during the transposition of the Nitrates Directive were constantly shared by parties from both camps retarded the adoption or amendment of the NAPs substantially. Dissent between different bundesländer and between environmental and agricultural policy-makers was an additional source of delay. Besides, this thesis revealed that even post-exceptionalist parties did not pay constant attention to aquatic nitrate contamination. New scientific information about the environmental status quo and European pressure to revise the NAP stimulated policy reform in these cases. Both factors encouraged post-exceptionalist parties to set the nitrate topic onto the political agenda and strengthened the policy position of these parties.

In terms of policy output, the distribution of decision-making competencies across parties, government levels and policy fields meant that work on the German NAP required constant compromise-seeking across different-minded actors. Based on their party-political composition, different policy venues served alternately as a pressure for, or impediment to, policy reform. Post-exceptionalist party representatives in the Bundesrat pressed the federal government to tighten its policy proposals on some occasions and obstructed its reform ambitions at other times, for example. Overall, however, in the light of the recent verdict by the European Court of Justice, it can be said that the exceptionalist/(boundedly) market liberal parties were too strong – and the post-exceptionalist/interventionist parties too accommodating – to enable a sufficient transposition of the Nitrates Directive.

Ultimately, the reluctance among German policy-makers to adopt nitrate policies that live up to the provisions of the Nitrates Directive points to an inconvenient truth, namely that preserving both healthy aquatic ecosystems and the intensive and specialized current agricultural production system is extremely difficult. Even Denmark – a role model in water protection from agricultural pollutants, compared with Germany – still has nitrate concentrations above 50 mg/l at 15% of the national groundwater sampling stations (European Commission, 2018). According to Vogeler et al. (2019), the most recent amendment of the German fertilization legislation causes major agro-economic disruptions in regions with intensive livestock farming. From within the farming community, there is some recognition for changes in the name of environmental sustainability, but also warnings that the novel nitrate policies undermine agricultural production in Germany (Vogeler et al., 2019; Hugo, 2020).

Germany’s obligation to implement the Nitrates Directive has proven to be a powerful instrument to expose the deleterious environmental impact of the current agricultural system. Yet, the NAP alone will not rectify the systemic ills of the farming sector. Germany’s flawed implementation of the Nitrates Directive thus points to the need to rethink agricultural policy more generally and fundamentally. It seems about time to devise more comprehensive visions and strategies for the future of agriculture in Germany. Nitrate policies could then be embedded in a broader framework that addresses multiple different environmental externalities of the farming sector at once (including e.g. terrestrial biodiversity losses from over-fertilization and greenhouse gas emissions from intensive livestock farming in addition to water pollution) (UBA, 2014; SRU, 2015).

As Delwich’s (1970, p. 137) noted already half a century ago, “[the] ingenuity that has been used to feed a growing world population will have to be matched quickly by an effort to keep the nitrogen cycle in reasonable balance.” Germany’s response to aquatic nitrate contamination in the upcoming years can be considered a litmus test of democratic (party-) political decision-making in a context of pressing environmental problems.

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9.2. Verdicts ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00. OJ C 118/10. ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16. ECLI:EU:C:2018:481.

9.3 Directives, Laws and Ordinances Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (Nitrates Directive) (OJ L 375, p. 1), which was last amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (OJ L 3111 p.1).

Düngegesetz (DüngeG) in der Fassung der Bekanntmachung vom 9. Januar 2009 (BGBl. I S. 54, 136), das zuletzt durch Artikel 1 des Gesetzes vom 5. Mai 2017 (BGBl. I S. 1068) geändert worden ist

Düngemittelgesetz in der Fassung der Bekanntmachung vom 15. November 1977 (BGBl. I S. 2134).

Erste Verordnung zur Änderung der Düngeverordnung in der Fassung der Bekanntmachung vom 14. Februar 2003 (BGBl. I S. 235).

Verordnung über Anlagen zum Umgang mit wassergefährdenden Stoffen (AwSV) in der Fassung der Bekanntmachung vom 18. April 2017 (BGBl. I S. 905)

Verordnung über die Anwendung von Kultursubstraten und Pflanzenhilfsmitteln nach den Grundsätzen der guten fachlichen Praxis beim Düngen (Düngeverordnung - DüV) in der Fassung der Bekanntmachung vom 10. Januar 2006 (BGBl. I S. 20)

Verordnung über den Umgang mit Nährstoffen im Betrieb und betriebliche Stoffstrombilanzen (Stoffstrombilanzverordnung - StoffBilV) in der Fassung der Bekanntmachung vom 14. Dezember 2017 (BGBl. I S. 3942; 2018 I S. 360).

Verordnung über die Grundsätze der guten fachlichen Praxis beim Düngen (Düngeverordnung) in der Fassung der Bekanntmachung vom 26. Januar 1996 (BGBl. I S. 218).

Verordnung zur Neuordnung der guten fachlichen Praxis beim Düngen (Düngeverordnung) in der Fas- sung der Bekanntmachung vom 26. Mai 2017 (BGBl. I S. 1305).

9.4 Legal Drafts Fertilization Ordinance of 1996

Gesetzesentwurf der Bundesregierung. Verordnung über die Grundsätze der guten fachlichen Praxis beim Düngen (Düngeverordnung) vom 03. Juli 1995. BR-Drucks. 402/95.

Empfehlungen der Ausschüsse zu Punkt ... der 692. Sitzung des Bundesrates am 15. Dezember 1995. Verordnung über die Grundsätze der guten fachlichen Praxis beim Düngen (Düngeverordnung). BR- Drucks. 402/1/95.

Fertilization Ordinance of 2003

Gesetzesentwurf der Bundesregierung. Entwurf der Ersten Verordnung zur Änderung der Düngever- ordnung vom 18. Dezember 2002. BR-Drucks. 937/02.

Empfehlungen der Ausschüsse zu Punkt ... der 785. Sitzung des Bundesrates am 14. Februar 2003. Erste Verordnung zur Änderung der Düngeverordnung. BR-Drucks. 937/1/02.

Fertilization Ordinance of 2006

Gesetzesentwurf der Bundesregierung. Entwurf einer Verordnung über die gute fachliche Praxis beim Düngen vom 14. Juni 2004. BR-Drucks. 504/04.

Empfehlungen der Ausschüsse zu Punkt ... der 803. Sitzung des Bundesrates am 24. September 2004. Verordnung über die Grundsätze der guten fachlichen Praxis beim Düngen. BR-Drucks. 500/1/04.

Gesetzesentwurf der Bundesregierung. Entwurf der Ersten Verordnung zur Änderung der Düngever- ordnung vom 23. September 2005. BR-Drucks. 704/05.

Gesetzesentwurf der Bundesregierung. Entwurf einer Verordnung über die Anwendung von Dünge- mitteln, Bodenhilfsstoffen, Kultursubstraten und Pflanzenhilfsmitteln nach den Grundsätzen der guten fachlichen Praxis beim Düngen (Düngeverordnung - DüV) vom 23. September 2005. BR-Drucks. 703/5.

Empfehlungen der Ausschüsse zu Punkt ... der 817. Sitzung des Bundesrates am 25. November 2005. Erste Verordnung zur Änderung der Düngeverordnung. BR-Drucks. 704/1/05.

Fertilization Ordinance of 2017

Gesetzesentwurf der Bundesregierung. Entwurf einer Verordnung zur Neuordnung der guten fachlichen Praxis beim Düngen vom 15. Februar 2017. BR-Drucks. 148/17.

Empfehlungen der Ausschüsse zu Punkt ... der 956. Sitzung des Bundesrates am 31. März 2017. Ver- ordnung zur Neuordnung der guten fachlichen Praxis beim Düngen. BR-Drucks. 148/1/17.

9.5 Legislative Proceedings

Date Number of doc- Document type Party/Committee Bundesland ument/ legislative session

25.04.1991 12 / 23 Oral interpellation SPD + FDP 06.06.1991 12 / 28 Bundestag debate 12.06.1991 12 / 722 Motion SPD 12.06.1991 12 / 30 Bundestag debate 19.09.1991 12 / 41 Oral interpellation SPD 26.11.1991 12 / 1658 Minor interpellation SPD 06.11.1991 12 / 1477 Motion SPD

05.12.1991 12 / 64 Bundestag debate CDU/CSU 27.12.1991 12 / 1881 Government reply CDU/CSU + FDP 16.01.1992 12 / 70 Bundestag debate 10.02.1992 12 / 2099 Written interpellation SPD 13.02.1992 12 / 76 Bundestag debate 12.03.1992 12 / 2251 Motion CDU/CSU + FDP 06.05.1992 12 / 2553 Motion SPD 18.05.1992 12 / 227 Bundestag debate 03.06.1992 12 / 2728 Motion SPD 03.06.1992 12 / 2735 Motion CDU/CSU 11.06.1992 12 / 2802 Major interpellation SPD 07.10.1992 12 / 3385 Major interpellation SPD 26.11.1992 12 / 3876 Minor interpellation SPD 07.12.1992 12 / 3929 Report Health committee 09.12.1992 12 / 3951 Motion SPD 14.12.1992 12 / 4001 Motion SPD 22.12.1992 12 / 4036 Government reply CDU/CSU + FDP 18.01.1993 12 / 4143 Government reply CDU/CSU + FDP 04.03.1993 12 / 143 Bundestag debate 18.06.1993 12 / 5189 Written interpellation SPD 30.06.1993 12 / 5373 Major interpellation FDP 22.07.1993 12 / 5478 Minor interpellation DIE LINKE 08.09.1993 12 / 5659 Minor interpellation SPD 23.09.1993 12 / 176 Bundestag debate 29.09.1993 12 / 5816 Major interpellation SPD 06.10.1993 12 / 5860 Government reply CDU/CSU + FDP 13.10.1993 12 / 5881 Government reply CDU/CSU + FDP 11.11.1993 12 / 6128 Government reply CDU/CSU + FDP 19.01.1994 12 / 6609 Report Environmental committee 20.01.1994 12 / 205 Bundestag debate 09.02.1994 12 / 6815 Government reply CDU/CSU + FDP 03.03.1994 12 / 6977 Minor interpellation SPD 07.03.1994 12 / 7040 Minor interpellation SPD 28.03.1994 12 /7162 Government reply CDU/CSU + FDP 14.04.1994 12 / 7282 Government reply CDU/CSU + FDP 15.04.1994 12 / 220 Bundestag debate 29.04.1994 12 / 7462 Written interpellation CDU/CSU 18.05.1994 12 / 7574 Motion SPD 20.05.1994 12 / 7633 Written interpellation SPD 21.06.1994 12 / 8050 Motion SPD 05.07.1994 12 / 8236 Government reply CDU/CSU + FDP 05.09.1994 12 / 8472 Written interpellation SPD 06.09.1994 12 / 241 Bundestag debate 25.11.1994 13 / 49 Written interpellation SPD 16.12.1994 13 / 10 Bundestag debate 26.01.1995 13 / 15 Bundestag debate 94

08.03.1995 13 / 713 Motion SPD 08.03.1995 13 / 708 Motion Bündnis 90/Die Grünen 09.03.1995 13 / 24 Bundestag debate 10.03.1995 13 / 762 Written interpellation SPD 26.05.1995 301 / 95 Motion CSU BY 02.06.1995 13 / 42 Bundestag debate 21.06.1995 13 / 43 Bundestag debate 07.07.1995 13 / 1963 Written interpellation SPD 14.07.1995 13 / 2025 Minor interpellation SPD 23.08.1995 13 / 2183 Government reply CDU/CSU + FDP 05.09.1995 13 / 50 Bundestag debate 07.09.1995 13 / 52 Bundestag debate 22.09.1995 688 Bundesrat debate CDU/CSU + SPD + Bündnis BY, Nds. 05.10.1995 13 / 2524 Motion SPD90/Die Grünen 07.11.1995 13 / 66 Bundestag debate 21.11.1995 13 / 3064 Motion Bündnis 90/Die Grünen 07.12.1995 13 / 77 Bundestag debate 13.12.1995 402 / 1 / 95 Motion SPD + Bündnis 90/Die Grünen SA 13.12.1995 402 / 2 / 95 Motion SPD + Bündnis 90/Die Grünen SA 13.12.1995 402 / 3 / 95 Motion SPD + Bündnis 90/Die Grünen SA 13.12.1995 402 / 4 / 95 Motion SPD + Bündnis 90/Die Grünen SA 13.12.1995 402 / 5 / 95 Motion SPD + Bündnis 90/Die Grünen SA 14.12.1995 402 / 12 / 95 Motion SPD HH 14.12.1995 402 / 7 / 95 Motion SPD Nds. 14.12.1995 402 / 8 / 95 Motion SPD + Bündnis 90/Die Grünen NRW 14.12.1995 402 / 9 / 95 Motion SPD + Bündnis 90/Die Grünen NRW 14.12.1995 402 / 10 / 95 Motion SPD + Bündnis 90/Die Grünen NRW 14.12.1995 402 / 11 / 95 Motion SPD + Bündnis 90/Die Grünen NRW 15.12.1995 692 Bundesrat debate 18.01.1996 13 / 80 Bundestag debate 05.03.1996 13 / 3977 Motion SPD 25.04.1996 13 / 101 Bundestag debate 20.06.1996 13 / 113 Bundestag debate 02.07.1996 13 / 5199 Motion Bündnis 90/Die Grünen 12.12.1996 13 / 148 Bundestag debate 12.12.1996 13 / 6705 Major interpellation SPD 17.01.1997 13 / 152 Bundestag debate 21.01.1997 13 / 6803 Minor interpellation SPD 21.02.1997 13 / 158 Bundestag debate 21.02.1997 13 / 7014 Written interpellation SPD 21.02.1997 13 / 158 Written interpellation SPD 27.02.1997 13 / 7110 Government reply CDU/CSU + FDP 07.03.1997 13 / 7237 Major interpellation SPD 05.06.1997 13 / 178 Bundestag debate 27.06.1997 13 / 8097 Written interpellation SPD 11.11.1997 13 / 8959 Report Environmental committee 95

27.01.1998 13 / 9707 Report Environmental committee 28.01.1998 13 / 9714 Government reply CDU/CSU + FDP 11.03.1998 13 / 10112 Minor interpellation SPD 18.03.1998 13 / 10140 Motion CDU/CSU + FDP 26.03.1998 13 / 224 Bundestag debate 31.03.1998 13 / 10276 Government reply CDU/CSU + FDP 03.04.1998 13 / 228 Bundestag debate 30.04.1998 13 / 233 Bundestag debate 05.05.1998 13 / 10592 Government reply CDU/CSU + FDP 08.05.1998 13 / 236 Bundestag debate 27.05.1998 13 / 10819 Motion SPD 12.06.1998 13 / 10939 Written interpellation SPD 18.06.1998 13 / 241 Bundestag debate 23.06.1998 13 / 11141 Motion Bündnis 90/Die Grünen 13.04.2000 14 / 99 Bundestag debate 15.03.2001 14 / 158 Bundestag debate 14.03.2003 15 / 610 Written interpellation FDP 01.07.2003 467 / 03 Government reply SPD/Bündnis 90/Die Grünen 11.07.2003 790 Bundesrat debate 11.02.2004 15 / 90 Oral interpellation FDP 05.05.2004 15 / 3103 Motion FDP 27.05.2004 15 / 111 Bundestag debate 01.07.2004 15 / 118 Bundestag debate 16.07.2004 15 / 3609 Written interpellation CDU/CSU 24.09.2004 803 Bundesrat debate 01.12.2004 15 / 4432 Motion FDP 10.03.2005 15 / 163 Bundestag debate 12.04.2005 15 / 5249 Motion CDU/CSU 29.06.2005 15 / 5845 Report Environmental committee 23.11.2005 703 /2 / 05 Motion SPD + DIE LINKE MVP 25.11.2005 817 Bundesrat debate 15.12.2005 704 / 2 / 05 Motion CDU HH 15.12.2005 704 /3 / 05 Motion CDU HH 20.12.2005 704 / 4 / 05 Motion CDU/CSU BW + BY 23.12.2005 16 / 321 Written interpellation FDP 10.02.2006 16 / 613 Written interpellation FDP 21.11.2006 16 / 3525 Minor interpellation Bündnis 90/Die Grünen 07.12.2006 16 / 3759 Government reply CDU/CSU + SPD 27.04.2007 16 / 5189 Minor interpellation Bündnis 90/Die Grünen 22.05.2007 16 / 5395 Government reply CDU/CSU + SPD 21.09.2007 16 / 6510 Minor interpellation Bündnis 90/Die Grünen 09.10.2007 16 / 6594 Government reply CDU/CSU + SPD 18.02.2008 16 / 8159 Minor interpellation Bündnis 90/Die Grünen 05.03.2008 16 / 8368 Oral interpellation Bündnis 90/Die Grünen 05.03.2008 16 / 8368 Government reply CDU/CSU + SPD 14.03.2008 16 / 8624 Minor interpellation Bündnis 90/Die Grünen 96

09.04.2008 16 / 8746 Government reply CDU/CSU + SPD 24.04.2008 16 / 8972 Minor interpellation Bündnis 90/Die Grünen 13.05.2008 16 / 9181 Government reply CDU/CSU + SPD 12.11.2008 16 / 10874 Report Agricultural committee 12.11.2008 16 / 10888 Motion Bündnis 90/Die Grünen 13.11.2008 16/187 Bundestag debate 24.02.2010 17 / 23 Oral interpellation Bündnis 90/Die Grünen 25.02.2010 17 / 24 Bundestag debate 03.03.2010 17 / 26 Oral interpellation Bündnis 90/Die Grünen 20.05.2010 17 / 43 Bundestag debate 28.10.2010 17 / 68 Bundestag debate 25.03.2011 17 / 5289 Minor interpellation Bündnis 90/Die Grünen 12.04.2011 17 / 5457 Government reply CDU/CSU + FDP 06.07.2011 17 / 6520 Minor interpellation SPD 22.08.2011 17 / 6819 Government reply CDU/CSU + FDP 23.03.2012 17 / 170 Bundestag debate 08.06.2012 17 / 9887 Written interpellation SPD 27.06.2012 17 / 10115 Motion SPD 13.12.2012 17 / 214 Bundestag debate 16.01.2013 17 / 216 Bundestag debate 16.04.2013 283 / 13 Motion SPD + Bündnis 90/Die Grünen Nds. + SH 17.04.2013 17 / 13146 Report Agricultural committee 19.12.2013 18 / 227 Minor interpellation DIE LINKE 21.01.2014 18 / 322 Government reply CDU/CSU + SPD 30.01.2014 18 / 11 Bundestag debate 06.05.2014 18 / 1332 Motion DIE LINKE 07.05.2014 18 / 1338 Motion Bündnis 90/Die Grünen 08.05.2014 18 / 33 Bundestag debate 20.05.2014 18 / 1545 Minor interpellation DIE LINKE 10.06.2014 18 / 1720 Government reply CDU/CSU + SPD 24.06.2014 18 / 1872 Motion DIE LINKE 09.09.2014 18 / 2528 Minor interpellation Bündnis 90/Die Grünen 11.09.2014 18 / 51 Bundestag debate 07.10.2014 18 / 2731 Government reply CDU/CSU + SPD 22.10.2014 503 / 14 Motion SPD + Bündnis 90/Die Grünen NRW 07.11.2014 927 Bundesrat debate 12.11.2014 18 / 3239 Minor interpellation Bündnis 90/Die Grünen 27.11.2014 18 / 70 Bundestag debate 04.12.2014 18 / 3459 Government reply CDU/CSU + SPD 05.01.2015 18 / 3672 Written interpellation DIE LINKE 14.01.2015 18 / 3732 Motion Bündnis 90/Die Grünen 15.01.2015 18 / 79 Bundestag debate 28.01.2015 18 / 81 Oral interpellation Bündnis 90/Die Grünen 25.02.2015 18 / 87 Oral interpellation Bündnis 90/Die Grünen 04.03.2015 18 / 4236 Motion Bündnis 90/Die Grünen 04.03.2015 18 / 4191 Minor interpellation Bündnis 90/Die Grünen 97

06.03.2015 18 / 92 Bundestag debate 23.03.2015 18 / 4393 Government reply CDU/CSU + SPD 17.04.2015 18 / 4642 Written interpellation DIE LINKE 05.05.2015 18 / 4809 Motion DIE LINKE 06.05.2015 18 / 4814 Motion Bündnis 90/Die Grünen 08.05.2015 933 Bundesrat debate Bündnis 90/Die Grünen SH 20.05.2015 18 / 105 Oral interpellation Bündnis 90/Die Grünen 19.06.2015 18 / 113 Bundestag debate 10.08.2015 18 / 5749 Minor interpellation Bündnis 90/Die Grünen 25.08.2015 18 / 5874 Minor interpellation DIE LINKE 26.08.2015 18 / 5856 Government reply CDU/CSU + SPD 10.09.2015 18 / 121 Bundestag debate 11.09.2015 18 / 122 Bundestag debate 14.09.2015 18 / 5992 Government reply CDU/CSU + SPD 24.11.2015 18 / 138 Bundestag debate 02.12.2015 18 / 6972 Minor interpellation Bündnis 90/Die Grünen 29.12.2015 18 / 7179 Government reply CDU/CSU + SPD 13.01.2016 18 / 7293 Minor interpellation Bündnis 90/Die Grünen 29.01.2016 941 Bundesrat debate 17.02.2016 18 / 7562 Government reply CDU/CSU + SPD 19.02.2016 18 / 7626 Minor interpellation Bündnis 90/Die Grünen 22.02.2016 18 / 7626 Minor interpellation Bündnis 90/Die Grünen 25.02.2016 18 / 185 Bundestag debate 25.02.1016 18 / 7745 Minor interpellation Bündnis 90/Die Grünen 25.02.1016 18 / 7744 Minor interpellation Bündnis 90/Die Grünen 26.02.2016 18 / 7721 Written interpellation DIE LINKE 07.03.2016 18 / 7803 Government reply CDU/CSU + SPD 07.03.2016 18 / 7804 Government reply CDU/CSU + SPD 15.03.2016 18 / 7868 Government reply CDU/CSU + SPD 15.03.2016 18 / 7869 Government reply CDU/CSU + SPD 22.04.2016 18 / 8191 Minor interpellation Bündnis 90/Die Grünen 27.04.2016 18 / 8289 Minor interpellation Bündnis 90/Die Grünen 28.04.2016 18 / 8330 Minor interpellation Bündnis 90/Die Grünen 28.04.2016 18 / 8329 Minor interpellation Bündnis 90/Die Grünen 11.05.2016 18 / 8482 Minor interpellation Bündnis 90/Die Grünen 19.05.2016 18 / 8512 Government reply CDU/CSU + SPD 19.05.2016 18 / 8511 Government reply CDU/CSU + SPD 19.05.2016 18 / 8507 Government reply CDU/CSU + SPD 27.05.2016 18 / 8567 Written interpellation Bündnis 90/Die Grünen 02.06.2016 18 / 8653 Government reply CDU/CSU + SPD 08.06.2016 18 / 8792 Minor interpellation Bündnis 90/Die Grünen 17.06.2016 18 / 8815 Written interpellation Bündnis 90/Die Grünen 30.06.2016 18 / 8991 Government reply CDU/CSU + SPD 06.07.2016 18 / 9044 Motion Bündnis 90/Die Grünen 06.07.2016 18 / 9121 Minor interpellation Bündnis 90/Die Grünen 18.07.2016 18 / 9220 Minor interpellation Bündnis 90/Die Grünen 98

22.07.2016 18 / 9248 Minor interpellation Bündnis 90/Die Grünen 22.07.2016 18 / 9252 Government reply CDU/CSU + SPD 29.07.2016 18 / 9295 Written interpellation Bündnis 90/Die Grünen 04.08.2016 18 / 9330 Government reply CDU/CSU + SPD 09.09.2016 18 / 188 Bundestag debate 16.09.2016 18 / 9641 Written interpellation Bündnis 90/Die Grünen 21.09.2016 18 / 189 Oral interpellation Bündnis 90/Die Grünen 21.09.2016 18 / 9773 Minor interpellation Bündnis 90/Die Grünen 28.09.2016 18 / 192 Oral interpellation Bündnis 90/Die Grünen 28.09.2016 18 / 9884 Minor interpellation Bündnis 90/Die Grünen 13.10.2016 18 / 9967 Government reply CDU/CSU + SPD 14.10.2016 18 / 9970 Written interpellation Bündnis 90/Die Grünen 26.10.2016 18 / 10151 Government reply CDU/CSU + SPD 18.11.2016 18 / 10358 Written interpellation Bündnis 90/Die Grünen 22.11.2016 18 / 10399 Minor interpellation Bündnis 90/Die Grünen 09.12.2016 18 / 10599 Government reply CDU/CSU + SPD 16.12.2016 18 / 10695 Written interpellation Bündnis 90/Die Grünen 16.12.2016 18 / 210 Bundestag debate Bündnis 90/Die Grünen 16.01.2017 18 / 72 Public hearing 18.01.2017 18 / 10927 Minor interpellation Bündnis 90/Die Grünen 19.01.2017 18 / 212 Bundestag debate 15.02.2017 148 / 17 Report Environmental committee 15.02.2017 18 / 1171 Motion Bündnis 90/Die Grünen 16.02.2017 18 / 218 Bundestag debate 21.02.2017 18 / 11260 Government reply CDU/CSU + SPD 10.03.2017 954 Bundesrat debate 29.03.2017 18 / 227 Oral interpellation Bündnis 90/Die Grünen 30.03.2017 148 /3 / 17 Motion SPD + Bündnis 90/Die Grünen + Nds. + BW + 31.03.2017 956 Bundesrat debate CDU MVP 17.05.2017 18 / 12439 Minor interpellation Bündnis 90/Die Grünen 17.05.2017 18 / 12438 Minor interpellation Bündnis 90/Die Grünen 31.05.2017 18 / 236 Bundestag debate 08.06.2017 18 / 12693 Government reply CDU/CSU + SPD 27.06.2017 18 / 12915 Government reply CDU/CSU + SPD 27.06.2017 18 / 12921 Report Environmental committee 29.06.2017 18 / 243 Bundestag debate 18.07.2017 18 / 13145 Minor interpellation Bündnis 90/Die Grünen 04.08.2017 18 / 13257 Government reply CDU/CSU + SPD 01.09.2017 18 / 13467 Minor interpellation Bündnis 90/Die Grünen 06.10.2017 18 / 13667 Written interpellation Bündnis 90/Die Grünen 24.11.2017 962 Bundesrat debate 18.02.2018 18 / 155 Bundestag debate 21.02.2018 19 / 933 Minor interpellation Bündnis 90/Die Grünen 28.02.2018 19 / 1061 Minor interpellation Bündnis 90/Die Grünen 08.03.2018 19 / 1128 Minor interpellation Bündnis 90/Die Grünen 15.03.2018 19 / 1220 Government reply CDU/CSU + SPD 99

23.03.2018 19 / 24 Bundestag debate 27.03.2018 19 / 1415 Government reply CDU/CSU + SPD 09.04.2018 19 / 1571 Government reply CDU/CSU + SPD 15.05.2018 190/ 31 Bundestag debate 08.06.2018 19 / 37 Bundestag debate 27.06.2018 19 / 41 Oral interpellation Bündnis 90/Die Grünen 28.06.2018 19 / 42 Bundestag debate

Appendix A: Results of Bundestag Elections and Party-Political Compo- sition of the Bundesrat during the Implementation of the Nitrates Di- rective Results of Bundestag Elections Tab. 4: Results of Bundestag Elections (1990-2017) (Deutscher Bundestag, 2020a)

Bündnis 90/ Year CDU/CSU SPD FDP DIE LINKE AfD Die Grünen 1990 43,8 33,5 11,0 5 2,4 1994 41,5 36,4 6,9 7,3 4,4 1998 35,2 40,9 6,2 6,7 5,1 2002 38,5 38,5 7,4 8,6 4,0 2005 35,2 34,2 9,8 8,1 8,7 2009 33,8 23,0 14,6 10,7 11,9 2013 41,5 25,7 4,8 8,4 8,6 2017 32,9 20,5 10,7 8,9 9,2 12,6

Party-Political Composition of the Bundesrat Tables compiled by the author of this thesis based on information provided through personal communication with staff from the Bundesrat.

Tab. 5: Majority Ratios in the Bundesrat during the Policy Process Leading to the First Na- tional Action Programme (1996)

Time period State governments ruled by State governments ruled by parties of State governments ruled by federal opposition parties both the federal government and the parties of the federal gov- federal opposition ernment coalition

SPD + Bündnis SPD SPD + FDP + SPD + FDP SPD + CDU/CSU CDU/CSU + 90/ Bündnis CDU/CSU FDP Die Grünen 90/Die Grü- nen 01/91–04/91 6 16 4 3 4 16 19 04/91–05/91 10 16 4 3 4 16 15 05/91–06/91 10 16 4 7 4 16 11 100

06/91–12/91 10 19 4 4 4 16 11 12/91–05/92 10 16 7 4 4 16 11 05/92–10/93 10 16 7 4 10 10 11 10/93–04/94 10 13 7 4 13 10 11 04/94–07/94 4 19 7 4 13 10 11 07/94–10/94 8 19 7 4 13 10 7 10/94–06/95 8 23 3 4 20 10 0 06/95–12/95 14 17 0 4 23 10 0 01/96–04/96 18 13 0 4 23 10 0

Tab. 6: Majority Ratios in the Bundesrat during the Policy Process Leading to the First Two Amendments of the National Action Programme (2003 and 2006)

Time period State govern- State governments State governments ruled by par- State governments ments ruled ruled by parties of the ties of both the federal govern- ruled by federal opposi- by parties of federal government ment and the federal opposition tion parties both the fed- coalition eral government and the federal opposition SPD + DIE SPD + SPD SPD + FDP SPD + SPD + CDU/CSU CDU/CSU LINKE Bündnis + Bündnis FDP CDU/CSU + FDP 90/Die 90/Die Grünen Grünen 05/02–03/03 7 10 6 0 4 7 17 18 03/03–04/03 7 10 0 0 4 7 17 24 04/03-03/04 7 10 0 0 4 7 22 19 03/04–11/04 7 10 0 0 4 7 25 16 11/04–04/05 7 10 0 0 4 11 21 16 04/05–06/05 7 6 0 0 4 15 21 16 06/05–11/05 7 0 0 0 4 15 21 22 State governments ruled by parties of both the federal government and the federal opposition SPD + DIE SPD + SPD SPD + FDP SPD + SPD + CDU/CSU CDU/CSU LINKE Bündnis + Bündnis FDP CDU/CSU + FDP 90/Die 90/Die Grünen Grünen 11/05–05/06 7 0 0 0 4 15 21 22

Tab. 7: Majority Ratios in the Bundesrat during the Policy Process Leading to the Third Amendment of the National Action Programme (2017)

Time period State governments ruled by fed- State governments ruled by parties of both the State govern- eral opposition parties federal government and the federal opposition ments ruled by parties of the federal government coalition

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SPD + SPD + SPD + SPD CDU/ SPD + CDU/ CDU/ SPD + CDU/ CDU/ DIE Bünd- Bünd- CSU + FDP + CSU + CSU + CDU/ CSU CSU + LINKE nis nis SPD + Bünd- FDP + Bünd- CSU FDP 90/ 90/ Bünd- nis Bündnis nis Die Die nis 90/ 90/Die 90/Di Grü- Grü- 90/ Die Grünen e Grü- nen + nen Die Grü- nen DIE Grü- nen LINKE nen 01/12–05/12 4 0 19 3 0 0 0 0 15 3 25 05/12–06/12 4 0 19 3 0 0 0 0 18 0 25 06/12–02/13 4 0 23 3 0 0 0 0 18 0 21 02/13-10/13 4 0 29 3 0 0 0 0 18 0 15 10/13-12/13 4 0 29 3 0 0 0 0 18 6 9 State governments ruled by parties of both the federal government and the federal opposition SPD + SPD + SPD + SPD CDU/ SPD + CDU/ CDU/ SPD + CDU/ CDU/ DIE Bünd- Bünd- CSU + FDP + CSU + CSU + CDU/ CSU CSU + LINKE nis nis SPD + Bünd- FDP + Bünd- CSU FDP 90/ 90/ Bünd- nis Bündnis nis Die Die nis 90/ 90/ 90/ Grü- Grü- 90/ Die Die Grü- Die nen + nen Die Grü- nen Grü- DIE Grü- nen nen LINKE nen 12/13-01/14 4 0 29 3 0 0 0 0 18 6 9 01/14-11/14 4 0 29 3 0 0 0 5 18 6 4 11/14-12/14 4 0 29 3 0 0 0 5 22 6 0 12/14-04/15 4 4 29 3 0 0 0 5 18 6 0 04/15-05/16 4 4 32 0 0 0 0 5 18 6 0 05/16-12/16 4 4 22 0 4 4 0 11 14 6 0 12/16-06/17 4 8 22 0 4 4 0 11 10 6 0 06/17-11/17 4 8 12 0 4 4 4 11 10 6 6 11/17- 11/18 4 8 6 0 4 4 4 11 16 6 6

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Appendix B: Timeline of the Policy Process

April 1991: First parliamentary debate about the planned Fertilization Ordinance (Bundestag debate 25.04.1991).

December 1991: Adoption of the Nitrates Directive (Council Directive 91/676/EEC).

April 1992: First suggestions for a Fertilization Ordinance sent to the bundesländer (CDU/CSU + FDP government reply 28.03.1994)

March + October 1993: Consultation about the Fertilization Ordinance at the conference of state agricultural minsters. The federal agricultural minister is tasked to develop a draft for a Fertilization Ordi- nance that transposes the Nitrates Directive as soon as possible (CDU/CSU + FDP government reply 28.03.1994).

December 1993: Deadline for the transposition of the Nitrates Directive into national law (Council Directive 91/676/EEC).

May 1994: Complaint of ten German environmental and consumer protection organizations at the European Commission regarding Germany's delay in the transposition of the ND (SPD written interpellation 20.05.1994).

February 1995: Publication of a government draft for a Fertilization Ordinance (SPD minor interpellation 14.07.1995).

June 1995: The German government had still not sent the European Commission a code of good agricultural practice for all the bundesländer. Therefore, the European Commission addressed a letter to Germany with a number of questions concerning the transposition of the Nitrates Directive (ECJ Lux- emburg, judgment on 14th March 2002 in case C-161/00). The European Commission announced that it would initiate infringement procedures against all states which had not yet (fully) implemented the Nitrates Directive (CDU/CSU government reply 07.07.1995).

July 1995: Modified draft for the Fertilization Ordinance sent to the Bundesrat (SPD minor interpellation 14.07.1995).

December 1995: Publication of recommendations for the Fertilization Ordinance by the agricultural and environmental committees of the Bundesrat (BR-Drucks. 402/1/95).

January 1996: Entry into force of the Fertilization Ordinance (DüV i.d.F.v. 26. Januar 1996).

July 1997: The European Commission sent the Federal Republic of Germany another further formal letter with questions about the implementation of the Nitrates Directive (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

September 1998: Publication of a reasoned opinion in which the European Commission expressed its dissatisfaction with the reply of the German government concerning certain regulations of the 103

Fertilization Ordinance. Subsequent information by the German government convinced the Commis- sion not to prosecute the infringement concerning the capacity of storage vessels for livestock manure (i.e. this issue was settled out of court). However, a lawsuit was initiated concerning the deductible nitrogen losses during the application of livestock manure (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

October 1998: Assumption of office of the government coalition of the SPD and Bündnis 90/Die Grü- nen (Deutscher Bundestag, 2019).

March 2002: Conviction of Germany by the European Court of Justice for non-compliance with the Nitrates Directive (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

February 2003: First amendment of the Fertilization Ordinance with view to the regulations deemed non-compliant with the Nitrates Directive by the European Court of Justice (DüV i. d. F. v. 14. Februar 2003; ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

→ Commission asked to stop the infringement procedure (Bündnis 90/Die Grünen government reply 14.03.2003)

June 2004: Publication of a government draft for a new Fertilization Ordinance (BR-Drucks. 504/04).

September 2004: Rejection of the government draft for a new Fertilization Ordinance by the Bundesrat (Bundesrat debate 24.09.2005)

18th September 2005: New elections (Koischwitz, 2020).

23rd September 2005: New government draft for a Fertilization Ordinance sent to the Bundesrat (BR- Drucks. 703/5 + 704/05).

22nd November 2005: Assumption of office of the government coalition of the CDU/CSU and the SPD (Deutscher Bundestag, 2019).

14th November 2005: Publication of Bundesrat suggestions for a new Fertilization Ordinance (BR- Drucks. 704/1/05), prepared by Baden-Württemberg, Bavaria, Hesse, North Rhine-Westphalia and Sax- ony-Anhalt (all CDU/CSU-led) (CDU/CSU Bundesrat debate 25.11.2005).

January 2006: Entry into force of the new Fertilization Ordinance (DüV i. d. F. v. 10. Januar 2006), which is subsequently approved by the European Commission as Germany’s national action programme to implement the Nitrates Directive (CDU/CSU + SPD government reply 07.12.2006).

2011: Formation of an expert working group (BLAG) of the federal government and the state governments under leadership of the Thünen Institute for the evaluation of the Fertilization Ordinance, in accordance with the legal obligations of the Nitrates Directive (CDU/CSU + SPD government reply 17.02.2016).

July 2012: German nitrate report sent to the European Commission (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00). 104

November 2012: Publication of the BLAG report (DIE LINKE minor interpellation 13.12.2019).

August 2013: Publication of suggestions for an amendment of the Fertilization Ordinance by the governmental advisory councils on agricultural policy, fertilization and the environment (DIE LINKE minor interpellation 19.12.2013 + Bundestag debate 25.02.2016; UBA 2018b)

October 2013: Admonition letter sent to Germany by the European Commission, criticizing the German government for failing to adopt additional measures to reduce aquatic nitrate contamination, given the insufficient progress revealed by the 2012 nitrate report (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; UBA 2018b).

December 2013: Assumption of office of the government coalition of the CDU/CSU and the SPD (Deutscher Bundestag, 2019). Their coalition treaty emphasises the urgent need for policy reform to reduce nutrient inputs into water bodes (DIE LINKE minor interpellation 19.12.2013).

December 2013: Reply by the German government to the admonition letter, pointing to the latest revisions of the Fertilization Ordinance and the intended revision by November 2014 (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16).

May 2014: Bundesrat asked for national regulations concerning manure storage facilities (SPD (Nds.) Bundesrat debate 31.03.2017).

July 2014: Reasoned opinion by the European Commission, upholding the critique, dismissing the government’s suggestions for a new Fertilization Ordinance as insufficient and asking for an adoption of the required measures to comply with the Nitrates Directive by 11th September 2014 (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16).

10th September 2014: Reply by the German government, pointing to the intended amendment of the Fertilization Ordinance (ECJ Luxemburg, judgment on 14th March 2002 in case C-161/00).

June and October 2015: Presentation of drafts for an amendment of the Fertilization Ordinance to the European Commission (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16).

April 2016: Announcement by the European Commission that it will file a lawsuit against Germany for non-compliance with the Nitrates Directive (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16).

October 2016: Initiation of the infringement procedure against Germany (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16; UBA 2018b; Bündnis 90/Die Grünen written interpellation 17.06.2016).

February 2017: Government draft for a new Fertilization Ordinance sent to the Bundesrat (BR-Drucks. 148/17).

April 2017: Adoption of the new Ordinance concerning Facilities for the Treatment of Water-Polluting Substances (AwSV).

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May 2017: Amendment of the Fertilization Law (DüngeG) (prerequisite for the amendment of the Fer- tilization Law (CDU/CSU Bundesrat debate 07.11.2014) and Fertilization Ordinance (DüV i. d. F. v. 26. Mai 2017).

December 2017: Adoption of the Substance Flow Balance Ordinance (StoffBilV).

June 2018: Conviction of Germany by the European Court of Justice for non-compliance with the Ni- trates Directive (ECJ Luxemburg, judgment on 21st June 2018 in case C‑543/16).

Appendix C: Overview of the Utilized Codes

The following paragraphs provide a brief explanation to make the overview of the codes utilized in my data analysis more easily accessible for the reader. In general, I scrutinized the empirical data for both policy positions of the different political parties and information about the policy process. And as mentioned in chapter five, text segments were coded in two ways, namely according to the content and the partisan affiliation of the ‘author’ (i.e. the person uttering the statement). The tables below structure the textual data accordingly. They relate the gist of different codes to each other and to the party membership of the authors. While the first six tables contain codes about party-political evaluations (inter alia of the environmental situation, the importance of agriculture and the desirable nitrate policies), table 14 includes statements that characterize the policy process itself more directly. Individual text segments were often labelled with more than one code.

The categorization of the political parties in these tables is ideal-typical (e.g. although the Christian Democrats were classified as “environmental optimists”, members of this party occasionally uttered statements falling into the category of “environmental pessimism”. In the vast majority of statements, however, the Christian Democrats evaluated the environmental situation more optimistically than the parties which were categorized as “environmental pessimists”). Besides, while the political parties could mostly be divided into two consistent groups (CDU/CSU and FDP vs. SPD, Bündnis 90/Die Grünen and DIE LINKE), some deviations during the coalition governments of the SPD and CDU/CSU occurred. This fact is reflected in the sub-divisions of table 13. Content codes which match up with different groups of parties across time (the code “government commitment to water protection” fits many statements of the CDU/CSU and FDP in the 1990s, but also many statements by the CDU/CSU and SPD in the 2010s, for example) were displayed in several tables/table sections so as to visualize changes in party-political positioning. If codes fit well into one table column but are only associated with some political parties belonging to this column, the names of the relevant parties are provided in the description of the code. Codes which are prevalent among all parties are coloured in light grey.

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Tab. 8: Party-Political Understandings of the Severity of Aquatic Nitrate Contamination and its Sources

Environmental optimism Environmental pessimism Primarily CDU/CSU, FDP SPD, Bündnis 90/Die Grünen, DIE LINKE associated parties Gen- Sub-code Description Example (Sub-code or, if General Sub-code Description Example (Sub-code or, if not ap- eral not applicable, general code plicable, general code) code code) Evaluation Not so Low contam- The degree of “According to the statis- Serious High con- The degree of “The nitrate contamination of of the serious ination aquatic nitrate tics, 73% of the sampling situation tamina- aquatic nitrate con- ground- and drinking water bod- state of situa- contamination, stations have no elevated tion tamination, e.g. ies has taken on dramatic dimen- aquatic nition e.g. measured nitrate concentration” measured accord- sions” (SPD Bundestag debate trate con- according to the (CDU/CSU Bundestag de- ing to the number 06.06.1991) tamination number of wa- bate 08.05.2014) of water sampling ter sampling sta- stations with ele- tions with elevated nitrate con- vated nitrate centrations is high concentrations is not so high Scientific ex- Aquatic nitrate “Also, all sampling stations Higher Aquatic nitrate con- “Germany and Malta have the aggerations contamination is which were included in the contami- tamination in Ger- highest nitrate values in Europe less severe than data basis were agricultur- nation many is on average according to the latest data from some scientific ally influenced. This was by than in higher than in other the EU.” (Bündnis 90/Die Grünen findings suggest the way not the case in most EU EU member states Bundestag debate 08.05.2014) other EU countries. If we states (SPD + Bündnis included all measure- 90/Die Grünen) ments, as other EU

107

countries do, we would get Environ- Aquatic nitrate con- “The high nitrate contamination other results. They would mental centration has neg- [...] has led to large-scale dam- show that 82% of the damage ative environmental ages of entire ecosystems” measurement values are effects (Bündnis 90/Die Grünen Bundes- OK.” (CDU/CSU Bundestag tag debate 05.12.1991) debate 28.06.2018) “With view to the current study by the Environmen- tal Protection Agency concerning groundwater, it Health Nitrate contamina- “There are health-threatening lev- shall be said that the spec- risks tion of drinking wa- els of contamination, especially ulative assumptions in this ter threatens peo- with nitrate [...] for 1.2 million in- study are pure ‘scare-mon- ple’s health (SPD) habitants.” (SPD motion gering’ and that they ig- 06.11.1991) nore the new fertilization legislation.” (CDU/CSU government reply 27.06.2017) Local prob- Aquatic nitrate “we don’t have a problem Eco- Aquatic nitrate con- “the contamination of groundwa- lem concentration is across the country” nomic tamination has neg- ter with nitrate […] cause[s] enor- no nationwide (CDU/CSU oral interpella- damage ative economic con- mous costs of water treatment.” problem but tion 25.02.2015) sequences, e.g. ris- (SPD Bundestag debate concentrated in ing water prices 05.09.1995) a few regions (CDU/CSU)

Warnings Water and environ- “The debate about nitrate in by water mental interest drinking water began already ten and envi- groups warn of year ago […] While the agricul- ronmen- aquatic nitrate con- tural lobby tried to convey for tal inter- tamination many years that they were only ests doing good to us […] environmental groups, citizen’s initiatives and the federal association of the gas industry and water resource 108

management rang the alarm bells” (SPD speech Bundestag 04.03.1993) Improv- Decreasing The degree of “The share of sampling Worsen- Increas- The degree of “The nitrate contamination of the ing sit- nitrate con- aquatic nitrate points with nitrate con- ing situa- ing con- aquatic nitrate con- North and Baltic Sea has strongly uation tamination contamination, tamination is decreasing.” tion tamina- tamination, e.g. increased in the last years” e.g. measured (CDU/CSU oral interpellation measured accord- (Bündnis 90/Die Grünen motion according to the tion 03.03.2010) ing to the number 06.05.2015). number of wa- of water sampling ter sampling sta- stations with ele- tions with elevated nitrate con- vated nitrate centrations is in- concentrations creasing is decreasing, Increas- The negative envi- „According to a study by the Uni- has decreased ing environmental effects versity Aarhus […], the areas in or will most ronmen- of aquatic nitrate the Baltic Sea which are low in ox- likely decrease tal dam- contamination are ygen and hostile to life have in the future age increasing strongly expanded.” (Bündnis 90/Die Grünen government reply 19.05.2016) Still seri- Insuffi- The degree of “Despite achieved improvements ous situ- cient de- aquatic nitrate con- […], the nitrate contamination of ation crease in tamination is not domestic water bodies is often contami- decreasing suffi- too high.” (DIE LINKE minor inter- nation ciently/stagnating pellation 20.05.2014) (Bündnis 90/Die Grünen, DIE LINKE) Evaluation Moder- Relativiza- Agriculture is “It shall not be denied that Serious High ni- Agriculture releases “60% of the 1.5 million tonnes of of the ate tion of agri- only one source in the past decades, fertili- problem trogen large quantities of nitrogen which reach the North problem prob- cultural re- of nitrogen zation and intensive live- pressure dis- nitrogen com- Sea every year stem from agricul- pressure lem sponsibility emissions out of stock farming have con- charges pounds into the en- ture.” (Bündnis 90/Die Grünen generated pres- many tributed to the contamina- vironment, many of motion 02.07.1996) by the sure (CDU/CSU) tion of the North Sea as which reach water one factor out of many.” bodies (SPD, 109 agricul- (CDU/CSU Bundestag de- Bündnis 90/Die Grü- tural sec- bate 20.06.1996) nen) tor Problem Germany does “Countries with similar Worse German agriculture “Given the high consumption of pressure not not fertilize production structures and problem releases more nitro- commercial fertilizer per hectare worse than more/does not yields have a similar ferti- pressure gen than agriculture in Germany compared with other elsewhere have greater ni- lizer level, too, then.” than in other countries EU countries, does the federal trate water pol- (CDU/CSU + FDP govern- else- (SPD) government believe that the [...] lution problems ment reply 23.08.1995) where draft for the Fertilization Ordi- than other “all member states of the nance does justice to the strongly countries with European Union which emphasized claims of the agricul- similar agricul- have intensive livestock tural concept of the federal gov- tural systems farming [...] have similar ernment?” (SPD minor interpella- problems as Germany.” tion 23.08.1995) (CDU/CSU Bundestag de- High ni- The agricultural ni- “the statistics of the länder still bate 28.06.2018) trogen trogen surplus – on show nitrogen surpluses of 150- surplus a nationwide aver- 180 kg N/ha and year in the soil” age or in specific re- (Bündnis 90/Die Grünen motion gions – is very high 21.11.1995) Intensive Intensive agricul- “The main culprit of groundwater agriculture fuels aquatic contamination is the intensive ag- ture nitrate contamina- riculture in the Rhine Valley.” tion (e.g. via inten- (SPD Bundestag debate sive livestock farm- 10.03.2005) ing and overfertili- “The too high number of animals zation) on livestock farms and the growth in the number of these farms lead to an increase in the amount of manure, which contributes significantly to the contamination of the air and the groundwater with ammonia and nitrate.” (SPD Bundes- tag debate 15.01.2015) “on the other hand, this is about high current inputs because the 110

amount of fertilization exceeds the quantity which plants can absorb” (DIE LINKE Bundestag debate 25.02.2016) Organic Germany exports “especially in Lower Saxony, but fertilizer fertilizer from also in North Rhine-Westphalia, import abroad, which exac- the problem is being exacerbated erbates the prob- by imports of manure and diges- lem of aquatic ni- tate from the Netherlands” trate contamination (Bündnis 90/Die Grünen oral in- (Bündnis 90/Die terpellation 03.03.2010) Grünen) Biogas Biogas production “The nitrate contamination of produc- contributes to groundwater and surface water tion aquatic nitrate con- bodies is significantly too high in tamination many places, especially in regions (SPD; Bündnis with high livestock numbers and a 90/Die Grünen) high density in biogas plants” (Bündnis 90/Die Grünen (Nds.) Bundesrat debate 29.01.2016) Farmers as Farmers try to „The farmers try to use as Not all A significant pro- “I don’t want to argue with you responsible use as little fer- little fertilizer [...] as possi- farmers portion of farmers […] whether it is 50 or 40 percent stewards of tilizer as possible.” (CDU/CSU Bundestag work en- practices agricul- of farmers [who do not manage the land ble, manage debate 13.02.1992) viron- ture in ways which their nutrient flows properly]. their nutrients mentally release too much Let’s say it’s ‘a good 40 percent’, responsibly, on responsi- nitrogen into the we are not stingy in this regard. the basis of bly environment (SPD, But it is too many, definitely way good practices Bündnis 90/Die Grü- too many.” (Bündnis 90/Die Grü- and a good edu- nen) nen Bundestag debate cation 16.01.2017)

111

De- Decreasing Nitrogen dis- “The current [...] data eval- Still seri- Still high Nitrogen discharges “in the intensive livestock farming creas- nitrogen discharges from uations concerning nitro- ous prob- nitrogen from agriculture regions [...] we have massive ing charges agriculture into gen inputs for the drainage lem pres- dis- into the environ- problems with nitrogen inputs prob- the environ- area of the North Sea for sure charges ment, especially into the groundwater. And this lem ment, especially the year 2005 show a con- into water bodies, situation has not changed” (SPD pres- into water bod- tinuous reduction in in- are still high/stag- Bundestag debate 13.12.2012) sure ies, have de- puts. Compared with the nating/did not de- “The Fertilization Ordinance shall (or, in creased/ are de- year 1985, the inputs could crease sufficiently or should have lowered the am- case of creasing be reduced by 48%” (SPD, Bündnis monia emissions to 550 kilo stagna- (CDU/CSU + SPD oral inter- 90/Die Grünen) tonnes by 2010 [...] None of these tion: at pellation 05.03.2008) goals has been reached to a de- least gree which satisfies us.” (Bündnis not in- 90/Die Grünen Bundestag debate creas- 13.12.2012) ing) Decreasing The use of ferti- “The development of the Worsen- Increas- Fertilizer use is in- “the fertilizer use has unfortu- fertilizer use lizers has de- consumption of commer- ing prob- ing ferti- creasing (SPD) nately risen again.” (SPD debate creased/ is de- cial fertilizers indicates lem pres- lizer use Bundestag 07.12.1995) creasing that the general rules of sure need-oriented fertilization are increasingly being re- Still seri- Still high Fertilizer use is still “The resulting environmental con- spected.” (CDU/CSU writ- ous prob- fertilizer high i.e. it has de- tamination cannot be brushed ten interpellation lem pres- use creased insuffi- aside with the argument that the 05.09.1994) sure ciently or even in- sales of nitrogen fertilizers have creased again re- decreased by 34% in the last six cently (DIE LINKE) years. Compared with the use in the year 1980/1981, the nitrogen use decreased by only 17%, parallel to an increase in set asides by 10%. The fertilizer […] use thus occurs mainly on high-yielding fields.” (LINKE Bundestag debate 09.03.1995)

112

Decreasing The agricultural “Already in the past did ag- Insuffi- The agricultural ni- “In the last five years, the average nitrogen sur- nitrogen surplus riculture make a contribu- cient de- trogen surplus has reduction [of the nitrogen surplus has decreased tion to the reduction of crease in not decreased suffi- plus] was 2%. To achieve the goal significantly nutrient losses. Thus, the nitrogen ciently, is stagnat- (of the national sustainability nitrogen surpluses in the surplus ing or has even strategy), the reduction per year area balance could be low- started to increase would have to be 16 % in 2011, ered by 25 percent since again in some areas however” (SPD motion the beginning of the 90s.” (Bündnis 90/Die 27.06.2012) (CDU/CSU Bundestag de- Grünen, SPD) “This positive development of the bate 25.02.2016) nitrogen surplus has turned into stagnation approximately five years ago. There was even an opposite development in some areas.” (SPD agricultural committee report 17.04.2013) Decreasing The livestock „the livestock numbers Worsen- Expan- The livestock num- “These special ‘hotspots’ of ni- livestock numbers have have also decreased.“ ing prob- sion of bers have in- trate contamination correspond numbers decreased/are (CDU/CSU + FDP govern- lem pres- intensive creased/are in- often with [..] areas, in which decreasing ment reply 23.08.1995) sure livestock creasing in some ar- there has been an expansion of farming eas (Bündnis 90/Die intensive livestock farming in the Grünen) past years.” (Bündnis 90/Die Grü- nen agricultural committee report 17.04.2013) Improved Agricultural ed- “The improvement of edu- education + ucation and cation and consultation consultation consultation has led to a decrease in have led to a fertilizer use which could better nutrient be observed throughout management the last years.” (CDU/CSU + FDP government reply 28.01.1998) Decoupling Increasing agri- “the results of this meas- cultural produc- urement time span show tion has not led that the situation of the 113

to increasing ni- groundwater has not dete- trate contami- riorated between 2008 nation and 2011. This evaluation (CDU/CSU) is interesting [...] because there was simultaneously a massive increase in the production of livestock farms in this period.” (CDU/CSU Bundestag debate 28.06.2018)

Tab. 9: Party-Political Understandings of the Importance of Agriculture Primarily associated parties: CDU/CSU and FDP

General code Sub-code Description Example Importance of Food production Farmers produce sufficient, affordable, high-quality “We owe a lot to the German agriculture: Never in history did we have so agriculture food (with the aid of fertilization) many healthy, safe and diverse foods as today.” (CDU/CSU Bundesrat debate 31.03.2017) Economic value cre- Agriculture creates significant economic value “Are you aware that the value creation is extremely high in the region ation which you have mentioned [...]?” (FDP oral interpellation 11.02.2004) Job creation The agricultural sector is an important employer “Are you aware that for example the region Südoldenburg […] has the low- est unemployment rate and the highest ratio of apprentices and that this is due to the very smart livestock farming sector?” (FDP oral interpellation 11.02.2004) Maintenance of cul- Farmers maintain cultural landscapes “What I mean is that on the side, farmers and their families in Germany tural landscape shape our cultural landscape.” (FDP Bundestag debate 23.03.2018) Contribution to ru- Farmers are important contributors to rural commu- “[Farmers and their families] are engaged in rural communities and are ral community life nity life (FDP) therefore of indispensable societal value, from which we all benefit.” (FDP Bundestag debate 23.03.2018) Work for society Farmers work for the benefit of our society “[The farmers] deserve respect for what they do for our society 365 days (CDU/CSU) per year.” (CDU/CSU Bundestag debate 16.02.2017)

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Tab. 10: Party-Political Policy Preferences concerning Aquatic Nitrate Contamination and the Transposition of the Nitrates Directive

Economic viability Environmental effectiveness

Primarily associ- CDU/CSU, FDP SPD, Bündnis 90/Die Grünen, DIE LINKE ated parties Code Description Example Code Description Example General prioritiza- Balance Environmental ob- “We are also aware that sustain- Balance Environmental ob- “Germany should become a pioneer in tion environ- jectives of water able agriculture must consider environ- jectives of water the reduction of nitrogen inputs without mental protection from environmental issues besides mental and protection from giving up its high productivity.” (Bündnis and eco- aquatic nitrate con- economic development, the de- economic aquatic nitrate con- 90/Die Grünen (SH) Bundesrat debate nomic tamination must be mand for sufficient supply of objectives tamination must be 08.05.2015) objec- brought into har- food and social aspects.“ brought into har- tives mony with eco- (CDU/CSU Bundestag debate mony with economic goals of agri- 13.11.2008) nomic goals of agricultural production. cultural production. Im- Water must be pro- “The protection of our ground- Im- Water must be pro- “Of course, we must all be concerned portance tected, especially water has a high priority be- portance tected, especially with improving the water quality so that of water due to its im- cause drinking water is a valua- of water due to its im- we can leave a country to our children (protec- portance for hu- ble basic sustenance.” (FDP Bun- (protec- portance for hu- and grandchildren in which you can drink tion) mans (drinking wa- destag debate 13.12.2012) tion) mans (drinking wa- the tap water.” (SPD Bundestag debate ter, agricultural pro- ter, agricultural pro- 15.01.2015) duction etc.) duction etc.) Need to The degree of “Nonetheless, there is still a lot Need to The degree of “First of all, we all have to make sure that address aquatic nitrate con- to do. The still high nitrogen address aquatic nitrate con- less nitrogen and nitrate from agriculture the ni- tamination and the concentration in the North Sea the nitrate tamination and the leaches into the rivers and eventually trate is- nitrogen discharges illustrates the need for action.” issue nitrogen discharges into the seas.” (Bündnis 90/Die Grünen sue of the agricultural (FDP Bundestag debate of the agricultural Bundestag debate 25.02.2010) sector must be re- 26.01.1995) sector must be reduced via environ- duced via environmental and agricul- mental and agricultural policy action. tural policy action.

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Preserve The international “The German agriculture must General A general transfor- “What we need is a fundamental trans- competi- competitiveness of be protected from competition transformation of agricul- formation of agricultural policy, from tiveness German agriculture distortions.” (CDU/CSU environ- mation of tural policy is agro-industry to small-scale, ecological must be preserved. mental committee report agricultural needed to solve the farming.” (Bündnis 90/Die Grünen Bun- 29.06.2005) policy problem of aquatic destag debate 13.12.2012) “But we must remember that nitrate contamination and make agri- the farmers have to compete internationally” (CDU/CSU Bun- culture environ- destag debate 16.01.2017) mentally sustainable Preserve Regulations aimed “We must not formulate fertili- agricul- at reducing aquatic zation regulations which lead to tural pro- nitrate contamina- farm closures.” (CDU/CSU Bun- duction tion must not un- destag debate 08.05.2014) dermine agriculture We have a great responsibility production towards agriculture in Germany if we want to preserve it nationwide.” (CDU/CSU Bundestag debate 16.02.2017) “In Denmark, there was no quality wheat anymore for years, for example. We must not make such mistakes in Germany.” (CDU/CSU Bundestag debate 16.02.2017) Prevent Emphasis on the “The draft of the red-green fed- Prevent Emphasis on the “The Fertilization Ordinance […] leads to bureau- need to prevent bu- eral government contains a den- bureau- need to prevent bu- an incredible bureaucratization.” cratiza- reaucratization; cri- sity in regulations which can cratization reaucratization; cri- (Bündnis 90/Die Grünen Bundestag de- tion tique of opponents’ hardly by controlled or adminis- tique of opponents’ bate 07.09.1995) policy suggestions/ tratively implemented […] I think policy suggestions/ new regulations be- we should become serious new regulations because of the addi- about reducing bureaucracy.” cause of the additional bureaucracy (CDU (BW) Bundesrat debate tional bureaucracy which they imply 25.11.2005). which they imply

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Provide Policies must pro- “Our farms finally need com- Provide Policies must pro- It would be a disaster if Brussels planning vide farmers with plete planning security concern- planning vide farmers with squashed this compromise of the coali- security planning security; ing the fertilization legislation.” security planning security; tion, not only for the coalition, but unfor- demand for plan- (CDU/CSU Bundesrat debate demand for plan- tunately and especially for agriculture, ning security or em- 24.11.2017) ning security or em- because the latter finally needs planning phasis on the provi- phasis on the provi- security.” (DIE LINKE Bundestag debate sion of planning se- sion of planning se- 16.02.2017) curity by new regu- curity by new regulations lations Protect Small farms must Especially small and medium- Protect Small farms must “[The Left Party has] no interest in accel- small not be overbur- sized farms must not be over- small farms not be overbur- erating the structural change in agricul- farms dened with new burdened [...].” (CDU/CSU Bun- dened with new ture via the fertilization legislation.” (DIE regulations; struc- desrat debate 29.01.2016) regulations; struc- LINKE environmental committee report tural change i.e. the tural change i.e. the 27.06.2017) increase in average increase in average farm size due to the farm size due to the closure of small closure of small farms must be pre- farms must be prevented vented Desira- Degree Local dis- Regulations must “Over-regulation is not effective, Suggestions for concrete (tightened) regulations, see appendix E in the digital ble pol- of cretion leave farmers dis- not practical and not environ- version of this thesis. icy in- stand- cretion at the local mentally-friendly. A fertilization stru- ardiza- level law should never regulate de- ments tion tails.” (FDP Bundestag debate 13.11.2008) Level of Soft poli- Aquatic nitrate con- „This does not work with prohi- Soft poli- Aquatic nitrate con- „This is why I renew here and now […] rigour cies tamination should bitions but only with solutions.” cies tamination should the demand for the support of innovation be addressed via (CDU/CSU 19.06.2015) be addressed via in livestock farming and fertilizer applica- soft policies e.g. in- “Cooperative water protection soft policies e.g. in- tion.” (SPD Bundestag debate formation, techno- works where I am from and I formation, techno- 29.03.1993) logical innovation, share your opinion that that this logical innovation, water cooperation should be the principal way to water cooperation go.” (CDU/CSU Bundestag de- (SPD; DIE LINKE) bate 16.01.2017) 117

Approach to un- Wait and Uncertainty about “Before we ask the farmers for Precau- In the face of uncer- “But there are also voices – and we must certainty monitor the effectiveness of further reduction [in fertilizer tionary tainty about the ef- take them seriously – who say: This will current regulations, use], we should examine the ef- principle fectiveness of cur- not suffice.” (SPD Bundestag debate the degree of fects of the steps which have al- rent regulations and 28.06.2018) aquatic nitrate con- ready been taken.” (CDU/CSU the dynamics of “There are of course also other water ab- tamination or agri- Bundestag debate 13.12.2012) aquatic nitrate con- straction areas […] They are character- culture’s contribu- “Statements about the effective- tamination, addi- ized by the fact that they will get signifi- tion to the problem ness of the Fertilization Ordi- tional precautionary cant problems in the future, besides makes it necessary nance, as presented in the measures must be those areas into which nitrogen receive to wait and monitor study, are not yet possible at taken, given the en- nitrogen and which are not controlled at the situation before this point in time, however.” vironmental high all. Nobody knows what is going on down taking additional ac- (CDU/CSU oral interpellation risks there […] There is urgent need for actions which con- 27.06.2018) tion.” (SPD Bundestag debate strain agricultural 16.01.2013) production

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Tab. 11: Party-Political Positions during the Policy Process Leading to the Adoption of the NAP in 1996 (April 1991-January 1996)

Effective government commitment to water protection Government negligence of water protection

Primarily CDU/CSU, FDP (federal government parties) SPD, Bündnis 90/Die Grünen, DIE LINKE (federal opposition) associated parties Code Description Example Code Descrip- Example tion Need to A Fertiliza- “Especially a damage of groundwater and surface water Need to A Fertiliza- “A Fertilizer Use Ordinance which ensures ground- adopt FO tion Ordi- bodies must be prevented. In this context, we ask the fed- adopt FO tion Ordi- water protection [...] must immediately be imple- (1996) nance must eral government to adopt this effective Fertilizer Use Ordi- (1996) nance mented by the federal government. (SPD motion be adopted, nance20.” (FDP Bundestag debate 16.01.1992) must be 06.11.1991) e.g. due to adopted, EU require- e.g. due to ments and EU require- aquatic con- ments and tamination aquatic contamination Environ- The planned “I expect that this ordinance will contribute substantially to Environ- The “The Fertilization Ordinance which you have pre- mental ef- FO will con- reducing the groundwater contamination with nitrate from mental in- planned FO sented is exactly what we did not want. It is an af- fectiveness tribute to agriculture.” (CDU/CSU Bundestag debate 05.12.1991) sufficiency will fail to front to environmental policy.” (Bündnis 90/Die of planned the reduc- of planned reduce Grünen Bundestag debate 07.09.1995) FO (1996) tion of FO (1996) aquatic ni- aquatic nitrate con- trate contamination tamination (sufficiently)

20 The name was later changed from Fertilizer Use Ordinance to Fertilization Ordinance. To avoid confuse, this thesis uses only the name “Fertilization Ordinance”. 119

Balanced The FO bal- “We are convinced – and we have broad support from the legislation ances envi- professional group – that we have presented a Fertilization (1996) ronmental Ordinance which supports environmental and water pro- and eco- tection and which is acceptable for agriculture.” (CDU/CSU nomic objec- Bundesrat debate 15.12.1995)

tives Govern- The govern- “[SPD] demands to fulfil reporting obligations, make exami- Govern- The gov- “As a consequence of the flawed agricultural pol- ment comment is com- nations, inform and initiate support programmes shall con- ment ne- ernment icy of the federal government, the surface water mitment to mitted to vey the impression that the federal government is not do- glect of has been bodies and the groundwater are contaminated water pro- water pro- ing all of this. The contrary is true.” (FDP Bundestag debate water pro- neglecting with nitrate”. (SPD motion 18.05.1994) tection tection, as 20.01.1994) tection water pro- “The federal government has failed to address the proven by tection by problem of nitrate inputs into groundwater and (successful) pursuing surface water bodes with effective measure.” previous and environ- (Bündnis 90/Die Grünen motion 21.11.1995) currently mentally

planned detri- measures mental agricultural Germany is Germany has “As concerns this development [i.e. the formulation of far- policies an environ- done/is do- reaching and detailed fertilization regulation], we are abso- and by fail- mental pio- ing more lutely at the top in the European community” (FDP oral ining to take neer than most terpellation 25.04.1991) measures other states to reduce to tackle aquatic ni- aquatic nitrate con- trate contamination tamination

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(Red- Bundeslän- “it is especially the red and red-green governments who green) der (gov- think that they have to distinguish themselves one-sidedly bundeslän- erned by the to the detriment of agriculture.” (CDU/CSU in: SPD minor der neglect SPD and interpellation 03.03.1994) agriculture Bündnis 90/Die Grü- nen) promote water protection to the detriment of agriculture Proper The planned In my opinion, the strict requirements of the (Nitrates Di- planned Fertilization rective) to remediate water bodies contaminated with ni- transposi- Ordinance trates will in essential points be considered by the [Fertili- tion of Ni- meets the zation Ordinance]” (CDU/CSU Bundestag debate trates Di- require- 05.12.1991) rective ments of the (1996) Nitrates Di- rective

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Tab. 12: Party-Political Positions during the Policy Process Leading to the First Amendment of the NAP in 2006 (February 1996-January 2006)

Environmental overperformance of the government/ Government negligence of water protection/ Need to preserve agriculture (economic viability) Need for water protection (environmental effectiveness) Primarily CDU/CSU, FDP (alternately federal governing and opposition parties) SPD, Bündnis 90/Die Grünen (alternately federal governing and opposition par- associated ties), DIE LINKE (federal opposition party) parties Code Description Example Code Description Example Environ- The FO will “(The Fertilization Ordinance) will have excellent effects. Environ- The FO will “The recently adopted Fertilization Ordinance mental ef- contribute/ In this way, the state of our surface water bodies will fur- mental in- fail/fails to re- and its principles for good fertilization prac- fectiveness contributes ther improve.” (CDU/CSU Bundestag debate 20.06.1996) sufficiency duce aquatic ni- tices will hardly contribute to a reduction of of FO to the reduc- of FO trate contamina- the nitrogen contamination because the provi- (1996) tion of (1996) tion (suffi- sions are much too lax.” (Bündnis 90/Die Grü- aquatic ni- ciently) nen Bundestag debate 20.06.1996) trate contamination Proper The FO “For technical reasons, the Fertilization Ordinance has Deficient The FO fails to “How long did we have to wait for the Fertili- transposi- meets the been designed in such way that the farmers and the re- transposi- meet the re- zation Ordinance, for instance, and the EC-Ni- tion of Ni- require- sponsible agencies in the bundesländer have enough lee- tion of Ni- quirements of trates Directive is still not fully implemented.” trates Di- ments of the way for the consideration of the respective local condi- trates Di- the Nitrates Di- (SPD Bundestag debate 18.01.1996) rective Nitrates Di- tions […] the implementation of the EC Nitrates Directive rective rective (1996) rective is not threatened in any way by this.” (CDU/CSU + FDP (1996) government reply 31.03.1998)

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Germany is Germany has “But we must not blame the federal government because an environ- done/is do- the federal government has contributed more than any mental pio- ing more other European state, probably more than any other neer than most state in the world, to the reduction of nutrient inputs into other states surface water bodies.” (CDU/CSU Bundestag debate to tackle 20.06.1996) aquatic nitrate contamination Need to The FO of “The German Bundestag asks the federal government to Need to The FO of 1996 “The Bundestag therefore asks the federal amend FO 1996 must [...] immediately present an amendment ordinance to pre- amend FO must be government to implement especially the fol- (1996) be amended vent another infringement procedure for incomplete (1996) amended be- lowing recommendations by the Advisory because it transposition of the EU Nitrates Directive which considers cause it has Council on the Environment […] 6. to revise the has proven the environmental needs, especially concerning water proven to be en- Fertilization Ordinance.” (SPD motion to be envi- protection.” (FDP motion 01.12.2004) vironmentally 24.02.1997) ronmentally insufficient insufficient (Bündnis 90/Die Grünen; DIE LINKE) Need to re- German pol- “The infringement procedure threatened by the EU with Need to re- German policy- Das von der EU angedrohte Vertragsverlet- spond to icy-makers view to the implementation of the Nitrates Directive spond to makers must re- zungsverfahren im Hinblick auf die Umsetzung EU pres- must re- must be prevented.” (CDU/CSU (BW) Bundesrat debate EU pres- spond to the Eu- der Nitratrichtlinie muss abgewendet werden. sure spond to the 24.09.2004) sure ropean pressure European to properly im- pressure to plement the Ni- properly im- trates Directive plement the in order to pre- Nitrates Di- vent a judicial rective in or- conviction der to prevent a judicial conviction

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Govern- The environ- “The conditions for livestock farming in Germany have Govern- The federal gov- “The protection of the groundwater, surface ment ne- mental poli- deteriorated dramatically in the past years […] The deci- ment ne- ernment has water bodies and the drinking water reservoirs glect of ag- cies of the sive reason for this development is the ideological agri- glect of been neglecting from nitrate and other agro-chemicals is not ricultural federal gov- cultural and consumer policy of the federal government, water pro- water protec- being taken seriously by this federal govern- production ernment of which attributes a secondary importance to the rural ar- tection tion, i.e. by pur- ment, the Fertilizer Ordinance has not brought the SPD and eas.” (FDP motion 05.05.2004) suing environ- much change in this regard.” (SPD Bundestag Bündnis mentally detri- debate 12.12.1996) 90/Die Grü- mental agricul- nen under- tural policies mines agri- and by failing to cultural pro- take measures duction to reduce aquatic nitrate contamination Prevent The planned „We don’t want regulations which go beyond the EU pro- overcom- FO exceeds visions and which destroy production capacity and jobs in pliance the require- Germany” (CDU (BW) Bundesrat debate 24.09.2004) with Ni- ments of the trates Di- Nitrates Di- rective rective, (FO 2006) which must be prevented

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Tab. 13: Party-Political Positions during the Policy Process Leading to the Third Amendment of the NAP in 2017 and the Subsequent Months until the ECJ Verdict in June 2018 (February 2006-June 2018)

Effective government commitment to water protection Government negligence of water protection January 2006-October 2009 Primarily as- CDU/CSU and SPD (governing parties) Bündnis 90/Die Grünen, DIE LINKE (federal opposition) sociated parties Code Description Example Code Description Example Environmen- The FO con- “With these regulatory measures, the polluter pays tal effective- tributes to the principle has been strengthened and simultane- ness of FO reduction of ously, justice has been done to the […] problem of (2006) aquatic nitrate nutrient contamination of water bodies” (CDU/CSU contamination + SPD government reply 22.05.2007). November 2009-November 2013 Primarily as- CDU/CSU and FDP (governing parties) SPD, Bündnis 90/Die Grünen, DIE LINKE (federal opposition) sociated parties Code Description Example Code Description Example Environmen- The FO will “The Fertilization Ordinance of January 2006 speci- Environ- The FO will fail/fails “The Fertilization Ordinance shall reduce the tal effective- contribute/ fies the rules of good fertilization practices and does mental in- to reduce aquatic [nitrogen] surpluses to 60 kg per hectare but ness of FO contributes to special justice to water protection […] Compliance sufficiency nitrate contamina- it misses its goal because it contains no suffi- (2006) the reduction with these rules ensures comprehensive water and of FO tion (sufficiently) cient sanctioning possibilities.” (Bündnis of aquatic ni- environmental protection, also in areas with inten- (2006) 90/Die Grünen Bundestag debate trate contami- sive livestock farming.” (CDU/CSU oral interpellation 25.02.2010). nation 03.03.2010) (CDU/CSU) Need to The FO of 2006 “The federal government should have be- amend FO must be amended come active and presented a new (2006) because it has 125

proven to be envi- Fertilization Ordinance long ago.” (SPD agri- ronmentally insuffi- cultural committee report 17.04.2013) cient (SPD + Bündnis 90/Die Grünen) Opponents Opponents “Unfortunately, the motions of the SPD and Bündnis Govern- The federal govern- “The delay by the federal government show neglect agri- (SPD +Bündnis 90/Die Grünen reveal a one-sided look on agricul- ment ne- ment has been ne- that it is not ready to do what is necessary culture 90/Die Grü- ture […] Thus, both parliamentary groups demand a glect of glecting water pro- and already possible today. To the contrary, nen) promote tightening of the Fertilization Ordinance, for exam- water protection by pursuing it promotes the expansion of livestock farm- water protec- ple.” (FDP Bundestag debate 28.10.2010). tection environmentally ing and accepts an increase in the emissions tion to the detrimental agricul- from livestock farming.” (Bündnis 90/Die detriment of tural policies and by Grünen Bundestag debate 28.10.2010) agriculture failing to take measures to reduce aquatic nitrate contamination (SPD + Bündnis 90/Die Grü- nen) Government The federal “It is not even necessary to ask the federal govern- commitment government is ment to amend the Fertilization Ordinance through to water pro- committed to the motion of the SPD; the amendment of the ordi- tection water protec- nance is already underway.” (CDU/CSU Bundestag tion, as proven debate 13.12.2012) by (successful) previous and currently planned measures December 2013- June 201821 Primarily as- CDU/CSU + SPD (governing parties) Bündnis 90/Die Grünen + DIE LINKE (federal opposition parties) sociated parties

21 The FDP was not represented in the Bundestag during most of this time (2013-2017) and hardly commented on the nitrate topic in early 2018. 126

Code Description Example Code Description Example Environmen- The FO of “This means that the old ordinance has at least Environ- The FO of 2006 “One can only shake one’s head concerning tal effective- 2006 contrib- made sure that the situation has not deteriorated.” mental in- fails/will fail to re- the remark by the Farmer’s Union ‘The cur- ness of FO utes to the re- (CDU/CSU Bundestag debate 28.06.2018) sufficiency duce aquatic nitrate rent German Fertilization Ordinance has (2006) duction of of FO contamination (suf- proven its value.’” (Bündnis 90/Die Grünen aquatic nitrate (2006) ficiently) Bundestag debate 08.05.2014) contamination (Bündnis 90/Die (CDU/CSU) Grünen) Need to The FO of “We want to strengthen the protection of water Need to The FO of 2006 “An ambitious Fertilization Ordinance must amend FO 2006 must be bodies from nutrient inputs – speaking of ‘Fertiliza- amend FO must be amended be presented by the federal government as (2006) amended be- tion Ordinance’” (CDU/CSU Bundestag debate (2006) because it has soon as possible for the implementation of cause it has 11.09.2014) proven to be envi- the Nitrates Directive and the significant im- proven to be “In the context of the evaluation of the require- ronmentally insuffi- provement of the water quality.” (DIE LINKE environmen- ments of the Fertilization Ordinance which is cur- cient motion 05.05.2015) tally insuffi- rently in force, it has been found that the measures cient do not suffice to fulfil the goals of the Nitrates Di- rective comprehensively. Therefore, there is urgent need for action. (SPD written interpellation 27.05.2016) Need to The fertiliza- “To prevent these inputs into the groundwater, we Need to The fertilization leg- „it underlines the need for a comprehensive amend ferti- tion legislation have to adjust the requirements for the fertiliza- amend fer- islation (incl. also revision of the fertilization legislation and lization legis- (incl. also the tion.” (CDU/CSU Bundestag debate 25.02.2016) tilization the Fertilization the Fertilization Ordinance” (Bündnis 90/Die lation Fertilization “This is why we and I as environmental policy-maker legislation Law, besides the Grünen (NRW) Bundesrat debate Law, besides want to quickly adopt the Fertilizer Law and the Fer- FO, for instance) 07.11.2014) the FO, for in- tilizer Ordinance for the implementation of the Ni- must be amended stance) must trates Directive.” (SPD Bundestag debate because it has be amended 18.02.2016) proven to be envi- because it has ronmentally insuffi- proven to be cient environmentally insufficient

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Need to re- German pol- “At the end, I would like to emphasize that we all Need to re- German policy-mak- “The European Commission […] has asked spond to EU icy-makers have to finalize things now. I do not want that Ger- spond to ers must respond to […] the federal government to improve the pressure must respond many is being officially sued by the European Com- EU pres- the European pres- implementation of the Nitrates Directive. In to the Euro- mission.” (CDU/CSU Bundestag debate 25.02.2016) sure sure to properly im- this context, the federal government must fi- pean pressure “We have an infringement procedure by the Euro- plement the Ni- nally act.” (Bündnis 90/Die Grünen agricul- to properly im- pean Commission concerning the Nitrates Directive trates Directive in tural committee report 17.04.2013) plement the […] all of this must be tackled quickly.” (SPD Bundes- order to prevent a Nitrates Di- tag debate 31.05.2017) judicial conviction rective in or-

der to prevent a judicial conviction Government The federal “it is important that we revise the Fertilization Ordi- Govern- The federal govern- “For whom, dear colleagues from the commitment government is nance […] the federal ministry of agriculture is al- ment ne- ment has been ne- CDU/CSU, are you actually doing politics? to water pro- committed to ready working on such a substantive improvement glect of glecting water pro- Are you doing politics for the people, who tection water protec- of the ordinance – without your motions. The com- water protection by pursuing want safe drinking water, who want, that tion, as proven petency of the federal agricultural ministry […] is big tection environmentally their common resource remains clean? No, by (successful) enough to tackle this challenge and produce a good detrimental agricul- you […] are doing politics for a few livestock previous and solution.” (CDU/CSU Bundestag debate 08.05.2014) tural policies and by farmers, who contaminate our common re- currently failing to take source water enormously with too much ma- planned measures to reduce nure.” (Bündnis 90/Die Grünen Bundestag measures aquatic nitrate con- debate 29.06.2017) tamination “But the federal government pursues a policy from which only a few profit […] It delays and waters down the reform of the Fertiliza- tion Ordinance. Instead, it promotes intensive livestock farms […]” (Bündnis 90/Die Grünen motion 04.03.2015) Opponents Opponents “When reading your motions, dear colleagues of the neglect agri- (Bündnis Lefts and Greens, one feels obliged to point out that culture 90/Die Grünen it must still be possible to do agriculture in Ger- + DIE LINKE at many. I slowly get the impression that you want to the federal abolish the German agriculture.” (CDU/CSU Bundes- level and state tag debate 08.05.2014) level, SPD at 128

the state level) promote water protection to the detriment of agriculture (CDU/CSU) Environmen- The “With the planned amendment of the Fertilization Environ- The planned/re- “I am at any rate pleased that we now carry tal effective- planned/re- Ordinance, measures will be prescribed from which mental ef- cently adopted fer- out the necessary paradigm change which ness of ferti- cently adopted a further reduction in emissions is expected.” fectiveness tilization package as we should long have carried out.” (DIE LINKE lization legis- fertilization (CDU/CSU + SPD government reply 21.02.2017) of fertiliza- a whole/in its indi- Bundestag debate 29.06.2017) lation (2017) package as a “The new Fertilizer Ordinance which we have ad- tion legisla- vidual parts will “We would not have thought anymore that whole/in its in- dresses the deficits of the old ordinance already in- tion (2017) contribute/ is con- such a far-reaching package agreement dividual parts tensively.” (CDU/CSU Bundestag debate 28.06.2018) tributing signifi- would be reached in this legislature.” will contrib- cantly to the reduc- “[The agreement on the Fertilization Law and the (Bündnis 90/Die Grünen Bundestag debate ute/ is contrib- tion of aquatic ni- Fertilization Ordinance] is an essential step towards 16.01.2017) uting signifi- trate contamination the reduction of nitrogen inputs.” (SPD Bundestag “The legal draft sets important and right cantly to the debate 31.05.2017) (less frequent state- courses for the fertilization legislation in Ger- reduction of ments in this regard many” (DIE LINKE Bundestag debate aquatic nitrate by Bündnis 90/Die 16.01.2017) contamination Grünen + DIE LINKE, compared with CDU/CSU +SPD) Environmen- The “There might be some need for further improve- Environ- The planned/re- “According to evaluations by scientific ex- tally insuffi- planned/re- ment […] On that account, I am expecting that the mentally cently adopted fer- perts, especially the Fertilization and the ciency of fer- cently adopted fertilization legislation will occupy the colleagues of insuffi- tilization package as Substance Flow Balance Ordinance possess tilization leg- fertilization the German Bundestag during the next legislative ciency of a whole/in its indi- in parts extreme deficits.” (Bündnis 90/Die islation package as a period [...], too.” (SPD Bundestag debate fertilization vidual fails/will fail Grünen government reply 15.03.2018) (2017) whole/in its in- 16.02.2017) legislation to reduce aquatic “a half-baked Fertilization Ordinance” (Bünd- dividual parts (2017) nitrate contamina- nis 90/Die Grünen Bundestag debate fails/will fail to tion (sufficiently) 29.06.2017) reduce aquatic “The polluter-pays principle which has been nitrate con- established with this amendment cannot be tamination correctly put into practice and the manure (sufficiently) 129

(SPD only, less cannot be properly accounted for because of frequent than the massaged numbers of the Substance Bündnis Flow Balance Ordinance.” (Bündnis 90/Die 90/Die Grünen Grünen Bundestag debate 29.06.2017) + DIE LINKE) Balanced The fertiliza- “The achieved compromise ensures need-oriented Balanced The fertilization “The federal government and the bundeslän- legislation tion package plant nutrition and water protection.” (CDU/CSU re- legislation package as a whole der, agriculture and the environment, have (2017) as a whole port 15.02.2017) (2017) and/or its individual agreed on a compromise […] which allows and/or its indi- parts harmonizes farmers to continue working in an economi- vidual parts environmental and cally sustainable way.” (Bündnis 90/Die Grü-

harmonizes economic objectives nen (Nds.) Bundesrat debate 31.03.2017) environmental (Bündnis 90/Die and economic Grünen (Nds.)) objectives/ different interests Proper trans- The planned/ “With the so-called fertilization package, a sufficient Deficient The planned/re- “We as Greens believe that Germany is on its position of recently instrument for the national action plan for the im- transposi- cently adopted fer- way into a new infringement procedure” Nitrates Di- adopted fertili- plementation of the EC Nitrates Directive exists.” tion of Ni- tilization package as (Bündnis 90/Die Grünen Bundestag debate rective zation package (CDU/CSU motion 15.02.2017) trates Di- whole/in its individ- 28.06.2018) (2017) as whole/in its rective ual parts violates “the Fertilization Law [...] fails to meet the individual (2017) the requirements of requirements of the European Nitrates Di- parts will meet the Nitrates Di- rective” (Bündnis 90/Die Grünen report the require- rective (Bündnis 15.02.2017) ments of the 90/Die Grünen) Nitrates Di- rective

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Deficient The FO from “We have not implemented the old […] Fertilizer Or- Potentially It is not certain “Well, I am at least not yet convinced that transposition 2006 violates dinance sufficiently according to the stipulations of insufficient whether the what has been presented for the Fertilization of Nitrates the require- the European Union.” (CDU/CSU Bundestag debate transposi- planned/recently Ordinance and the fertilization legislation Directive ments of the 28.06.2018) tion of Ni- adopted fertilization will suffice to fulfil the goals of the Nitrates (2006) Nitrates Di- “In the context of the evaluation of the current Fer- trates Di- package as whole/in Directive.” (Bündnis 90/Die Grünen Bundes- rective tilization Ordinance, it has been detected that the rective its individual parts tag debate 18.02.2016) measures do not suffice to fulfil the goals of the EC- (2017) will meet the re- “If this insufficient compromise will stand the Nitrates Directive comprehensively.” (SPD govern- quirements of the test in front of the critical eye of Europe is ment reply 27.06.2016) Nitrates Directive very doubtful.” (Bündnis 90/Die Grünen Bun- destag debate 16.02.2017)

Negative ef- The “This package has consequences for the structures Germany is Germany is doing “It is popular to speak about the ‘paragon of fects of ferti- planned/new of agriculture [...] In this case, the structural change an environ- less than other virtue of Europe’ and an overcompliance lization legis- fertilization is being reinforced, primarily among small farms.” mental lag- states to address with European provisions – we do not under- lation on ag- legislation will (CDU/CSU Bundestag debate 16.02.2017) gard the nitrate prob- stand how you can make this compatible riculture have/ has neg- “For many farms, the amended fertilization legisla- lem/transpose the [with Germany’s insufficient implementation ative effects tion also means that they are being pushed to their Nitrates Directive of the Nitrates]” (Bündnis 90/Die Grünen on agriculture limits.” (SPD government reply 27.06.2017) (Bündnis 90/Die Bundestag debate 28.06.2018) Grünen) Need to The Fertilization Or- “Therefore, I ask you at this point: If the ver- amend FO dinance of 2017 dict by the ECJ shall be meaningful, take ac- (2017) must be amended tion now finally […] Tackle the Fertilization because it has Ordinance.” (Bündnis 90/Die Grünen Bun- proven to be envi- destag debate 28.06.2018) ronmentally insufficient

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Tab. 14: Descriptions of Policy Processes Underlying the German Transposition of the Nitrates Directive (1991-2018)

Code Description Parties Relevant Example policy- making period(s) EU pressure The European Commission and/or the Euro- All parties 2003- “But in these areas, the European Commission (and in parts also the ECJ) pean Court of Justice make pressure to im- 2006; repeatedly leaves little leeway concerning the implementation of individual prove the transposition of the Nitrates Di- 2012-2017 issues.” (CDU/CSU government reply 23.11.2005) rective e.g. via (threats of) a lawsuit/convic- “The European Union urged a need for change as well and formulated de- tion and concrete demands on how to mands beyond those of the federal-state working group.” (DIE LINKE minor amend the German fertilization legislation interpellation 19.12.2013). Effect of EU European pressure to improve the imple- SPD, 2012-2017 “The lawsuit which lay on the table in Luxemburg has evidently helped a lit- pressure mentation of the Nitrates Directive initi- Bündnis tle make the big German Farmers Union see sense. After willingness for ated/ accelerated the policy reform process, 90/Die consensus had been signalled from there, there was a sufficient foundation enabled an agreement or levelled up the Grünen within the coalition, with the coalition partner, to not only initiate the ferti- rigour of the policy measures lization package, but also to negotiate it and make it succeed.” (SPD Bun- destag debate 29.06.2017). “After Minister Schmidt had grandiosely announced the Fertilization Law first for Christmas 2014 and then for Christmas 2015, it now lies completely abruptly and surprisingly on the table since Tuesday, to avert the initiation of a lawsuit in Brussels, which is threatening today.”(Bündnis 90/Die Grü- nen Bundestag debate 25.02.2016) Inter-minis- The environmental and agricultural ministry CDU/CSU, 1991- “The Fertilization Ordinance has been sitting around for three years be- terial negoti- do/did not agree on a suitable FO and SPD, Bünd- 1996; cause the CDU-environmental minister and the CDU-agricultural minister ations are/were therefore engaged in lengthy ne- nis 90/Die 2012-2017 cannot agree.” (SPD Bundestag debate 16.12.1994) gotiations; they disagree(d) also on the gen- Grünen, “This procedure could have been carried out more quickly. We could have eral agricultural policy approach FDP had the Fertilization Law already […] But the steady back and forth between the federal agricultural ministry, which held out, and the environmental ministry has led to a prolongation.” (CDU/CSU Bundestag debate 25.02.2016)

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Inter-com- The environmental and the agricultural SPD, 1991- “The determination of minimum distances to water bodies has proven to mittee dis- committee of the Bundesrat do not agree CDU/CSU 1996; be still contested between the environmental and the agricultural commit- sent (BR) on the suitable policies to address aquatic 2012-2017 tee.” (SPD (Nds.) motion 14.12.1995) nitrate contamination Environmen- Individual bundesländer lobby/lobbied for CDU/CSU, 1991- “The bundesländer have already asked the federal government several tal advocacy an amendment/tightening of the fertiliza- SPD, Bünd- 1996; times to present a new Fertilization Ordinance.” (Bündnis 90/Die Grünen of the bun- tion legislation/ criticize(d) the government nis 90/Die 2012-2017 (NRW) Bundesrat debate 29.01.2016) desländer for insufficient action e.g. in the Bundesrat Grünen or its environmental committee Environmen- Individual bundesländer governed by the CDU/CSU, 1991- “The länder which are co-governed by the Greens have fought vigorously tal advocacy SPD and/or Bündnis 90/Die Grünen SPD, Bünd- 1996; for this legal draft.” (Bündnis 90/Die Grünen Bundestag debate 25.02.2016) of the red- lobby/lobbied for an amendment/tighten- nis 90/Die 2012-2017 green bun- ing of the fertilization legislation Grünen, desländer FDP Contribution Individual bundesländer governed by the SPD, 2012-2017 “I would also like to thank the green agricultural minister from Lower Sax- of red-green SPD and/or Bündnis 90/Die Grünen helped Bündnis ony, who has helped obtain a compromise in the end through his intensive bundeslän- find an agreement on a new fertilization 90/Die negotiations with the Bavarian state chancellery or rather the Bavarian der to final legislation Grünen state minister.” (SPD Bundestag debate 16.02.2017) agreement Economic Individual bundesländer lobby/lobbied Bündnis 2004- “The minister has written the sheet music but the conductor sits in Munich advocacy of against an amendment/tightening of the 90/Die 2006; and is called Seehofer. Don’t let yourself be slowed down by the blockade the bun- fertilization legislation/ criticize(d) the gov- Grünen, 2012-2017 from Bavaria anymore, Mr. Minister Schmidt.” (Bündnis 90/Die Grünen desländer ernment for unfeasible action FDP Bundestag debate25.02.2016) Weakening The government waters/watered down its SPD 1991-1996 „Every week, a new variant [of a draft for the Fertilization Ordinance] is be- of policies policy suggestions for a Fertilization Ordi- ing present which is increasingly weakened.” (SPD Bundestag debate nance over time 21.06.1995) Time delay The adoption/amendment of the legislation All 1991- “Yes, there are indeed discussions which take so long that in the end, you is delayed. 1996; are actually glad that decisions are at least somehow being made […] Al- 2012-2017 ready since August 2013, we have the joint recommendations for action by the three advisory council by the ministry of agriculture […]” (DIE LINKE Bundestag debate 25.02.2016)

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Difficult ne- The negotiations for the adoption/amend- All 1991- “The discussion about the Fertilization Ordinance which shall be adopted gotiations ment of the fertilization legislation 1996; today was long and difficult. It was accompanied by arguments and differ- were/are difficult and characterized by con- 2012-2017 ences between the agricultural and the environmental side, at the federal flicts between different-minded actors level between the agricultural and environmental department, as well as at (within and between the relevant decision- the level of the länder here in the Bundesrat between the committees agri- making bodies) culture and environment” (Bündnis 990/Die Grünen (NRW) Bundesrat debate 15.12.1995) Insufficient Federal opposition parties complain that DIE LINKE, 2012-2017 “The parliamentary group DIE LINKE stated that the whole consultation involvement they have not been sufficiently involved in Bündnis process concerning the fertilization legislation since the beginning of 2016 the formulation of the new fertilization leg- 90/Die had not occurred in a satisfactory manner from a parliamentary point of islation Grünen view. Repeatedly, the parliamentary groups of the CDU/CSU and SPD had announced a consultation in the committee, but then withdrew on short notice.” (DIE LINKE environmental committee report 15.02.2017) SPD commit- Within the coalition government with the SPD, DIE 2012-2017 “Also concerning the farm-gate balance, thank God the SPD asserted itself.” ment CDU/CSU, the SPD fought for strict fertiliza- LINKE, (DIE LINKE debate Bundestag 16.02.2017) tion regulations in the interest of water pro- CDU/CSU “I am grateful to Wilhelm Priesmeier and my own parliamentary group for tection cutting the knot for the Fertilization Ordinance and the Fertilization Law.” (SPD (MVP) Bundestag debate 19.01.2017) Environmen- The political opponents engage only with/ CDU/CSU 1991- “In this relation, I have now read with interest from Mrs. Höhn in North- tal clientele cater to environmental interest groups 1996; Rhine-Westphalia, I cite: Our natural partner for the ecological re-adjust- politics 2012-2017 ment of our policy are the environmental and nature conservation groups and citizen’s initiatives in this country. No word about our farmers. This is apparently politics against agriculture, not with agriculture.” (CDU/CSU Bundestag debate 07.11.1995) Economic The political opponents (primarily SPD, 1991- “The whole fuss which occurred here has only been created because the clientele pol- CDU/CSU) engage only with/cater to eco- Bündnis 1996; German Farmers Union, to whom you from the CDU/CSU always give in, did itics nomic interest groups i.e. the farmers union 90/Die 2012-2017 not agree.” (Bündnis 90/Die Grünen Bundestag debate 29.06.2017) and agro-industry Grünen

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Appendix D: Key Assumptions in the Scientific Literature and the Em- pirical Findings of this Thesis Tab. 15: Overview of Key Assumptions and Empirical Findings

Key assumptions Empirical findings Cleavage theory 2 central cleavages drive the party-political position- Supporting evidence: ing vis-à-vis agricultural pollutants in Germany: Both cleavages featured prominently in the policy • exceptionalism vs. post-exceptionalism process underlying Germany’s transposition of the (CDU/CSU vs. Bündnis 90/Die Grünen) Nitrates Directive. • market liberalism vs. state interventionism Additional insights: (right/centre-rigth wing parties (CDU/CSU, The positioning of the other parties besides the FDP, AfD) vs. left/centre-left wing parties CDU/CSU and Bündnis 90/Die Grünen along the ex- (SPD, Bündnis 90/Die Grünen, DIE LINKE) ceptionalism-post-exceptionalism divide was also (Schaub, 2019) very consistent (with the SPD and DIE LINKE identifying with post-exceptionalism and the FDP with exceptionalism) and relevant for the policy process, given the party-political balance of power. Market liberalism was not promoted in its pure form by the right/centre-right wing parties: These parties were principally opposed to state interventions that constrained agricultural production (‘bounded market liberalism’). Policy-makers of the same party but at different levels of government (federal vs. state level) or in different functions (agricultural vs. environmental ministry) did not always agree on the best approach to the nitrate issue. Cleavages hinder an adequate policy response to Contrary evidence water pollution from agricultural sources. Cleavages as such did not explain the policy output: (Schaub, 2019) Importance of the political leverage of the parties on both sides of these cleavages. Punctuated Equilibrium Framework Decision-making processes are characterized by Supporting evidence: bounded rationality (Baumgartner and Jones, 1993). Policy-makers relied on uncertain and complex information; political attention to the nitrate issue fluctu- ated. Political attention is a central yet scarce currency in Supporting evidence: the policy process Even post-exceptionalist parties did not heed the ni- ➔ Need for major events/ accumulation of trate issue at all times, which delayed the initiation smaller events to attract political attention of policy reform until new information on aquatic ni- to a topic. trate contamination was released and EU pressure (Baumgartner and Jones, 1993; Green-Pedersen and built up. Wolfe, 2009). Additional insights: Institutionalized monitoring and policy revision requirements helped ‘remind’ the parties of the nitrate issue.

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The legal obligation to comply with EU law and the zeal of the European Commission to enforce this obligation served as powerful agenda-setters. Parties are drawn to topics which resonate with ex- Supporting evidence: isting political cleavages (Green-Pedersen and Parties embedded their preferences concerning the Wolfe, 2009). nitrate issue in their general stances on agricultural policy to underline their political profile and distinguish themselves from their political opponents. Parties used the nitrate issue to criticize their political opponents. Partisan control over the relevant policy venues Supporting evidence: helps explain policy change or stability (Green- Parties used their political leverage in the relevant Pedersen and Wolfe, 2009). policy venues to further their policy preferences. Additional/alternative insights: Which policy problems a policy venue was meant to address mattered as well in the reform process, due to clashes between agricultural and environmental policy-makers (e.g. agricultural vs. environmental ministry) The substitution of one policy image by another nur- Partly supporting evidence: tures policy change (Baumgartner and Jones, 1993). The post-exceptionalist policy image did not substitute the exceptionalist policy image, and the continuous competition of these two policy images hampered policy change. Venue-shopping: The shift of policy-making respon- Additional/alternative insights: sibility to novel policy venues nurtures policy change Party-political venue-shopping: While there was no if the new policy venues are more responsive to the shift in policy responsibility between policy venues, calls for policy reform (Baumgartner and Jones, parties used their political leverage in the existing 1993). policy venues strategically to further their policy preferences. The need for cooperation with more environmen- Supporting evidence: tally-oriented parties can lead more economically- Exceptionalist/market liberal parties made some oriented parties to accept further reaching environ- concessions to their post-exceptionalist/state inter- mental policies than they had originally envisioned ventionist competitors in other/shared policy ven- (Green-Pedersen and Wolfe, 2009). ues. Additional/alternative insights: This dynamic unfolded also across government levels (between the federal government and decision-making bodies representing state governments). Post-exceptionalist/market liberal parties made some concessions to their exceptionalist/state interventionist competitors in other/shared policy venues as well. The need for cross-partisan cooperation can also Partly supporting evidence: lead to deadlock or efforts by a coalition govern- While an agreement was found in all rounds of Ger- ment to keep topics off the agenda (Varone, Patrick man nitrate policy making, dissent between different Stouthuysen and Schiffino Nathalie, 2005; Walgrave parties with decision-making power delayed the and Varone, 2008; Schiffino, Ramjoué and Varone, adoption of new policy output substantially. 2009).

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Issue ownership of a competitor on the other side of Supporting evidence: a political cleavage can encourage a party to address The German parties did not want to cede all creden- an issue to some extent in order to prevent reputa- tials for environmental consciousness or socio-eco- tional gains of this competitor (Green-Pedersen and nomic trustworthiness, respectively, to their com- Wolfe, 2009). petitors. European policy requirements are one input factor Supporting evidence: into national political dynamics which is being pro- The parties did not mechanically translate European cessed according to the goals and priorities of do- demands into national law but sought to promote mestic political parties (Green-Pedersen and Wolfe, their partisan preferences in the transposition pro- 2009; Carter and Jacobs, 2014). cess. Additional/alternative insight: Legal uncertainty increased the scope of domestic politics. European policy requirements and European zeal to enforce them had a significant impact on domestic politics: The threat of European infringement procedures helped the post-exceptionalist/state interventionist parties further their policy suggestions. EU implementation literature European policy requirements are one input factor Supporting evidence: into national political dynamics which is being pro- The parties did not mechanically translate European cessed according to the goals and priorities of do- demands into national law but sought to promote mestic political parties (Treib, 2003, 2014). their partisan preferences in the transposition process. Additional/alternative insights: Legal uncertainty increased the scope of domestic politics. European policy requirements and European zeal to enforce them had a significant impact on domestic politics: The threat of European infringement procedures helped the post-exceptionalist/state interventionist parties further their policy suggestions. If the governing parties hold favourable policy posi- Partly supporting evidence: tions vis-à-vis the content of EU law, transposition All parties approved of the Nitrates Directive. When tends to be faster and more adequate than if they post-exceptionalist/state interventionist parties, oppose the European requirements (Treib, 2003; who interpreted the Nitrates Directive in a more rig- Toshkov, 2008; Sedelmeier, 2009; Avdeyeva, 2010; orous way/saw a greater need for nitrate policy ac- Spendzharova and Versluis, 2013). tion than their exceptionalist/market liberal counterparts, governed at the federal level, they advocated a faster and stricter reform of the NAP than the other parties. Yet, their zeal for reform was inhibited by the political strength of their opponents in other policy venues. Ministers are central figures due to their institutional Supporting evidence: rights and informational advantages (Treib, 2003; The agricultural and environmental ministers initi- König and Luig, 2014). ated the reform process, provided the first policy drafts and were repeatedly called out by parliamentarians. Dissent between these two ministers hampered the reform process.

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The distribution of policy-making competencies Partly supporting evidence: across different parties (e.g. due to coalition govern- Dissent between different-minded parties in differ- ments or the involvement of different decision-mak- ent policy venues delayed the policy process. ing bodies in the policy process) hampers the trans- Additional/alternative insights: position of EU directives, both time- and content- wise, if these parties hold strong and opposing views The final output was a compromise between differ- on a subject matter (Haverland, 2000; Weale et al., ent-minded parties, which was in some occasions 2002; Giuliani, 2003; Treib, 2003; Bähr, 2006; stricter, and in other instances more lenient than the Toshkov, 2008). policies which would most likely have been adopted in a polity with a greater concentration of power (depending upon the party-political composition of each policy venue). The transposition path which a member state Supporting evidence: chooses determines the political leverage of differ- The decision to transpose the Nitrates Directive in ent parties in the policy process (Steunenberg, the form of ordinances did not make much of a dif- 2006). ference, given the tight control of the government over the Bundestag. The decision to devise the transposition as a joint task of agricultural and environmental policy-makers delayed the reform process but helped ensure that both environmental and agricultural perspectives were considered.

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Appendix E: Drafts and Final Acts of the Fertilization Ordinance (1996-2017) Tab. 16: Drafts and Final Acts of the Fertilization Ordinance Adopted in 1996

Suggestions in the gov- Government draft for a Fertilization Criticism and recommenda- Criticism and recommenda- Recommendations for changes Fertilization Ordinance ernment’s draft version Ordinance, published on 3rd July tions for changes by the SPD tions for changes by Bündnis by the Bundesrat committees 1996 (DüV i. d. F. v. 26. for a Fertilization Ordi- 1995 (BR-Drucks. 402/95) 90/Die Grünen published on 1st December Januar 1996) nance published in Feb- 1995 (BR-Drucks. 402/1/95) ruary 1995 which were and recommendations for Incl. justification of the intended reg- no longer included in the changes by individual state ulations by the governing parties version published on 3rd governments July 1995 Incl. divergent positions of the (SPD minor interpellation environmental committee and 14.07.1995) the agricultural committee of the Bundesrat Providing guidelines for envi- General observations by the ronmentally-friendly fertiliza- environmental committee tion practices should be the The FO draft is too vague. Its principal and explicit goal of provisions should therefore be the FO (Bundestag debate specified e.g. via administrative 25.04.1991) guidelines regarding the technological state of the art, methods to examine the soil and the nutrient supply of different crops. The bundesländer should be authorized to levy fines for non- compliance with the regulations of the FO. The bundesländer favour an implementation of the Nitrates Directive/applicability of the Fertilization Ordinance across the country (CDU/CSU Bundes- tag debate 15.12.1995)

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Suggestions by individual bun- desländer Need for guidelines to prevent gaseous nitrogen emissions (SPD + Bündnis 90/Die Grünen (ST) motion 13.12.1995) § 3 (1) §2 (1) Criticism of July draft: § 2 (1) § 2 (1) §2 (1) Fertilization only shortly Fertilizers have to be applied accord- Fertilization with manure out- Fertilizers must be applied, on Prevention of nitrate leaching Fertilizers have to be ap- before or during plant ing to “good agricultural practice” side growth period damages each schlag and in terms of tim- into the water should be a goal plied according to “good growth (time- and quantity-wise): Adequate water (minor interpellation ing and quantity so that in its own right, with an equal agricultural practice” nutrition of plants, prevention of 14.07.1995) - the plants can use all nutri- standing to the need of suffi- (time- and quantity-wise): leaching into water bodies The permissible deductible ents, given the local environ- cient nutrient supply (Opposed Adequate nutrition of Change compared to February draft: losses (storage + application) mental and cultivation condi- by agricultural committee) plants, prevention of Need-oriented nutrient supply be- allow fertilization above the tions and the nutrient availa- Fertilizer should be applied in leaching into water bod- cause of – sometimes considerable – limits of the manure regula- bility of the fertilizers such a way to become available ies time span between fertilization and tions of the länder and scien- - the nutrient demand of the in sufficient supply during plant Acceptable, deductible N nutrient availability especially in the tific recommendations (minor plants is not exceeded growth to satisfy plant needs losses during application case of solid organic fertilizers (regu- interpellation 14.07.1995) - nutrient losses (leaching, vo- Need to also prevent atmos- of organic fertilizer from lation in line with water protection latilization) are prevented pheric deposition (Opposed by animal origin: 20% goals (CDU/CSU + FDP government - application losses are mini- agricultural committee) reply 23.08.1995) mized (max. 10% of N) Acceptable, deductible N losses (Motion 21.11.1995) Acceptable, deductible N losses dur- during application of organic ing application of organic fertilizer fertilizer: 10% from animal origin: 20% Suggestions by individual bun- Permissible deductible losses from or- desländer ganic fertilizers are in some cases sig- Fertilization with specific nutri- nificantly lower than the actual losses ents should only occur up to during storage and fertilization -> Re- the plant need for each of quires major efforts from farmers, these nutrients (SPD + Bündnis will lead to a more careful handling 90/Die Grünen (ST) motion of manure. Limitations of applicable 13.12.1995) nutrients/schlag according to fertilizer need determination still apply to organic fertilizers (CDU/CSU + FDP government reply 23.08.1995) § 2 (2) § 2 (1)

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Catch crops are desirable if Catch crops are desirable there is no autumn crop if there is no crop in autumn § 3 (2) §2 (2) Criticism of July draft: §2 (2) § 2 (2) §2 (2) Equipment must corre- Equipment must ensure appropriate Government wants to accept Equipment must correspond to Equipment must correspond to Equipment for fertiliza- spond to the generally quantification and distribution, must technologically flawed equip- the technological state of the the generally recognized tech- tion application must cor- recognized technological be adequate for soil and terrain ment. To reduce nitrogen art: Only necessary quantities nological state of the art, respond with the gener- state of the art Some new equipment cannot be used losses, mandatory minimum re- of fertilizers should be applied, equipment must ensure need- ally recognized techno- on some terrains (e.g. steep slopes) quirements for environmen- emissions during distribution oriented application and low- logical state of the art tally-friendly application tech- should be as low as possible emission distribution, need to and ensure a use of ade- or would be environmentally detrimental (CDU/CSU + FDP government nologies or the demand for the (Motion 21.11.1995) use possibilities to reduce gase- quate quantities and an latest technological state of the ous nitrogen losses adequate distribution as reply 23.08.1995) Maybe there should be transi- art for environmentally-friendly well as a low-emission ap- Farmers cannot buy new equipment tion and subsidy regulations for (Opposed by agricultural com- application techniques would plication. Need to con- every year (CDU/CSU Bundestag de- the purchase of equipment mittee) be necessary (Bundestag de- sider the conditions of bate 15.12.1995) bate 25.04.1991) (Motion 21.11.1995) the terrain and the soil Old, less environmentally during the selection of friendly equipment may be the appropriate equip- used under the new FO; the ment government could at least have stated a transition period until which the equipment of the technological state of the art must be adopted (minor interpellation 14.07.1995) §2 (3) There should be fertilization- § 2 (3) § 2 (3) §2 (3) Nitrate leaching into adjacent water free buffer zones to water bod- Direct input into surface water Buffer zone: 5m, 10m in case of Nitrate leaching into adja- bodies and land areas must be pre- ies of at least 10 metres, espe- bodies must be prevented via steep slope cent water bodies and cially in case of slopes vented (inter alia via buffer zones be- sufficient distance: The buffer (State agency in charge may land areas must be pre- tween cultivated lands and water (Motion 05.10.1995) zone should be 5m in plain ar- grant different regulations) vented (inter alia via bodies) Need to consider terrain and eas, 10 m in hillside locations buffer zones between cul- Representatives of water re- (Opposed by agricultural com- soil conditions tivated lands and water source management see the (Motion 21.11.1995) mittee) No concretization of required mini- need for a 10 m buffer zone bodies, which the state Suggestions by individual bun- mum distance because the necessary (minor interpellation agency in charge may de- desländer width varies, depending upon the 14.07.1995) termine) Exemptions or further reaching used equipment and the local conditions -> Prevent over-regulation regulations may be granted by

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(CDU/CSU + FDP government reply the state agency in charge (SPD 23.08.1995) (Nds.) motion 14.12.1995) Exemption of small water bodies of subordinate importance (SPD (HH) motion 14.12.1995) §2 (3) There should be a ban for liquid § 2 (3) § 2 (4) §2 (3) No fertilization on land at risk of manure application on frozen No fertilization during expected No fertilization while the soil No fertilization on land at flooding during usual flooding times or snow-covered soil (Motion flooding times on areas with cannot absorb the fertilizer risk of flooding during 05.10.1995) § 2 (4) flooding risk (water saturated, frozen or usual flooding times snow-covered soil) (Delete the No fertilization while the soil cannot (Motion 21.11.1995) § 2 (4) word “deeply” and “heavily”) absorb the fertilizer (water saturated, No fertilization while the deeply frozen or heavily snow-cov- (Opposed by agricultural com- soil cannot absorb the ered soil) mittee) fertilizer (water satu- Melting of lightly snow-covered or rated, deeply frozen or lightly frozen soil can enable nutrient heavily snow-covered absorption. Fertilization in such cases soil) can prevent damage to the soil structure. Adequate decision about when (not) to fertilize should be made at the local level, aided by consultation (CDU/CSU + FDP government reply 23.08.1995) Need for regulations regarding § 3 (1) manure storage (Bundestag de- Required storage capacity for bate 25.04.1991) organic fertilizer from animal Regulations regarding manure source: 180 days at max. live- storage are especially needed stock numbers in regions with a lot of livestock Storage facilities must be con- (Motion 21.06.1994) structed in a way that leaching/overflowing in case of high precipitation can be ruled out. Maybe transition/subsidy regulations (Motion 21.11.1995)

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§ 3 (4) Need to consider heightened § 3 (4) § 3 (4) § 3 (5) risk of nitrate leaching on (agricultur- Need to consider higher re- Need to consider heightened Need to consider height- ally used) peatland leases of organically bound N risk of nitrate leaching on (agri- ened risk of nitrate leach- on peatland in fertilizer balance culturally used) peatland and ing on (agriculturally -> reduce N application accord- other soil types, e.g. drained used) peatland ing to legal thresholds soil (Motion 21.11.1995) Organic fertilizer must be applied in at least two separate doses on these lands Application of max. 120 kg N/ha/a on peatland (Opposed by agricultural committee) §3 (2) § 3 (2) § 3 (2) §3 (2) Ammonia emissions during fertiliza- No fertilization on uncultivated Need to use specific equipment Ammonia emissions dur- tion with liquid organic fertilizer land or set asides and procedures to apply liquid ing fertilization with liq- should be prevented as much as pos- (Motion 21.11.1995) organic fertilizer uid organic fertilizer sible, especially via application close No fertilization of these sub- should be prevented as to the ground stances during strong sunshine much as possible, espe- Need to consider weather and vege- or heavy rain cially via application close to the ground tation All organic fertilizer of animal Liquid organic fertilizer must be im- origin must be immediately Need to consider weather mediately worked into the soil on un- worked into the soil on unculti- and vegetation cultivated land, ideally on the same vated land Liquid organic fertilizer day (Opposed by agricultural com- must be immediately mittee) worked into the soil on uncultivated land § 3 (3) § 3 (3) § 3 (3) § 3 (3) After the harvest of the main crop, After the harvest of the main After the harvest of the main After the harvest of the organic fertilizers may only be ap- crop, organic fertilizers may crop, organic fertilizers may main crop, organic ferti- plied onto fields with (cover) plants only be applied onto fields with only be applied onto fields with lizers may only be applied or straw fertilizer, and no more than (cover) plants (within the vege- (cover) plants or straw ferti- onto fields with (cover) 40 kg ammoniacal N or 80 kg N/ha tation period), and no more lizer, and no more than 40 kg plants or straw fertilizer, than 40 kg ammoniacal N or 80 kg N/ha and no more than 40 kg kg N/ha (Opposed by agricultural com- ammoniacal N or 80 kg (Motion 21.11.1995) mittee) N/ha

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Against blocking periods: It should be Ban for liquid manure during § 3 (3) § 3 (1) § 3 (4) permissible to apply manure in Octo- certain periods (e.g. 15th Octo- The bundesländer should de- No use of organic fertilizer from No use of organic fertiliz- ber if the plant cover, weather and ber-15th February) (Motion termine the dates of a blocking animal origin between 15th Oc- ers between 15th Novem- soil allow it 05.10.1995) period for N fertilizer tober and 15th February (Exten- ber and 15th January (CDU/CSU Bundestag debate (Motion 21.11.1995) sion can be demanded by state (state agency in charge 15.12.1995) agency in charge) (Opposed by can levy extensions or re- There should be a concrete agricultural committee) ductions) blocking period from 15th Oc- tober – 31st January § 3 (3) (Bundestag debate 15.12.1995) No use of liquid organic fertilizer from animal origin be-

tween 15th November and Fertilizer should only be applied 15th January (State agency in during vegetation period charge can make further-reach- (Motion 21.11.1995) ing regulations/grant exemptions) Suggestions by individual bun- desländer No use of liquid organic fertilizer from animal origin between 15th October and 31st January (State agency in charge can make further-reaching regulations/grant exemptions) (SPD-Bündnis 90/Die Grünen (Nds.) Motion 14.12.1995) § 3 (7) The upper limit for N (170kg § 3 (6) § 3 (6) § 3 (7) Organic fertilizers from animal origin N/ha) should apply to all ferti- Organic fertilizers from animal Organic fertilizers from animal Organic fertilizers from may only be applied up to the follow- lizers, including synthetic ones, origin may only be applied up origin may only be applied up animal origin may only be ing annual quantities of N/ha (on and atmospheric deposition, to the following annual quanti- to the following annual quanti- applied up to the follow- farm average): immediately (i.e. without tran- ties of N/ha: 120 kg for ties of N /ha (on all fields, not ing annual quantities of sition period) Grassland: 210 kg cropland, 160 kg for grassland on farm average): 170 kg N/ha (on farm average): Criticism of July draft: N/ha/a Cropland: 210 kg until 30th June (Motion 21.11.1995) Grassland: 210 kg 1997, afterwards 170 kg The calculation of the upper (Opposed by agricultural com- Cropland: 210 kg until limits for organic fertilizer per mittee) Need to consider nutrient input from 30th June 1997, after- farm average allows an overfer- livestock grazing wards 170 kg tilization of individual fields -> 144

Exclusion of set-asides unless they The calculation should occur Need to consider nutrient input Need to consider nutrient serve other purposes than nutrition field- rather than farm-based from livestock grazing input from livestock graz- ND permits both upper limit/area + (Bundestag debate 25.04.1991) ing upper limit on farm average; rules Experts recommend that the Exclusion of set-asides about need-oriented fertilization pre- 170 kg N/ha limit be introduced unless they serve other vent over-fertilization. without a transition period purposes than nutrition Initial upper limits of 210 kg /rather (Minor interpellation than 170) are permissible under the 14.07.1995) ND, fertilization regulations prevent accumulation of nitrogen in the soil (CDU/CSU + FDP government reply 23.08.1995) (Concrete permissible fertilization quantities should be determined by the Bundesländer (FDP Bundestag debate 25.04.1991.) § 4 (1) Need to calculate fertilizer Registration of all fertilization § 4 (1) § 4 (1) Fertilization need must be calculated need for individual fields and soil cultivation measures Fertilization need must be cal- Fertilization need must on uniformly cultivated, connected ("Schläge"), regular samples ra- per schlag + farm-level fertiliza- culated on uniformly cultivated, be calculated on uni- areas with the same plant (type) or ther than estimates, need to tion plan across all crop rota- connected areas with the same formly cultivated, con- several schläge with similar condi- consider atmospheric deposi- tions plant (type) or several schläge nected areas with same tions, uniform cultivation and same tion (Bundestag debate (Motion 21.11.1995) with similar conditions, uniform plant (type) or several 25.04.1991) plant (types) § 4 (3) cultivation and same plant schläge with similar con- Criticism of July draft: (types) of max. 5ha ditions, uniform cultiva- Principles to calculate fertilizer need: Yearly determination of N con- tion and same plant Consider: Government plans to admit es- tent in soils before vegetation Need to consider nutrient input (types) and a surface area - Nutrient needs of plants, based timation and calculation proce- period for every schlag > 1 ha from atmospheric deposition of max. 5ha on expected yields and quality dures as well as rough numbers on farms mentioned under § 4 (Opposed by agricultural com- under local conditions and culti- to estimate nitrogen soil con- based on mittee) Principles to calculate fer- tents in the FO although these tilizer need: Consider: vation practices - scientifically recognized cal- methods are known to have a - Nutrients in the soil that will be- culation methods (developed - Nutrient needs of high error probability (Bundes- come available for plants, espe- by state agency in charge or plants, based on ex- tag debate 25.04.1991) cially as a result of the local con- recommended consultation pected yields and ditions (soil type, climate etc.) Need to include local condi- body) quality under local - Other soil conditions tions e.g. existing nitrate con- - soil analysis according to sci- conditions and culti- - Nutrient inputs from other culti- tamination, in the fertilizer entifically recognized analysis vation practices vation practices than fertilization need calculation, determine - Nutrients in the soil (Motion 21.11.1995) that will become available for plants, 145

- Cultivation practices which affect concrete orientation values especially as a result nutrient availability (e.g. tilling, ir- (Bundestag debate 15.04.1991) of the local conditions rigation) (soil type, climate etc.) The N content in soils must be deter- - Other soil conditions mined for every schlag/cultivation - Nutrient inputs from unit, at least yearly, at the time of other cultivation fertilization via practices than fertilization - Examination of representative - Cultivation practices samples or, based on recognition which affect nutrient by the agency in charge: availability (e.g. till- - Use of results from comparable ing, irrigation) locations

- Calculation/ estimation procedures Determination of N con- Sampling/examination must occur tent in soils for every according to scientifically recognized schlag/cultivation unit, at methods least yearly, at the time of fertilization via Soil examination is not feasible every- where (especially on small farms) – - Examination of repre- estimation and calculation proce- sentative samples or, dures are equally suitable based on recognition by agency: (FDP 25.04.1991) - Use of results from Nation-wide orientation values are comparable locations not feasible, given the diversity of lo- - Calculation/estima- cal conditions tion procedures (FDP (25.04.1991) Sampling/examination must occur according to scientifically recognized methods § 4 (5) § 4 (4) § 4 (5) § 4 (5) N content of organic fertilizer must Determination of N content in Deductible storage losses: 10% N content of organic ferti- be determined based on examina- organic fertilizer and ammo- for liquid manure, 25% for solid lizer must be determined tions or estimation/calculation proce- nium in liquid manure accord- manure based on examinations or dures ing to scientifically recognized estimation/calculation Deductible storage losses: 10% for analysis: Once, repetition in procedures recognized by liquid manure case of significant change in state agency in charge feed composition. 146

(Motion 21.11.1995) Deductible storage losses (10% for liquid manure, 25% for solid manure) §5 (1 + 2) §5 (1 + 2) There should be a documenta- § 4 (1) §5 (1 + 2) §5 (1 + 2) Farms with > 5 ha or >0,5 Farms with > 10ha or >1 ha of certain tion obligation for all fields > Farms > 5 ha agricultural land + Farms with > 3 ha or >0,5 ha of Farms with > 10ha or >1 ha of certain crops (vege- crops (vegetables, grapes, hop, to- 1ha, irrespective of farm size > 0,5 horticultural land/vegeta- certain crops (vegetables, ha of certain crops (vegetables, grapes, strawber- bacco) need to make annual farm- (exclusion of organic agricul- bles/hop/vineyards/tobacco grapes, strawberries, hop, to- tables, grapes, strawberries, hop, tobacco, level nitrogen comparisons ture, if the farms already meet have to make an annual nutri- bacco, woods) need to make ries, hop, tobacco, the documentation require- woods) need to make an- Farms that generate less than 80 kg ent balance based on scientifi- annual nitrogen comparisons woods) need to make an- ments) nual nitrogen compari- N per year from their own livestock cally recognized procedures (Opposed by agricultural com- nual farm-level nitrogen (Motion 05.10.1995) sons and do not use additional fertilizers/ (Motion 21.11.1995) mittee) comparisons A regular administrative moni- nitrogen-rich substances are ex- Extensively working farms with Need for nutrient comparison Farms that generate less toring of the documentation st empted low livestock density should be for every schlag from 1 July than 80 kg N from their obligations is necessary for ef- All farms have to comply with rules exempted from documentation 2001 own livestock or use less fectiveness (Bundestag debate for good agricultural fertilization obligation to reduce bureau- (Opposed by agricultural com- than 40 kg N per year, as 25.01.1991) practices, also if they are not required cratic work (Bundestag debate mittee) well as tree nurseries and to make a nutrient comparison. Criticism of July draft: Lack of 15.12.1995) Farms that generate less than uncultivated vineyards sanctions in case of nitrogen and fruit meadows are 10 ha rule includes 90% of agricul- 80 kg N per year from their surpluses exempted tural land + smaller farms with inten- own livestock and do not use (minor interpellation sive crops Exemption of small farms additional fertilizers/ nitrogen- 14.07.1995) without intensive crops for reasons of rich substances, as well as tree proportionality. Rule in line with ND nurseries and uncultivated and water protection goals Nutrient vineyards and fruit meadows comparisons serve primarily infor- are exempted mation of farmer – therefore no sanc- Suggestions by individual bun- tions (CDU/CSU + FDP government re- desländer ply 23.08.1995). Farms that use less than 40 kg Tightening demanded by Bundesrat ( N per year should also be ex- > 3 ha; nutrient comparison/schlag) empted would be an additional burden for (SPD + Bündnis 90/Die Grünen farmers without environmental bene- (NRW) motion 14.12.1995) fits (Bundestag debate 15.12.1995) § 5 (3) § 4 (1) § 5 (3) § 5 (3) Nutrient comparison must include Need to consider for annual nu- Nutrient comparison must in- Nutrient comparison - N input from fertilizers, waste trient balance: clude must include and Leguminosae - N input from fertiliz- - N removal via harvest ers, externally 147

- Nutrient mineralization, - N input from fertilizers, ex- purchased feed, based on soil, weather and ternally purchased feed, waste and Legumi- cultivation conditions waste and Leguminosae nosae - Applied fertilizer - N removal via harvest/ sale - N removal via har- - Nutrient quantities from of plant/animal products vest/ sale of plant/an- feed purchases imal products - Nutrient inputs from live- Both farm-gate and field-stall stock grazing balances should be possible be- - Nutrient inputs from at- cause farm-gate balances are mospheric deposition more precise and easier and - Nutrient removal from sale there is positive experience of plant and animal prod- with them ucts Need for scientifically approved nitrogen balance calculation methods (Motion 21.11.1995) § 5 (4) In case of regular surpluses in nutrient balance, farms have to seek consultation (Opposed by agricultural committee) § 6 (1+2) § 4 (5) § 6 § 6 (1+2) Farms have to document the results Documentation of nutrient bal- Farms have to prove that they Farms have to document of examinations and calculations and ances and schlag card indices do not exceed the legally per- results of examinations nutrient comparisons and keep them must be kept for 10 years mitted nitrogen balance/schlag and calculations and nu- for at least 9 years (Motion 21.11.1995) (Opposed by agricultural com- trient comparisons and mittee) keep them for at least 9 Need to document examina- years tions and calculations and nutrient comparisons, not just the results § 7 Criticism: Many regulations lack § 7 § 7 § 7 Non-compliance = contravention (enforceable) sanctioning in- Contraventions should be crim- New inclusions (besides those Non-compliance = contra- (non-criminal offense) struments inal offenses already listed in the govern- vention (non-criminal of- (Motion 21.11.1995) ment draft): fense) 148

No prevention of nutrient leaching (minor interpellation No use of appropriate equip- No prevention of nutrient into water 14.07.1995) ment leaching into water Fertilization on water saturated, No respect of buffer zones Fertilization on water sat- deeply frozen or heavily snow-cov- (Opposed by agricultural com- urated, deeply frozen or ered soil mittee) heavily snow-covered soil Application of > 40 ammoniacal N or No respect of blocking periods No immediate working of 80 kg N from organic fertilizer after liquid manure into the No use of required techniques main crop (§ 3 (3)) soil for the application of liquid or- No (full, timely, correct) determina- ganic fertilizer Application of > 40 am- tion of nutrient content in the soil moniacal N or 80 kg N (Opposed by agricultural com- from organic fertilizer af- No (full, timely, correct) documenta- mittee) tion or keeping of results for the re- ter main crop (§ 3 (3)) No immediate working of liquid quired 9 years Application of >170 kg (N) manure into the soil (cropland) or >210 kg No examination of soil as re- (grassland) quired Application of organic fer- No (correct) determination of N tilizer during blocking pe- content of organic fertilizer riod (Opposed by agricultural com- No (full, timely, correct) mittee) determination of nutrient No carrying out of timely, cor- content in the soil rect and complete nutrient No determination of N comparison content of organic ferti- (Opposed by agricultural com- lizer as required mittee) No (full, timely, correct) Suggestions by individual bun- documentation or keep- desländer ing of results for the re- Extension of contravention required 9 years garding blocking period for liquid organic fertilizers (SPD + Bündnis 90/Die Grünen (NRW) motion 14.12.1995) Replace words “Not correct” with “not as required” to ensure legal security for farmers in case of unclear regulations (SPD + Bündnis 90/Die Grünen (ST) motion 13.12.1995) 149

No determination of N content of organic fertilizer as required (SPD + Bündnis 90/Die Grünen (ST) motion 13.12.1995) No carrying out of timely and complete nutrient comparison according to requirements (SPD + Bündnis 90/Die Grünen (ST) motion 13.12.1995) § 8 (2) § 8 § 8 (1) § 8 (1) Examination of nitrogen content of There should be no transition Additional transition provision: Until 1st January 2000, soils according to § 4 (2) must be car- periods Until 1st January 2000, the state the state agency in st ried out from 31 December 2000 Instead: Authorization of the agency in charge can grant ex- charge can grant exemp- onwards länder to adopt additional, fur- emptions from the require- tions from the require- ther-reaching ordinances to ments of § 3 (1) concerning fer- ments of § 3 (1) concern- specify local requirements tilization after the harvest of ing fertilization after the harvest of the main crop (Motion 21.11.1995) the main crop if these requirements burden farmers dispro- if these requirements portionately and no harm of burden farmers dispro- water quality must be expected portionately and no harm of water quality must be The requirements concerning expected fertilization equipment of § 2 (2) and the fertilization require- The requirements con- ments of § 3 (2) are applicable cerning fertilization from 1st January 2000 onwards equipment of § 2 (2) and the fertilization require- § 8 (2) ments of § 3 (2) are appli- Examination of nutrient con- cable from 1st January tent of soils according to § 4 (2) 2000 onwards must be carried out from 31st § 8 (2) December 1998 onwards Examination of nitrogen content of soils according to § 4 (2) must be carried out from 31st December 2000 onwards Additional restrictions for certain weather or soil conditions

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should be formulated (Motion 05.10.1995) Need for the designation of Criticism: The FO draft lacks sensitive areas + action pro- certain provisions of the di- grammes rective (designation of areas at (Motion 05.10.1995) risk, development of action programmes)

(Motion 21.11.1995)

Tab. 17: Drafts and Final Acts of the Fertilization Ordinance Adopted in 2006

Fertilization Ordi- Government draft for a Criticism and rec- Recommendations for Government drafts for a Fertiliza- Recommendations for Fertilization Ordinance 2006 nance 1996 Fertilization Ordinance, ommendations changes by the Bundes- tion Ordinance, published on 23rd changes by the Bundes- (DüV i. d. F. v. 10. Januar th (DüV i. d. F. v. 26. Jan- published on 14 June for changes by rat committees pub- September 2005 rat committees pub- 2006) th th uar 1996) 2004 (BR-Drucks. 504/04) the opposition lished on 13 September (BR-Drucks. 703/5 + 704/5) lished on 14 Novem- parties CDU/CSU 2004) (BR-Drucks. ber 2005 (BR-Drucks.

and FDP 500/1/04) 704/1/05) Incl. amendment of Incl. explanations 14.02.2003 (BR- Drucks. 937/02)22

The draft specifies the The draft is an alternative The draft is based on previous regulations but to the government draft. the government draft often cannot proscribe It seeks to amend and under consideration of concrete norms, due to complement the FO of the FO of 1996, which the diversity of local con- 1996, which has largely has largely proven its ditions. Therefore, local proven its value. value. consultation remains key. Goal: Minimize avoidable The Bundesrat draft The draft implements environmental pollution takes account of the many specific demands by without overburdening needed changes to the EU. farmers (in economically/ comply with the Ni- politically difficult times) trates Directive and

22 The Bundesrat asks the federal government to use all discretion provided by the EU Nitrates Directive concerning the permissible upper limits for nitrogen from organic fertilizers from animal origin (BR-Drucks. 937/1/02). The federal government expresses its willingness to respect this demand, in accordance with the stipulations by the European Commis- sion (SPD + Bündnis 90/Die Grünen government reply 01.07.2003). 151

The new regulations The government’s draft is largely follows the gov- might imply additional unfeasible in practice, its ernment draft in these costs for intensive live- high density of regulation points. stock farmers due to the can hardly be adminis- It also adds new regula- potential need for exter- tered. tions demanded by the nal disposal of their ma- The Bundesrat draft takes EU. nure. account of the needed Because of the many For agriculture in general, changes to comply with changes, the draft im- there might be slightly the Nitrates Directive and plies a complete re- higher costs due to addi- largely follows the gov- newal of the FO (rather tional examination re- ernment draft in these than an amendment of quirements. These costs points. the FO of 1996). can probably be compen- sated via lower fertilizer expenditure, however. §2 (1) § 3 (1) Equal to FO 2003 § 3 (3) §3 (3) § 3 (4) Fertilizers have to be Fertilizers should be ap- Application quantity and timing Before the application Application quantity and tim- applied according to plied so that the nutrients shall ensure as much as possible of significant amounts ing shall ensure as much as “good agricultural can be absorbed by the that nutrient become available for of N, the farmer has to possible that nutrient be- practice” (time- and plants in a timely manner plants in a timely manner and in determine the nitrogen come available for plants in a quantity-wise): Ade- and according to the nu- adequate quantities contents in the soil for timely manner and in adequate nutrition of trient needs of the plants, every schlag/cultivation quate quantities plants, prevention of in terms of quantity unit – except grassland leaching into water – at least yearly, at the bodies time of fertilization via Catch crops are desir- - Examination of rep- able if there is no resentative samples crop in autumn or, based on recommendations by the state agency in charge or a recommended consultation body: - Use of results from comparable locations - Calculation/estimation procedures

152

Sampling and examination procedures must be in line with the guidelines by the state agency in charge § 3 (4) Application quantity and timing shall ensure that nutrient become available for plants in a timely manner and in adequate quantities §2 (2) § 3 (6) Equal to FO 2003 § 3 (7) § 3 (10) Equipment for fertili- Equipment for fertiliza- Equipment for fertilization applica- Equipment for fertilization zation application tion application must cor- tion must correspond with the gen- application must correspond must correspond with respond with the gener- erally recognized technological with the generally recognized the generally recog- ally recognized techno- state of the art. technological state of the art. nized technological logical state of the art List of equipment which is prohib- List of equipment which is state of the art and and ensure a use of ade- ited from 1st January 2010 onwards prohibited from 1st January ensure a use of adequate quantities and an in annex 1. But: Equipment bought 2010 onwards in annex 1. quate quantities and adequate distribution as before (…) may still be used until But: Equipment bought be- an adequate distribu- well as a low-emission ap- the 31st December of 2015 fore 14th January 2006 may tion as well as a low- plication (List of prohibited equipment equal still be used until the end of emission application. (List of prohibited equip- to the one of government proposal 2015 Need to consider the ment in annex) 2004) conditions of the terrain and the soil during the selection of the appropriate equipment §2 (3) § 3 (3) Equal to FO 2003 § 3 (5) § 3 (6) § 3 (6) Nitrate leaching into When applying fertilizer When applying fertilizer containing When applying fertilizer When applying fertilizer con- adjacent water bodies containing significant significant amounts of N, a direct containing significant taining significant amounts of and land areas must amounts of N, a direct in- input into surface water bodies amounts of N, a direct N, a direct input into surface be prevented (inter put into surface water must be prevented via a buffer input into surface water water bodies must be pre- alia via buffer zones bodies must be pre- zone of at least 3m or 10m in the bodies must be prevented via a buffer zone of at between cultivated vented as much as possi- case of a steep slope according to § vented via a buffer least 3m (unless equipment lands and water ble 3(6) zone of at least 3m 153 bodies, which the Buffer zone of 2m to sur- Nutrient leaching into surface wa- (unless equipment that that allows precise fertiliza- state agency in face water bodies and ter bodies must be prevented allows precise fertilization is used) charge may deter- other adjacent, verges Dry waterbodies: Rule applies if tion is used) Nutrient leaching into surface mine (unless equipment that water is expected within the next Nutrient leaching into water bodies must be pre- allows precise fertilization four weeks surface water bodies vented is used) No inclusion of water bodies with a must be prevented Need to select appropri- legal exemption ate timing Farmers can be granted an exemption if it is necessary for agricultural cultivation and implies no risk for water quality (e.g. due to the use of adequate equipment) §2 (3) § 3 (2) § 2 (4) §3 (4) §3 (5) No fertilization during No application of fertiliz- No application of fertiliz- No application of fertilizers with No application of fertilizers flooding ers with significant ers with significant significant amounts of N on soil with significant amounts of N § 2 (4) amounts of N on soil that amounts of N on soil that that is flooded, water-saturated, on soil that is flooded, water- is flooded, water-satu- is flooded, water-satu- frozen or covered with more than 5 saturated, frozen or covered No fertilization while rated, frozen at a depth rated, deeply frozen or cm of snow (exceptions are possi- with more than 5 cm of snow the soil cannot absorb of at least 10 cm or cov- deeply snow covered ble with a permit to avoid soil com- (exceptions are possible with the fertilizer (water ered with more than 5 cm paction or improve the effective- a permit to avoid soil com- saturated, heavily fro- Criticism: Government of snow (exceptions are ness of fertilizers) paction or improve the effec- zen or deeply snow formulation = over-regu- possible with a permit to tiveness of fertilizers) covered) lation avoid soil compaction or

improve the effectiveness of fertilizers) § 3 (5) Equal to FO 2003 Need to consider heightened risk of nitrate leaching on (agriculturally used) peatland § 3 (3) § 2 (5) § 3 (5+7) Suggestions by individ- § 3 (7) Restrictions for N fertili- Restrictions for N fertili- Restrictions for fertilization with N ual bundesländer Restrictions for fertilization zation on agricultural land zation on agricultural land fertilizers (excl. solid manure) on Fertilizers must be im- with N fertilizers (excl. solid with a steep slope (ex- with a steep slope (ex- agricultural land with a steep slope mediately worked into manure other than poultry cept in the case of solid cept in the case of solid (°5): the soil within a 10 m manure) on agricultural land manure): Need for plant manure) + erosion risk: distance to water with a steep slope: 154

cover or otherwise direct Need for plant cover or No fertilization within 10 m dis- bodies (CDU/CSU + FDP 10% slope within 20 metres working into the otherwise direct working tance to water bodies unless ex- (BW+BY) motion distance of a water body: soil/other techniques to into the soil/other tech- emption is granted 20.12.2005) No fertilization within 10 me- prevent leaching niques to prevent leach- Within 20 m: Application of ferti- tres distance of water body ing lizer only if the land has sufficient unless special precision Fertilization on land with crop vegetation/mulch or if the fer- equipment is used a steep slope is subject of tilizer is immediately worked into Within 20 metres distance of new legal proceedings the soil on uncultivated land water body fertilizer must be concerning the implemen- immediately worked into the tation of the Nitrates Di- soil on uncultivated cropland rective. or on cropland with underde- This paragraph specifies veloped catch crop, on culti- the regulations of the pre- vated cropland without suffi- vious FO which the EU cient crop develop- criticizes ment/mulch.

§ 3 (8) § 3 (8) § 3 (6+7) are not appli- § 3 (6+7) are not applicable cable to water bodies to water bodies with an ex- with an exemption un- emption under water law; no der water law; no effect effect on further reaching, on further reaching, ex- existing regulations isting regulations §3 (2) § 3 §3 (2) §4 (2) §4 (2) Ammonia emissions Urea and ammoniacial ni- Ammonia emissions dur- Liquid fertilizer incl. poultry ma- Liquid fertilizer incl. poultry during fertilization trogen must be immedi- ing fertilization with liq- nure must be immediately worked manure must be immediately with liquid organic ately worked into the soil uid organic fertilizer (incl. into the soil on uncultivated land worked into the soil on uncul- fertilizer should be on uncultivated land digestate) should be pre- tivated land prevented as much as (within 2 hours for tem- vented as much as possi- possible (e.g. via con- peratures > 25 °C, forbid- ble (e.g. via consideration sideration of weather den >30°C) of weather and vegeta- and vegetation) tion) Liquid organic ferti- Liquid organic fertilizer lizer must be immedi- (incl. digestate) must be ately worked into the immediately worked into soil on uncultivated the soil on uncultivated land land

155

§ 3 (5) Intended limits §6 (1) §6 (1) Nitrogen surpluses from for nitrogen sur- Nutrient comparison must be pre- Nutrient comparison must be fertilization, as measured plus from organic sented to state agency in charge if presented to state agency in according to farm-gate fertilizer under- the following surpluses (kg N/ha, 3- charge upon request mine competitive- balance or aggregation of year average) are being exceeded: § 6 (2) schläge/cultivation units ness of livestock 2006-2008: 90 Acceptable nitrogen balance must not surpass values and horticultural 2007-2009: 80 kg N/ha, 3-year average): given in annex 6(3-year farms, lead to un- average) (see annexes acceptable bu- 2008-2010: 70 2006-2008: Max. 90 3,4,6): reaucratization 2009-2011: 60 2007-2009: Max. 80 for farmers and Acceptable nitrogen sur- administrations In this case: Farm must agree about 2008-2010: Max. 70 plus (kg N/ha/a) (depend- (FDP motion determination of fertilizer need for 2009-2011: Max. ing on farm type): the subsequent fertilization year 06.05.2004) 2005-2007: 60-120 with the state agency in charge 2008-2010: 50-110 § 6 (2) 2011+: 35-90 The state agency in charge can exempt farms from consultation obli- § 3 (5) gation according to (1) based on Higher surpluses may be farm characteristics or determine granted if they cannot be other threshold values for the con- prevented (e.g. due to lo- sultation obligation cal environmental condi- § 6 (4) tions, type of livestock (farming), crop types etc.) Acceptable nitrogen balance (kg N/ha, 3-year average): Recognition: Nutrient surplus cannot fully be pre- 2006-2008: Max. 140 vented 2007-2009: Max. 120 2008-2010: Max.110 2009-2011: Max.100 § 3 (3) §4 (4) Equal to FO 2003 § 4 (5) § 4 (5) §4 (5) After the harvest of After the harvest of the After the harvest of the main crop, After the harvest of the After the harvest of the main the main crop, or- main crop, in winter liq- fertilizers (except solid manure main crop, fertilizers crop, before winter, liquid ganic fertilizers may uid fertilizers and poultry from sources other than poultry (except solid manure fertilizers and poultry manure only be applied onto manure may only be ap- and compost) may only be applied from sources other may only be applied onto fields with (cover) plied onto succeeding onto succeeding crops planted in than poultry and com- succeeding crops, planted in plants or straw ferti- crops, planted in the the same year, according to the post) may only be ap- the same year, according to lizer, and no more same year, according to needs of the plants and as plied onto succeeding their nutritional needs and as

156 than 40 kg ammonia- their nutritional needs compensatory fertilizer for straw crops planted in the compensatory fertilizer for cal N or 80 kg N/ha and as compensatory fer- remaining on the field and no more same year, according to straw remaining on the field, tilizer for straw remaining than 40 kg ammoniacal N/ha current fertilizer need and no more than 40 kg am- on the field, and no more with N of the plants and moniacal N or 80 kg N/ha than 40 kg ammonia- as compensatory ferti- cal/ha lizer for straw remaining on the field and no more than 40 kg ammoniacal N/ha or 80 kg N/ha § 3 (4) § 4 (4) Equal to FO 2003 §4 (4) §4 (4) §4 (4) No use of liquid or- No use of liquid organic No fertilization (except solid ma- No use of fertilizers No use of liquid organic ferti- ganic fertilizers be- fertilizers between nure excl. poultry manure) be- with significant lizers and poultry manure between 15th Novem- 15th October and 15th Jan- tween amounts of N (except tween ber and 15th January uary (cropland) 1st October (unless additional culti- solid manure excl. poul- 1st November and 31st Janu- (state agency in try manure) between 15th November and 15th vation occurs immediately or at the ary (cropland) charge can levy ex- th st th January (grassland) (re- latest until 15 November) and 31 15 October and 31st 15th November and 31st Janu- tensions or reduc- sponsible agency can January (on uncultivated cropland) January (cropland) ary (grassland) (responsible tions) adopt extensions or re- 15th November and 31st January (on 1st November and 31st agency can adopt extensions ductions, e.g. based on cultivated cropland and grassland) January (grassland) or reductions, e.g. based on weather and soil, and ad- (state agency in charge can adopt (state agency in charge weather and soil, and addi- ditional requirements) extensions or reductions, e.g. can adopt extensions or tional requirements) based on weather and soil, and ad- reductions, e.g. based ditional requirements) on weather and soil, and additional requirements) § 3(7) § 4 (2) Criticism: 80% of § 3 (7) §4 (3) §4 (3) Organic fertilizers Organic fertilizers (incl. livestock farms Organic fertilizer (incl. Organic fertilizer (incl. mixes with Organic fertilizer (incl. mixes from animal origin mixes with synthetic ferti- unable to comply mixes with synthetic ferti- synthetic fertilizers) from animal with synthetic fertilizers) may only be applied lizers) may only be ap- with upper limit lizers) may only be ap- origin may only be applied up to from animal origin may only up to the following plied up to the following of 170 kg -> need plied if the following an- the following annual quantities of be applied up to the follow- annual quantities of annual quantities of ni- to purchase syn- nual quantities of nitro- nitrogen (on farm average): 170 ing annual quantities of nitro- nitrogen/ha (on farm trogen (on farm average): thetic fertilizer or gen/ha have not yet been kg/ha gen (on farm average): 170 lease additional average): 170 kg/ha exceeded (on farm aver- Determination of N content in ferti- kg/ha land (CDU/CSU Grassland: 210 kg Need to consider nutrient age): lizers based on table in annex. Determination of N content written interpella- input from livestock graz- 170 kg/ha on average of in fertilizers based on list in tion 16.07.2004) ing all croplands of a farm annex.

157

Cropland: 210 kg until Exclusion of areas with incl. secondary raw mate- Need to partially consider nutrient Need to partially consider nu- 30th June 1997, after- fertilization ban + grass- rial and digestate (except inputs from livestock grazing (ac- trient inputs from livestock wards 170 kg land from farm average from own farm) cording to table in annex) grazing (according to table in Need to consider nu- No deduction of applica- No deduction of applica- annex trient input from live- tion losses tion losses stock grazing (as demanded by ECJ verdict) Exclusion of set- Max. limit of 170 kg = asides mandatory EU provision, Need to consider nutrient No deduction of ap- 210 kg = temporary provi- input from livestock graz- plication losses sion. Government tries to ing get EU permission for an Exclusion of areas with extension, but a permis- fertilization ban from sion requires additional farm average requirements, which are Digestate = contains also being heavily criticized substantial N (Bündnis 90/Die Grünen Elimination of general government reply permission of 210 kg 16.07.2004) N/ha on grassland -in correspondence with EU demand for ND transposition (elimination of transition regulation) § 4 (3) § 3 (8) § 4 (3) Suggestions by individ- The German government 210 kg N/ha/a may be 230 kg N/ha/a on grass- 230 kg N/ha/a may be fertilized on ual bundesländer: sought – and successfully ac- fertilized on grassland land and horticultural grassland and in horticulture if the Derogation rule which quired – an EU permit to and in greenhouse culti- fields (Kulturfolgen im nutrient demand is so high, the permits fertilization make use of the derogation vation if the nutrient de- Gemüsebau), without de- grass is cut at least 4 times a year above the 170kg rule under the ND which al- mand is so high, the grass duction of application or 3 times + livestock grazing, low- threshold should be ex- lows up to 230 kg N/ha from is cut at least 4 times a losses incl. from grazing loss/emission equipment is used, tended because of high organic fertilizer from animal year, low-loss/emission in case of the farm nitrogen surplus does not fertilizer need of farms origin on intensively used grassland equipment is used, the - horticultural farms exceed the permissible levels, the with intensive grassland (CDU/CSU government reply farms has had no nitro- with 50% grassland) state agency in charge approves of (CDU/CSU + FDP (BW) 08.06.2012) gen surplus on average - high fertilization the exemption, based on the avail- 25.11.2005) over the last 3 years, the need able nutrient comparisons state agency in charge ap- - Intensive use of proves of the exemption grassland (4 cuts/a)

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- Plantation of another crop after ploughing of grassland - No use of N secondary raw material fertilizer - State agency in charge checks fertilizer need and grants fertilization in agreement with water agency - No risks for humans, nature, animals New permission every 4 years, state agency in charge can levy further requirements for the region/farm regarding fertilization and documentation ND allows N application > 170 kg N/ha if plants need more/higher precipitation justifies it. Some regions in DE need much more than 170 kg N/ha -> they should be able to use their own organic manure rather than having to buy synthetic one § 4 (1) § 5 § 4 (1) § 3 (1) § 3 (1)

Fertilization need Fertilization need of a Fertilization need must Before application of fertilizers Before application of fertiliz- must be calculated on crop must be calculated be calculated on uni- containing significant amounts of ers containing significant uniformly cultivated, before application re- formly cultivated, con- N, the fertilizer need of the crops amounts of N, the fertilizer connected areas with garding N: for every nected areas with same has to be adequately determined, need of the crops has to be same plant (type) or schlag/cultivation unit plant (type) or several under consideration of the require- adequately determined, un- several schläge with schläge with similar ments to preserve local soil der consideration of the 159

similar conditions, yearly before 1st fertiliza- conditions, uniform culti- fertility. A balance between ex- requirements to preserve lo- uniform cultivation tion vation and same plant pected nutrient need and supply cal soil fertility. A balance be- and same plant Principles to calculate fer- (types) must be guaranteed. tween expected nutrient (types) and a surface tilizer need: Consider: Principles to calculate fer- §3 (2) need and supply must be area of max. 5ha guaranteed. - Nutrient needs of tilizer need: Consider: Fertilization need of a crop must be plants, based on ex- - Nutrient needs of calculated before application for §3 (2) Principles to calculate pected yields and plants, based on ex- every schlag/cultivation unit based Fertilization need of a crop fertilizer need: Con- quality under local pected yields and qual- on the following criteria: must be calculated before ap- sider: conditions ity under local condi- - Nutrient needs of plants, based plication for every schlag/cul- - Nutrient needs of - Nutrient supply from tions and cultivation on expected yields and quality tivation unit, under consider- plants, based on soil and crop residues practices under local conditions and culti- ation of the conditions to expected yields - Nutrient inputs from - Nutrients in the soil vation practices maintain soil fertility, based and quality under other cultivation that will become avail- - Nutrient contents in soil that will on the following criteria: local conditions practices than fertili- able for plants, espe- become available during plant - Nutrient needs of plants, and cultivation zation cially as a result of the growth as a result of the local based on expected yields practices - Available N content local conditions (soil conditions (e.g. climate, soil and quality under local - Nutrients in the soil in fertilizer type, climate etc.) characteristics) conditions and cultivation that will become - Cultivation conditions - Other soil conditions - Other soil conditions practices available for plants, which affect nutrient - Nutrient inputs from - Nutrient inputs from other culti- - Nutrient contents in soil especially as a re- availability (esp. soil other cultivation prac- vation practices than fertilization that will become available sult of the local characteristics) tices than fertilization - Cultivation practices which af- during plant growth as a conditions (soil - Cultivation practices fect nutrient availability (e.g. result of the local condi- type, climate etc.) Calculate nutrient supply which affect nutrient tilling, irrigation) tions (e.g. climate, soil - Other soil condi- for every schlag/cultiva- availability (e.g. tilling, Nutrient quantities that are being characteristics) tions tion unit every year: irrigation) introduced by cultivation practices - Other soil conditions - Nutrient inputs - Representative other than fertilization (e.g. irriga- - Nutrient inputs from other from other cultiva- soil/plant sample Similar conditions and tion) and that will become available cultivation practices than tion practices than - Recommendations by cultivation practices mat- during plant growth must be deter- fertilization fertilization state agency in ter, size of the field (5 ha mined via legally prescribed or sci- - Cultivation practices which - Cultivation prac- charge in old FO) does not entifically recognized examinations affect nutrient availability tices which affect - Tests at similar loca- Determination of N con- or orientation values approved by (e.g. tilling, irrigation) nutrient availability tions tent in soils, at least state agency in charge (e.g. tilling, irriga- - Recognized estima- yearly, at the time of fer- Results of regional field experi- §3 (2) tion) tion/calculation pro- tilization via ments can be used additionally Before the application of sig- cedure - Examination of rep- nificant amounts of nitrogen, Determination of N resentative samples the farmer has to determine content in soils for or, based on recogni- the nitrogen contents in the every schlag/cultivation by state agency soil for every schlag/cultivation unit, at least in charge: tion unit – except grassland – 160 yearly, at the time of - Use of results from at least yearly, at the time of fertilization via comparable locations fertilization via - Examination of - Calculation/estima- - Examination of repre- representative tion procedures sentative samples or, samples or, based on recognition by based on recog- agency: nition by agency: - Use of results from com- - Use of results parable locations from comparable - Calculation/estimation locations procedures - Calculation/estimation proce- Sampling and examination dures procedures must be in line Sampling/examina- with the guidelines by the tion must occur ac- state agency in charge cording to scientifically recognized methods § 4 (5) § 4 (1) §4 (5) § 4 (1) § 4 (1) Determination of N Application of organic Determination of N con- Application of organic and organic- Application of organic and or- content of organic and organic-synthetic fer- tent of organic fertilizer, synthetic fertilizers must only occur ganic-synthetic fertilizers fertilizer based on la- tilizers must only occur if digestate and secondary if the nitrogen content of the ferti- must only occur if the nitro- belling requirements, the nitrogen content of raw material fertilizer lizer has been determined before- gen content of the fertilizer scientifically recog- the fertilizer has been de- based on labelling re- hand, based on has been determined before- nized measuring termined beforehand, quirements, scientifically - legal labelling hand, based on methods or scientific based on recognized measuring - determination by the farm, - legal labelling estimation/calcula- - legal labelling methods or scientific esti- based on state law data - determination by the tion procedures rec- - determination by the mation/calculation proce- - scientifically recognized meas- farm, based on state law ognized by agency in farm, based on state dures recognized by urement methods conducted data charge law data agency in charge by or on behalf of the farm - scientifically recognized Deductible N losses - scientifically recog- Deductible N losses dur- measurement methods during fertilization: nized measurement ing fertilization: 20% (up conducted by or on be- 20% (up to the upper methods conducted to the upper thresholds half of the farm thresholds defined by by or on behalf of the defined by § 3 (7)) § 3 (7)) farm Nitrogen losses which need to be taken into account during fertilization

161

must be calculated according to annex 5. §5 (1 + 2) § 6 §5 (1 + 2) §5 (1+2+4) Environmental commit- §5 (1+2) Farms with > 10ha or Farmers must make a Farms with > 10ha or >1 Farmers must make an annual ni- tee asks the federal Farmers must make an an- >1 ha of certain crops farm-gate balance within ha of certain crops (vege- trogen balance for each schlag/cul- government to check nual nitrogen comparison as (vegetables, grapes, 6 months tables, grapes, strawber- tivation unit, based on indices in whether and in how far a flächenbilanz, or as a legal conditions for an strawberries, hop, to- Exempted: ries, hop, tobacco, annex (which also include values schlagbilanz (for each bacco, woods) need woods) need to make an- for special farm conditions) within obligation for farm-gate schlag/cultivation unit + ag- 1. Farms without graz- to make annual nitro- nual nitrogen compari- 6 months after the end of fertiliza- balances could be cre- gregation of schläge) until ing that do a schlag- gen comparisons sons tion year ated. 31st March of the year follow- based nutrient ac- ing the fertilization year Farms that generate counting Farms that generate less § 5 (3) based on indices in the annex less than 80 kg N 2. Farms with max. 8 ha than 80 kg N from their Exempt from the need to formulate (which also include values for from their own live- of land, without vege- own livestock or use less a nitrogen balance: stock or use less than than 40 kg N per year are special farm conditions) tables, hop, strawber- 1. Areas with ornamental plants 40 kg N per year are exempted Table with deductible losses ries, tree nurseries, and tree/vine nurseries, exempted in annex 2 ornamental plants, § 5 (3) 2. Pastoral land with max. 100 kg § 5 (3) fruit trees, tobacco, Nutrient comparison N/ha/a + no additional fertili- § 5 (3) Nutrient comparison max. 2 LU must include zation In case of special farm condi- must include - N input from fertilizers 3. Farms with < 8 ha cropland tions (fertilizers, crops, live- - N input from ferti- and Leguminosae excl. ornamental plants + stock etc.) or to prevent un- lizers and Legumi- - N removal via harvest/ tree/vine nurseries, max. 1 ha acceptable yield losses, farm- nosae sale of plant/animal vegetables, hop or strawber- ers may deduce additional - N removal via products ries, max. 500 kg N/ha/a from unpreventable losses or con- harvest/ sale of animal source organic fertilizer sider necessary additional in- plant/animal § 5 (4) 4. Farms that do not apply signifi- puts in accordance with the cant nutrient amounts on any state agency in charge products A saldo from the nutrient schlag comparison must be cal- § 5 (4)

culated Exempt from the need to for- Saldo = precondition for mulate a nitrogen balance: using nutrient comparison 1. Areas with ornamental for evaluation of nutrient plants, tree and vine nurse- situation of a farm (al- ries, fruit trees, fruit lands ready calculated by ma- and vineyard outside culti- jority of farms) vation, 2. Pastoral lands with less than 100 kg N/ha/a,

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3. Farms without significant nutrient inputs on any field. 4. Farms with no more than 500 kg N/a of organic fertilizes 5. Farms with < 10 ha agricultural land (land types named under 1 exempted) 6. Farms with max. 1 ha strawberries, vegetables or hop § 6 (1+2) § 7 Tightening of doc- § 6 (1+2) § 7 §7 (1) Farms have to docu- Farms without an exemp- umentation provi- Documentation provi- For every schlag/cultivation unit, Farms without an exemption ment results of exam- tion under § 6 have to sions contradict sions farms have to document under § 5 (4) have to docu- government’s st inations and calcula- document all cultivated Farms have to document - Within 1 months after fertiliza- ment until 31 March of the goal of cutting red tions regarding nutri- crops, incl. their share of results of examinations tion: Value of N input, excl. areas fertilization year tape (bureaucrati- ent content in soil the total farm surface and calculations and nu- with max. 0,5 ha of ornamental - nutrient content in soil zation), espe- and fertilizer and nu- Farms with such an ex- trient comparisons and plants, tree/vine nurseries, to- incl. procedure cially: fertilizer trient comparisons emption have to docu- keep them for at least 9 bacco + livestock grazing with - N content in fertilizer incl. need determina- and keep them for at ment the cultivated crops years max. 100 kg n/ha/a procedure to determine it tion per schlag least 9 years for every schlag/cultiva- - Within 6 months after the end of - data from nutrient com- causes a lot of tion unit fertilization year: Data about N parison work (FDP motion § 6 (3) All farms have to docu- removal, results of N compari- 06.05.2004) Farms with > 10 ha agri- ment the results of the sons, data + results of determi- § 7 (3) cultural land or > 1ha veg- determination of the nu- nation of N surplus (excl. for cer- etables, hop, vineyards, Documentation must be kept trient contents of organic Criticism: Govern- tain farms according to § 5 (1-3): strawberries, woods or for 7 years fertilizers ment draft im- special crops, pastoral lands plies excessive tobacco have to record Farms with > 8 ha have to documentation for every schlag/cultiva- § 7 (3) Documentation must be kept document the results of requirements tion unit of at least 1ha for 7 years fertilizer need determina- (CDU/CSU Bun- the fertilization actions tions and the date, type destag debate (type, quantity, date) and quantity of fertiliza- 27.05.2004) right after fertilization tion measures With the intro- Documentation must be duction of the kept for 7 years farm-gate balance, the need for schlag-based 163

Need for both farm-gate accounting for balance + schlag-based grassland should accounting (-> prevention be abolished to of over-fertilization of cer- avoid excessive tain fields, this does not bureaucracy, imply disproportionate since the pro- bureaucratization) vided information (Bündnis 90/Die Grünen are the same) government reply (CDU/CSU written 16.07.2004) interpellation 16.07.2004) § 7 § 9 § 7 § 10 Suggestions by individ- § 10 Non-compliance = Non-compliance = contra- Non-compliance = contra- Non-compliance = contravention ual bundesländer Non-compliance = contraven- contravention (non- vention (non-criminal of- vention (non-criminal of- (non-criminal offense) No (correct, timely, tion (non-criminal offense) criminal offense) fense) fense) Application on soil that is flooded, complete) documenta- Application on soil that is No prevention of nu- Application on soil that is No prevention of nutrient water-saturated, deeply frozen or tion (CDU/CSU+ FDP flooded, water-saturated, trient leaching into flooded, water-saturated, leaching into water covered with more than 5 cm of (BY + BW) motion deeply frozen or covered with 20.12.2005) water frozen at a depth of at Fertilization on water sat- snow more than 5 cm of snow Fertilization on water least 10 cm or covered urated, deeply frozen or Fertilization against requirements Fertilization against require- saturated, deeply fro- with more than 5 cm of strongly snow-covered for steep slopes ments for steep slopes snow zen or strongly snow- soil Application during blocking period No prevention of leaching covered soil Application of organic fer- Fertilization with liquid Application of > 170 kg N into water bodies No immediate work- tilizer at temperatures > manure at steep slope No immediate working of manure Application during blocking ing of liquid manure 30 °C (§2 (5) into soil on uncultivated land period into the soil No determination of ferti- No immediate working of No development of correct, timely Application of > 170 kg N Application of > 40 lization content liquid manure (incl. diges- and complete nutrient comparisons No development of correct, ammoniacal N or 80 Application during block- tate) into the soil according to requirements timely and complete nutrient kg N from organic fer- ing period Application of > 40 am- No presentation of nutrient com- comparisons according to re- tilizer after main crop Surpassing of permissible moniacal N or 80 kg N parison to state agency in charge quirements (§ 3 (3)) nitrogen surpluses from organic fertilizer af- No immediate working of ma- Application of >170 ter main crop (§ 3 (3)) No keeping of documentation re- No prevention of leaching nure into soil on uncultivated kg (N) (cropland) or sults for 7 years into water/verges Application of >170 kg (N) land >210 kg (grassland) (cropland) or >230 kg Exceedance of N surpluses No immediate working of No presentation of nutrient Application of organic (grassland, under certain Use of prohibited equipment urea nitrogen and ammo- comparison to state agency in fertilizer during block- conditions) niacal nitrogen into the No determination of fertilizer need charge ing period soil according to requirements No keeping of documentation Use of prohibited fertilizers results for 7 years 164

No examination of Application of > 170 kg or Application of organic fer- Use of prohibited equipment Use of prohibited equipment soil as required 210 kg N tilizer (incl. digestate) Use of prohibited fertilizers No determination of Use of prohibited equip- during blocking period N content of organic ment No examination of soil as fertilizer as required No documentation ac- required No (full, timely) docu- cording to § 7 No determination of N mentation or keeping content of organic ferti- of results for the re- lizer as required quired 9 years No (full, timely) documentation or keeping of results for the required 9 years § 8 Additional suggestion § 11 No transition period 3 m distance to water Transition period: Fertilizers bodies must not be may already be applied from kept until 1st January the 16th January onwards in 2010 if direct input of 2006 (= shorter blocking pe- fertilizers into water riod) bodies can be prevented (CDU (HH) motion 15.12.2005) § 9 § 9 § 9 The state agency that grants per- The state agency that The state agency that grants mits/ adopts other requirements grants permits/ adopts permits/ adopts other re- must consider soil fertility, health other requirements quirements must consider of humans, animal and nature (es- must consider soil fer- soil fertility, health of hu- pecially water quality) tility, health of humans, mans, animal and nature (es- animal and nature (especially water quality) and pecially water quality) other legal rules and other legal rules

Tab. 18: Drafts and Final Acts of the Fertilization Ordinance Adopted in 2017

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Fertilization Ordinance 2006 (DüV i. d. F. v. Government draft for a new FO published on 15th Febru- Recommendations for Fertilization Ordinance 2017 (DüV i. d. F. 26. Mai 2017) 10. Januar 2006) ary 2017 (BR-Drucks. 148/17) changes by the Bundesrat committees published on 17th March 2017 (BR- Drucks. 148/1/17) and recommendations for change by individual state governments Incl. explanations and comments by the environmental committee Comments by the environmental committee: Bundesrat welcomes FO draft, criticises that the draft has not been presented earlier, despite multiple requests, after the Bund-Länder working group had presented its evaluation report with concrete recommendations in 2012 Unclear whether the final compromise, which was also achieved due to massive pressure by the COM, will suffice to end the infringement procedure New regulations are insufficient for water and environmental protection Need for area-bound livestock farming across the country. For this purpose: Need to document and monitor all nutrient flows and reduce nutrient

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surpluses, especially from manure. Given the current regulatory deficiencies: Need to evaluate the effects of the new regulations for the environment on a regular basis. § 3 (4) § 3 (1) § 3 (1) Application quantity and timing shall en- Fertilization shall ensure balance between expected nutri- Fertilization shall ensure balance between expected nutrient sure as much as possible that nutrient be- ent need of the plants and nutrient supply from the soil need of the plants and nutrient supply from the soil and fer- come available for plants in a timely man- and fertilization, under consideration of the local condi- tilization, under consideration of the local conditions ner and in adequate quantities tions Fertilizer application quantity and timing shall ensure that Fertilizer application quantity and timing shall ensure that nutrient become available for plants in a timely manner and nutrient become available for plants in a timely manner in adequate quantities and that inputs into surface or and in adequate quantities and that inputs into surface or groundwater bodies are being prevented. Results of regional groundwater bodies are being prevented. Results of re- field trials shall be used for validation. Requirements to pre- gional field trials shall be used for validation. Require- serve local soil fertility shall be taken into consideration ments to preserve local soil fertility shall be taken into § 3 (3) consideration Exceedance of fertilizer need is only permissible if later oc- § 3 (3) curring circumstances e.g. regarding crop development and Exceedance of fertilizer need is only permissible if later oc- weather cause a higher fertilizer need. In this case, before curring circumstances e.g. regarding crop development fertilization, the farmer has to determine the fertilization of and weather cause a higher fertilizer need. In this case, be- the crop for each schlag/cultivation unit, under considera- fore fertilization, the farmer has to determine the fertilization of the provisions of § 4 and according to the recommen- tion of the crop for each schlag/cultivation unit, under dations by the state agency in charge consideration of the provisions of § 4 and according to the recommendations by the state agency in charge § 3 (1) § 3 (2) § 4 (1) § 3 (2) Before the application of significant Before application of significant amounts of fertilizers con- The fertilizer need of crops Before application of significant amounts of fertilizers con- amounts of fertilizers containing N, the fer- taining N, the fertilizer need of the crops has to be ade- not mentioned explicitly in taining N, the fertilizer need of the crops has to be ade- tilizer need of the crops has to be adequately determined based on the provisions of § 4 for this paragraph must also be quately determined based on the provisions of § 4 for each quately determined, under consideration each crop/cultivation unit (exemptions for farms and areas considered. The values by crop/cultivation unit (exemptions for farms and areas under of the requirements to preserve local soil under § 8 (6) (Special conditions for certain crops) the state agency in charge § 8 (6). (Special conditions for certain crops) fertility. A balance between expected nutri- § 4 (1) shall be used in this case. § 4 (1) ent need and supply must be guaranteed. Determination of N fertilizer need in the case of cropland Determination of N fertilizer need in the case of cropland as §3 (2) as a location-specific upper threshold based on the a location-specific upper threshold based on the following 167

Fertilization need of a crop must be calcu- following provisions and annex 4. Need to consider the fol- provisions and annex 4. Need to consider the following influ- lated before application for every lowing influence factors: ence factors: schlag/cultivation unit, under considera- - N need of crops based on annex 4(changes according to - N need of crops based on annex 4 (changes according to tion of the conditions to maintain soil fer- annex 4in case of deviations from expected yield) (special annex 4 in case of deviations from expected yield) (special tility, based on the following criteria: conditions for certain cultivations) conditions for certain cultivations) - Nutrient needs of plants, based on ex- - N content in the soil, determined according to § 3 (4) - N content in the soil, determined according to § 3 (4) pected yields and quality under local - N amounts from the soil that will become available dur- - N amounts from the soil that will become available during conditions and cultivation practices ing plant growth, based on local conditions, especially plant growth, based on local conditions, especially - Nutrient contents in soil that will be- weather and soil according to annex 4 weather and soil according to annex 4 come available during plant growth as a - N supplies from organic or organic synthetic fertilizers - N supplies from organic or organic synthetic fertilizers ap- result of the local conditions (e.g. cli- applied in the preceding year plied in the preceding year mate, soil characteristics) - N supplies from catch crops according to annex 4 - N supplies from catch crops according to annex 4 - Other soil conditions State agency in charge can authorize other methods to de- State agency in charge can authorize other methods to de- - Nutrient inputs from other cultivation termine the fertilizer need if this does not lead to a higher termine the fertilizer need if this does not lead to a higher practices than fertilization fertilizer need fertilizer need - Cultivation practices which affect nutri- § 4 (1) ent availability (e.g. tilling, irrigation) The fertilizer need of crops not mentioned explicitly in this Results of local field trials should be consid- paragraph must also be considered. The values by the state ered. agency in charge shall be used in this case. § 4 (2) § 4 (2) Determination of N fertilizer need in the case of grassland Determination of N fertilizer need in the case of grassland and multiple-cut feed crop as a location-specific upper and multiple-cut feed crop as a location-specific upper threshold based on the following provisions and annex 4 threshold based on the following provisions and annex 4 Need to consider the following influence factors: Need to consider the following influence factors: - N need according to annex 4 (adaptation in deviations - N need according to annex 4 (adaptation in deviations from expected yield + quality) from expected yield + quality) - N supplies from soil storage according to annex 4 - N supplies from soil storage according to annex 4 - N supplies from leguminosae according to annex 4 - N supplies from leguminosae according to annex 4 - N supplies from organic or synthetic-organic fertilizers - N supplies from organic or synthetic-organic fertilizers ap- applied in the previous years (10% of max. N) plied in the previous years (10% of max. N) § 3 (3) § 3 (4) § 3 (4) Before the application of significant Before the application of significant amounts of nitrogen, Before the application of significant amounts of nitrogen, amounts of nitrogen, the farmer has to de- the farmer has to determine the nitrogen contents in the the farmer has to determine the nitrogen contents in the soil termine the nitrogen contents in the soil soil for every schlag/cultivation unit – except grassland + for every schlag/cultivation unit – except grassland + multi- for every schlag/cultivation unit – except multiple-cut feed crop – at least yearly, at the time of ferti- ple-cut feed crop – at least yearly, at the time of fertilization grassland – at least yearly, at the time of lization via via fertilization via

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- Examination of representative samples - Examination of representative samples or, (except in - Examination of representative samples or, (except in case or, based on recognition by agency: case of certain vegetable cultivations) based on recom- of certain vegetable cultivations) based on recommenda- - Use of results from comparable loca- mendations by the state agency in charge tions by the state agency in charge tions - Use of results from comparable locations - Use of results from comparable locations - Scientific calculation/estimation proce- - Scientific calculation and estimation procedures - Scientific calculation and estimation procedures dures Sampling and examination procedures must be in line with Sampling and examination procedures must be in line with the guidelines by the state agency in charge the guidelines by the state agency in charge Sampling and examination procedures must be in line with the guidelines by the state agency in charge §3 (5) §5 (1) § 5 (1) §5 (1) No application of fertilizer on soil that is No application of fertilizer containing N on soil that is Exceptions: Up to 60 kg No application of fertilizer containing N on soil that is flooded, water-saturated, frozen or cov- flooded, frozen, water-saturated or covered with snow N/ha (or more, in case of flooded, frozen, water-saturated or covered with snow ered with more than 5 cm of snow (excep- Exceptions: Up to 60 kg N/ha (or more, in case of solid ma- solid manure from ungulate Exceptions: Up to 60 kg N/ha (or more, in case of solid mations are possible with a permit to avoid nure from ungulate and compost) may be applied on fro- and compost) may be ap- nure from ungulate and compost) may be applied on frozen soil compaction or improve the effective- zen soil if plied on frozen soil if the soil if ness of fertilizers) soil is covered with winter - the soil becomes capable of absorption because it melts - the soil becomes capable of absorption because it melts crops, catch crops or grass on the day of application on the day of application - there is no risk of leaching into surface water bodies or - there is no risk of leaching into surface water bodies or adjacent areas adjacent areas - the soil is covered with plants and - the soil is covered with plants and - there is a risk of soil compaction or structural damage - there is a risk of soil compaction or structural damage from machinery otherwise from machinery otherwise § 3 (5) § 3 (5) § 3 (5) N share to be calculated as utilized by the plants: N share to be calculated as N share to be calculated as utilized by the plants: - 100% in case of synthetic fertilizers utilized by the plants: - 100% in case of synthetic fertilizers - Values in annex 3 in case of organic or organic-syn- Values in annex 3 in case of - Values in annex 3 in case of organic or organic-synthetic thetic fertilizers (or, in case of missing fertilizer types, organic or organic-synthetic fertilizers, but at least N value determined under § 3 (4) based on recommendation by agency in charge) fertilizers, but at least N (or, in case of missing fertilizer types, based on recom- value determined under § 3 mendation by state agency in charge) Deductible losses during application of organic fertilizers (4) from animal source or digestate according to annex 2, in Deductible losses during application of organic fertilizers from animal source or digestate according to annex 2, in case of other organic or organic-synthetic fertilizers max. Losses should not be de- case of other organic or organic-synthetic fertilizers max. 10% of the N content determined under § 3 (4) ductible. 10% of the N content determined under § 3 (4) Amendment of government suggestions to prevent

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higher permissible N fertilization § 3 (6) § 5 (2) § 5 (2) § 5 (2) When applying fertilizer containing signifi- When applying fertilizer containing significant amounts of Within 5 m distance of sur- When applying fertilizer containing significant amounts of N. cant amounts of N, a direct input into sur- N, a direct input or leaching into surface water bodies and face water bodies, fertiliza- a direct input or leaching into surface water bodies and adja- face water bodies must be prevented via a adjacent areas, especially natural habitats worthy of pro- tion may only occur if cent areas, especially natural habitats worthy of protection, buffer zone of at least 3m (unless equip- tection, must be prevented equipment is used that must be prevented ment that allows precise fertilization is Within 4 m distance of surface water bodies, fertilization does not spread beyond Within 4 m distance of surface water bodies, fertilization used) may only occur if equipment is used that does not spread the cultivated area. may only occur if equipment is used that does not spread Nutrient leaching into surface water bodies beyond the cultivated area. beyond the cultivated area. must be prevented Fertilization is prohibited at 1m distance from surface wa- Fertilization is prohibited at 1m distance from surface water ter bodies. bodies. § 3 (7) § 5 (3) § 5 (3) § 5 (3) Restrictions for fertilization with N fertiliz- To prevent the leaching into surface water bodies, fertiliz- To prevent the leaching To prevent the leaching into surface water bodies, fertilizers ers (excl. solid manure other than poultry ers containing N must not be applied within in 5 m dis- into surface water bodies, containing N must not be applied within in 5 m distance to manure) on agricultural land with a steep tance to water bodies on land areas which have an aver- fertilizers containing N water bodies on land areas which have an average slope of slope: age slope of at least 10% (“Steep slope”) within a 20 m dis- must not be applied within at least 10% (“Steep slope”) within a 20 m distance to such 10% slope within 20 metres distance of a tance to such water bodies. in 5 m distance to water water bodies. water body: Additionally, fertilizers within a 5-20 m distance to water bodies on land areas which Additionally, fertilizers within a 5-20 m distance to water have an average slope of at No fertilization within 10 metres distance bodies on areas with such a steep slope must be immedi- bodies on areas with such a steep slope must be immedi- least 7,5% (“Steep slope”) of water body unless special precision ately worked into the soil on uncultivated cropland and on ately worked into the soil on uncultivated cropland and on within a 20 m distance to equipment is used cultivated cropland without sufficient crop cover/mulch. cultivated cropland without sufficient crop cover/mulch. such water bodies. Within 20 metres distance of water body . Additionally, fertilizers fertilizer must be immediately worked into within a 5-20 m distance to the soil on uncultivated cropland or on water bodies on agricul- cropland with underdeveloped catch crop, tural areas with such a on cultivated cropland without sufficient steep slope must be imme- crop development/mulch. diately worked into the soil on uncultivated cropland and on cultivated cropland without sufficient crop cover/mulch. § 3 (8) § 5 (4+5) § 5 (4+5) § 3 (6+7) are not applicable to water bod- § 5 (2+3) are not applicable to water bodies with an ex- § 5 (2+3) are not applicable to water bodies with an exemp- ies with an exemption under water law; no emption under water law; no effect on further reaching, tion under water law; no effect on further reaching, existing existing regulations regulations 170 effect on further reaching, existing regulations § 3 (10) § 11 § 11 Equipment for fertilization application Equipment for fertilizer application must correspond with Equipment for fertilizer application must correspond with must correspond with the generally recog- the generally recognized state of technology. Fertilization the generally recognized state of technology. Fertilization nized technological state of the art. with the equipment listed in annex 8 is prohibited (same with the equipment listed in annex 8 is prohibited (same List of equipment which is prohibited from equipment as in 2006 FO) equipment as in 2006 FO) 1st January 2010 onwards in annex 1. But: Equipment bought before 14th January 2006 may still be used until31st December 2015 § 4 (1) § 3 (4) § 3 (4) § 3 (4) Application of organic and organic-syn- Application of fertilizers must only occur if the nitrogen Application of organic ferti- Application of fertilizers must only occur if the nitrogen con- thetic fertilizers must only occur if the ni- content of the fertilizer has been determined beforehand, lizer from animal origin or tent of the fertilizer has been determined beforehand, based trogen content of the fertilizer has been based on digestate only if the nitro- on determined beforehand, based on - legal labelling gen content has been de- - legal labelling - legal labelling - determination by the farm, based on state law data termined beforehand on - determination by the farm, based on state law data - determination by the farm, based on - scientifically recognized measurement methods con- the basis of scientifically - scientifically recognized measurement methods con- state law data ducted by or on behalf of the farm recognized measurement ducted by or on behalf of the farm - scientifically recognized measurement Calculation of nitrogen content of organic manure from methods by or on behalf of Calculation of nitrogen content of organic manure from ani- methods conducted by or on behalf of animal origin or digestate: Values according to annex 1 +2. the farmer mal origin or digestate: Values according to annex 1 +2. the farm § 4 (2) § 6 (1) § 6 (1) Liquid fertilizer incl. poultry manure must Organic and organic synthetic fertilizers with significant Organic and organic synthetic fertilizers with significant be immediately worked into the soil on un- amounts of N must immediately (max. within 4 hours) amounts of N must immediately (max. within 4 hours) cultivated land worked into the soil of uncultivated land. Exemption for worked into the soil of uncultivated land. Exemption for solid manure from ungulate and hoofed clove animals, solid manure from ungulate and hoofed clove animals, com- compost and fertilizers with a dry matter content below post and fertilizers with a dry matter content below 2% 2% The 4-hour deadline may only be exceeded if unexpected The 4-hour deadline may only be exceeded if unexpected weather conditions after fertilization prevent the operation weather conditions after fertilization prevent the opera- on the land; fertilization must then occur as soon as possible tion on the land; fertilization must then occur as soon as possible § 6 (2) § 6 (2)

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From 1st February 2020, urea as fertilizer must be worked From 1st February 2020, urea as fertilizer must be worked into the soil immediately, or max. 4 within hours unless it into the soil within immediately, or max. 4 hours unless it has been added inhibitors has been added inhibitors § 6 (3) § 6 (3) § 6 (3) From 1st February 2020 (for cultivated cropland), or 1st Elimination of the word From 1st February 2020 (for cultivated cropland), or 1st Feb- February 2025 (for grassland and multiple-cut feed crop), “cultivated” because other- ruary 2025 (for grassland and multiple-cut feed crop), liquid liquid fertilizers with significant amounts of N must be ap- wise, high-emission tech- fertilizers with significant amounts of N must be applied in plied in stripes or worked immediately into the soil. niques would still be al- stripes or worked immediately into the soil. The state agency in charge may permit other procedures if lowed on uncultivated The state agency in charge may permit other procedures if they lead to similar ammonium emissions or if the proce- cropland they lead to similar ammonium emissions or if the procedures are not feasible due to special conditions of the farm dures are not feasible due to special conditions of the farm (as regards natural landscape and agricultural structures (as regards natural landscape and agricultural structures and and particularly for security reasons) particularly for security reasons) § 4 (3) § 6 (4) Suggestions by individual § 6 (4) Organic fertilizer (incl. mixes with synthetic Organic and organic-synthetic fertilizers may (regardless of bundesländer Organic and organic-synthetic fertilizers may (regardless of fertilizers) from animal origin may only be §§ 3+4) only be applied to the extent that the total §4 (3) §§ 3+4) only be applied to the extent that the total amount applied up to the following annual quanti- amount of applied N does not exceed 170kg/ha/a (average Organic fertilizer (incl. of applied N does not exceed 170kg/ha/a (average of the ag- ties of nitrogen (on farm average): 170 of the agricultural land) mixes with synthetic ferti- ricultural land) kg/ha Compost: Max. 510 kg N/ha over 3 years (average of agri- lizers) may only be applied Compost: Max. 510 kg N/ha over 3 years (average of agricul- Determination of N content in fertilizers cultural land) up to the following annual tural land) based on list in annex. Determination of applied N quantities in line with provi- quantities of nitrogen (on Determination of applied N quantities in line with provisions Need to partially consider nutrient inputs sions of § 3 (4), in case of organic fertilizer from own farm farm average): 170 kg/ha of § 3 (4), in case of organic fertilizer from own farm incl. N from livestock grazing (according to table incl. N from livestock grazing and digestate, at least ac- (SPD + Bündnis 90/Die Grü- from livestock grazing and digestate, at least according to in annex) cording to annexes I + II nen (NRW + SH) motion annexes I + II (Special conditions for certain livestock types and green- 17.04.2013) (Special conditions for certain livestock types and green- houses) houses) Exclusion of areas with an exemption under § 6 (5) from Exclusion of areas with an exemption under § 6 (5) from the the area average value area average value The German government sought – and suc- §6 (5) §6 (5) cessfully acquired – an EU permit to make Exemptions from the N threshold value of 170 kg N /ha/a Exemptions from the N threshold value of 170 kg N /ha/a ac- use of the derogation rule under the ND in the application of organic fertilizers from animal origin cording to the ND can be granted by the state agency in which allows up to 230 kg N/ha from or- according to the ND can be granted by the state agency in charge, following an application, if the COM and the BMEL ganic fertilizer from animal origin on inten- charge, following an application, if the COM and the BMEL grant an exemption and the conditions of the exemption sively used grassland (CDU/CSU govern- grant an exemption and the conditions of the exemption grant are being respected. ment reply 08.06.2012) grant are being respected. The state agency in charge has to take the goals of the water law into account. 172

The state agency in charge has to take the goals of the wa- The exemption must be applied for at the state agency in ter law into account. charge every year The exemption must be applied for at the state agency in charge every year §6 (6) §6 (6) In case of the application of organic or organic-synthetic In case of the application of organic or organic-synthetic fer- fertilizers, incl. digestate from biogas plant on cropland, on tilizers, incl. digestate from biogas plant on cropland, on multiple-cut feed crop or grassland, the state agency can cropland with perennial animal feed or grassland, the state grant exemptions from the threshold values of § 6 (4) agency can grant exemptions from the threshold values of § based on an application, if the COM and the BMRL allow 6 (4) based on an application, if the European Commission this. The COM determines the permissible amount and and the Federal Ministry of Agriculture allow this. The COM may adopt further provisions which the state agency in determines the permissible amount and may adopt further charge must respect. provisions which the state agency in charge must respect. § 6 (7) § 6 (7) In the case of an exemption under § 6 (6), the total In the case of an exemption under § 6 (6), the total amount amount of N from organic fertilizers must not exceed of N from organic fertilizers must not exceed 170kg/ha/a 170kg/ha/a (average of agricultural land of the farm) (average of agricultural land of the farm) §4 (4) §6 (8) §6 (8) No use of liquid organic fertilizers and No use of fertilizers with significant amounts of N No use of fertilizers with significant amounts of N poultry manure between - on cropland after the harvest of the main crop until 31st - on cropland after the harvest of the main crop until 31st 1st November and 31st January (cropland) January January 15th November and 31st January (grassland) - on grassland and cropland with perennial feed (in case - on grassland and cropland with perennial feed (in case of th st th st st (responsible agency can adopt extensions of sowing until 15 May) between 1 November and sowing until 15 May) between 1 November and 31 st or reductions, e.g. based on weather and 31 January January soil, and additional requirements) Blocking period for solid manure from clover hooved and Blocking period for solid manure from clover hooved and un- ungulate: 15th December – 15th January gulate: 15th December – 15th January

§ 6 (9) § 6 (9) §4 (5) Extended application periods for fertilizers with significant Extended application periods for fertilizers with significant After the harvest of the main crop, before amounts of N (up to N need of the plants) on cropland amounts of N (up to N need of the plants) on cropland with winter liquid fertilizers and poultry manure with certain crops: certain crops: may only be applied onto succeeding crops, planted in the same year, according §6 (10) §6 (10) to their nutritional needs and as compen- State agency in charge can change the beginning and end State agency in charge can change the beginning and end of satory fertilizer for straw remaining on the of the periods by up to 4 weeks the periods by up to 4 weeks field, and no more than 40 kg ammoniacal (but no extension of the overall period). (but no extension of the overall period). N or 80 kg N/ha In case of fertilizers with less than 2% dry content matter, In case of fertilizers with less than 2% dry content matter, the agency can grant exemptions (based on regional the agency can grant exemptions (based on regional 173

conditions, especially weather, plant growth, water and conditions, especially weather, plant growth, water and soil soil protection) protection) §5 § 8 (1) § 8 (1) Farmers must make an annual nitrogen The farmer must make an annual nitrogen comparison un- The farmer must make an annual nitrogen comparison for N comparison as a flächenbilanz, or as a til 31st March according to annex 5, which includes: until 31st March according to annex 5, which includes: schlagbilanz (for each schlag/cultivation a comparison of nutrient input and output for the entire a comparison of nutrient input and removal for the entire st unit + aggregation of schläge) until 31 agricultural area or an aggregation of the results of the agricultural area or a summary of the results of the compari- March of the year following the fertiliza- comparisons of each schlag/cultivation unit /an aggre- sons of each schlag/cultivation unit /an aggregated area in tion year based on indices in the annex gated area in line with § 3 (2) and summarize it in a contin- line with § 3 (2) and summarize it in a continuous multi-an- (which also include values for special farm uous multi-annual nutrient comparison according to annex nual nutrient comparison according to annex 6. conditions) 6. Table with deductible losses in annex 2 § 5 (2) § 8 (4) § 8 (4) Nitrogen inputs in case of organic fertilizers Determination of N content in organic fertilizer from ani- Determination of N content in organic fertilizer from animal must be determined based on data in an- mal origin and digestate at least according to annex 1 + 2. origin and digestate at least according to annex 1 + 2. nex 1 in the case of organic fertilizer from animal origin. § 5 (3) § 8 (5) § 8 (5) In case of special farm conditions (fertiliz- In case of special farm conditions (fertilizers, crops, live- In case of special farm conditions (fertilizers, crops, livestock ers, crops, livestock etc.) or to prevent un- stock etc.) or to prevent unacceptable yield losses, farmers etc.) or to prevent unacceptable yield losses, farmers may acceptable yield losses, farmers may de- may deduce additional unpreventable losses or consider deduce additional unpreventable losses or consider neces- duce additional unpreventable losses or necessary additional inputs in accordance with the state sary additional inputs in accordance with the state agency in consider necessary additional inputs in ac- agency in charge charge cordance with the state agency in charge Unpreventable N losses in the case of vegetables (except Unpreventable N losses in the case of vegetables (except certain types): 80 kg N/ha/a certain types): 80 kg N/ha/a § 5 (4) § 8 (6) § 8 (6) Exempt from the need to formulate a nitro- Exempt from the need to formulate a nitrogen balance: Exempt from the need to formulate a nitrogen balance: gen balance: 1. Areas with ornamental plants or Christmas tree cultiva- 5. Areas with ornamental plants or Christmas tree cultiva- 1. Areas with: tions, tree and vine nurseries, bush berries and tree tions, tree and vine nurseries, bush berries and tree fruits, Ornamental plants, tree and vine nurseries, fruits, permanent fruit lands and vineyards outside culti- permanent fruit lands and vineyards outside cultivation fruit trees, permanent fruit lands and vine- vation and areas which serve the cultivation of fast- and areas which serve the cultivation of fast-growing yard outside cultivation, growing wood for energy purposes, wood for energy purposes, 2. Pastoral lands with < 100 kg N/ha/a 6. Pastoral lands with < 100 kg N/ha/a 2. Pastoral lands with less than 100 kg 3. Farms without significant nutrient inputs on any field 7. Farms without significant nutrient inputs on any fiel N/ha/a, 4. Farms with < 15 ha agricultural land (excl. areas named 8. Farms with < 15 ha agricultural land (excl. areas named above), grow max. 2 ha of vegetables, hop, wine or above), grow max. 2 ha of vegetables, hop, wine or 174

3. Farms without significant nutrient inputs strawberries, have an annual nutrient output of max. strawberries, have an annual nutrient output of max. 750 on any field. 750 kg N and do not purchase and apply external or- kg N and do not purchase and apply external organic or 4. Farms with no more than 500 kg N/a of ganic or organic-synthetic fertilizers organic-synthetic fertilizers organic fertilizes 5. Farms with < 10 ha agricultural land (land types named under 1 exempted) 6. Farms with max. 1 ha strawberries, vegetables or hop § 8 (2) § 8 (2) Determination of nutrient removal of the cultivated crops Determination of nutrient removal of the cultivated crops based on annex 7 or else based on order by the state based on annex 7 or else based on order by the state agency agency in charge or on the basis of scientifically recognized in charge or on the basis of scientifically recognized exami- examination and measurement methods nation and measurement methods § 8 (3) § 8 (3) Specification of calculation requirements concerning the Specification of calculation requirements concerning the nu- nutrient removal from raw feed areas trient removal from raw feed areas Permissible add-on in the determined nutrient removal for Permissible add-on in the determined nutrient removal for not utilized feed: max. 15% for crop feed, max. 25% for not utilized feed: max. 15% for crop feed, max. 25% for grassland grassland

§6 (1) § 9 (1) § 9 (1) Nutrient comparison must be presented to The farmer has to present the nutrient comparison accord- The farmer has to present the nutrient comparison accord- state agency in charge upon request ing to § 8 (1) to the state agency in charge upon request ing to § 8 (1) to the state agency in charge upon request

§ 9 (2) § 9 (2) § 6 (2) The N value in the nutrient comparison should be as low as The N value in the nutrient comparison should be as low as Acceptable nitrogen balance (3-year aver- possible and should not exceed 60 kg N/ha/a in 2018- possible and should not exceed 60 kg N/ha/a in 2018-2020, age): 2020, and 50 kg N/ha/a thereafter and 50 kg N/ha/a thereafter 2006-2008: Max. 90 kg N/ha 2007-2009: Max. 80 kg N/ha 2008-2010: Max. 70 kg N/ha 2009-2011: Max. 60 kg N/ha

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§ 9 (4) § 9 (4) If the state agency in charge identifies an exceedance of If the state agency in charge identifies an exceedance of the the threshold values of § 9(2), it must require the farmer threshold values of § 9(2), it must require the farmer to at- to attend a fertilization consultation aimed at the meeting tend a fertilization consultation aimed at the meeting of the of the threshold values within the same year and prove threshold values within the same year and prove the attend- the attendance within 2 weeks. ance within 2 weeks. § 9 (5) § 9 (5) If the state agency in charge identifies an exceedance of If the state agency in charge identifies an exceedance of the the threshold values of § 9 (2) in the year after the fertili- threshold values of § 9 (2) in the year after the fertilization zation consultation, the farmer has to provide the fertilizer consultation, the farmer has to provide the fertilizer demand demand determination according to § 3 (2) and the nutri- determination according to § 3 (2) and the nutrient compari- ent comparison according to § 8 (1) to the state agency in son according to § 8 (1) to the state agency in charge for ver- charge for verification until 31st March. ification until 31st March. §7 (1) § 10 (1) § 10 (1) Farms without an exemption under § 5 (4) Before the application of significant amounts of fertilizers, Before the application of significant amounts of fertilizers, have to document until 31st March of the farmers must document: farmers must document: year following the fertilization year - the fertilizer need of plants incl. determination proce- - the fertilizer need of plants incl. determination proce- - nutrient content in soil incl. procedures dures dure - the N content in fertilizers incl. determination proce- - the N content in fertilizers incl. determination procedure - N content in fertilizer incl. procedure dure - the nutrient content soil incl. determination procedure to determine it - the nutrient content soil incl. determination procedure - data from nutrient comparison Exceedance of § 3 (3) incl. the reasons for the higher ferti- Exceedance of § 3 (3) incl. the reasons for the higher fertilizer need must be noted immediately. § 7 (3) lizer need must be noted immediately. Farmers have to document the results of the nutrient com- Documentation must be kept for 7 years Farmers have to document the results of the nutrient comparisons until 31st March after the fertilization year (except st parisons until 31 March after the fertilization year (except for areas and farms with an exemption under § 8 (6) for areas and farms with an exemption under § 8 (6) § 9 § 13 (1) § 13 (1) The state agency that grants permits/ The state agency that grants permits or adopts further re- The state agency that grants permits or adopts further re- adopts other requirements must consider quirements has to ensure no threats to soil fertility, hu- quirements has to ensure no threats to soil fertility, human soil fertility, health of humans, animal and man and animal health and nature, especially water qual- and animal health and nature, especially water quality and nature (especially water quality) and other ity and no contradictions with other legal provisions occur no contradictions with other legal provisions occur legal rules § 10 § 14 § 14 § 14 Contraventions Contraventions Contraventions

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Non-compliance = contravention (non-cri- (1) Penalty of max. 50.000 Euros (2) Penalty of max. 150.000 (1) Penalty of max. 50.000 Euros minal offense) 1. Exceedance of fertilizer need according to § 3 (3) Euros 1. Exceedance of fertilizer need according to § 3 (3) Application on soil that is flooded, water- 2. Fertilization without determination of N content of ferti- 1. Fertilization on flooded, 2. Fertilization without determination of N content of ferti- saturated, deeply frozen or covered with lizers, fertilization on flooded, water-saturated, frozen or water-saturated, frozen or lizers, no immediate working into the soil according § 6 (1), more than 5 cm of snow snow-covered soil, fertilization against requirements for snow-covered soil (except fertilization on flooded, water-saturated, frozen or snow- Fertilization against requirements for steep steep slopes, fertilization within 1 m buffer zone, use of according to exemptions covered soil, fertilization above fertilizer need, no preven- slopes prohibited equipment (not in line with state of technol- under § 5 (1), outside tion of nutrient input or leaching into water bodies, use of blocking periods. No prevention of leaching into water bod- ogy), application of > 170 kg N prohibited equipment (not in line with state of technology), ies 3. No prevention of direct input or leaching of N into water 2. No timely presentation fertilization above threshold values (170 kg N/ha) of proofs regarding storage Application during blocking period bodies 3. No prevention of direct input or leaching of N into water capacity according to § 12 bodies Application of > 170 kg N 4. No proper working into the soil according to § 6 (1) and 7 (2+3) 4. No proper working into the soil according to § 6 (1) and 7 No development of correct, timely and (3) Penalty of max. 10.000 (2+3) complete nutrient comparisons according 5. Application of fertilizer without urea inhibitor, no Euros to requirements (timely) working into the soil according to § 6 (2) 5. Application of fertilizer without urea inhibitor, no (timely) 1. No correct, complete and working into the soil according to § 6 (2) No immediate working of manure into soil 6. Fertilization against requirements for low-emission ap- timely documentation of on uncultivated land plication under § 6 (3) 6. Use of fertilization described under § 6 (3) nutrient flows according to 7. Utilization of substances prohibited under § 7 7. Utilization of substances prohibited under § 7 No presentation of nutrient comparison to § 10 (1/2) state agency in charge 8. No (timely) presentation of nutrient comparison, ferti- 8. No (timely) presentation of nutrient comparison, fertilizer 2. Documentation not kept lizer need determination or proof according to § 9 (1/5) or need determination or proof according to § 9 (1/5) or § 12 No keeping of documentation results for 7 for at least 7 years, no § 12 (6) (6) years (timely) presentation Use of prohibited equipment 9.Exceedance of nitrogen surplus after the state agency in 9. No insurance that threshold values for N application ac- charge has obliged the farmer to attend a mandatory con- cording to § 9 (2/3) are not exceeded Use of prohibited fertilizers sultation due to a previous exceedance of the nitrogen 10. Non-compliance with provisions under § 9 (4) regarding surplus mandatory consultation 10. Non-compliance with provisions under § 9 (4) regard- (2) Penalty of max. 150.000 Euros ing mandatory consultation 1. Fertilization on flooded, water-saturated, frozen or snow- covered soil (except according to exemptions under § 5 (1), (2) Penalty of max. 150.000 Euros outside blocking periods. 1. No correct, complete and timely documentation of nu- 2. No timely presentation of proofs regarding storage capac- trient flows according to § 10 (1/2) ity according to § 12 2. Documentation not kept for at least 7 years, no (timely) presentation (3) Penalty of max. 10.000 Euros 1. No correct, complete and timely documentation of nutrient flows according to § 10 (1/2)

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2. Documentation not kept for at least 7 years, no (timely) presentation

§ 12 (1) § 12 (1) The storage capacity of facilities for organic fertilizers must The storage capacity of facilities for organic fertilizers must be in line with the farm characteristics and goal of water be in line with the farm characteristics and goal of water protection. protection. The volume must be larger than the necessary capacity for The volume must be larger than the necessary capacity for the blocking period under § 6 (8+9) the blocking period under § 6 (8+9)

§ 12 (2) § 12 (2) Farms that produce liquid organic fertilizer and digestate Farms that produce liquid organic fertilizer and digestate must ensure that they can safely store the liquid fertilizer must ensure that they can safely store the liquid fertilizer for for a period of at least 6 months. a period of at least 6 months. Need to consider fertilizer produced in every stall unit ac- Need to consider fertilizer produced in every stall unit according to annex 9. cording to annex 9. Additionally: Need to consider sewage water and remain- Additionally: Need to consider sewage water and remaining ing quantities produced during storage that cannot be quantities produced during storage that cannot be pumped pumped off. off. Deductions can be made for animals that do not stand in Deductions can be made for animals that do not stand in the the stalls between 1st October and 1st April stalls between 1st October and 1st April § 12 (3) § 12 (3) Farms that generate liquid organic fertilizer or digestate Farms that generate liquid organic fertilizer or digestate and and have > 3 LU/ha and farms that do not possess enough have > 3 LU/ha and farms that do not possess enough land land to apply their organic fertilizer must ensure that they to apply their organic fertilizer must ensure that they can can store the generated liquid organic fertilizer and diges- store the generated liquid organic fertilizer and digestate for tate for at least 9 months from 1st January 2020. at least 9 months from 1st January 2020. § 12 (4) § 12 (4) Farms that generate solid manure or compost have to en- Farms that generate solid manure or compost have to ensure that they can store their fertilizers safely for at least 2 sure that they can store their fertilizers safely for at least 2 months by 1st January 2020. months by 1st January 2020. § 12 (5) § 12 (5) Farms that do not have enough the necessary storage fa- Farms that do not have enough the necessary storage facili- cilities required by § 12 (1-4) have to ensure via contract ties required by § 12 (1-4) have to ensure via contract with with third parties that their fertilizers can be stored and third parties that their fertilizers can be stored and utilized utilized externally externally 178

§ 12 (6) § 12 (6) Farmers have to prove via the suitable documents that Farmers have to prove via the suitable documents that they they fulfil the obligations under § 12 (2-5) upon request by fulfil the obligations under § 12 (2-5) upon request by the the state agency in charge. state agency in charge. § 13 (2) § 13 (2) § 13 (2) Authorization of the state governments to adopt deviating Authorization of the state Authorization of the state governments to adopt deviating ordinances to protect water bodies from contamination governments to adopt devi- ordinances to protect water bodies from contamination with with N in ating ordinances to protect N or phosphate in 1. Areas with > 37,5 mg nitrate /l and an increasing nitrate water bodies from contami- 1. Areas with ground water bodies in poor chemical state concentration or with > 50 mg nitrate/l nation with in according to the groundwater ordinance, due to an ex- 2. Areas in the drainage basin or part of the drainage basin 1. Areas with ground water ceedance of the permissible thresholds for nitrate, areas of a slowly running stream of water or lake which is af- bodies in poor chemical with groundwater bodies whose nitrate concentrations fected by eutrophication from agricultural nutrient inputs, state according to the are increasing and are reaching at least ¾ of the permissi- especially from phosphorus groundwater ordinance, ble nitrate threshold or partial areas with more than 50 due to an exceedance of mg nitrate/l in water bodies in good chemical state the permissible thresh- 2. Areas in the drainage basin or part of the drainage basin olds for nitrate, areas of a slowly running stream of water or lake which is af- with groundwater bodies fected by eutrophication from agricultural nutrient in- whose nitrate concentra- puts, especially from phosphorus tions are increasing and are reaching at least ¾ of the permissible nitrate threshold or partial areas with more than 50 mg nitrate/l in water bodies in good chemical state Rationale: Bring provisions in line with WFD and thereby reduce the need of additional monitoring (-> no additional administrative work, ensure legal uniformity and security)

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§ 13 (2) § 13 (2) § 13 (2) State governments can exempt areas of a groundwater State governments can also State governments can exempt areas of a groundwater body body with < 37,5 mg N/l and no increasing nitrate concen- regulate requirements for with > 37,5 mg n/l and an increasing nitrate concentration or tration or < 50 mg nitrate/l from the deviating provisions farms whose areas are not > 50 mg nitrate/l from the deviating provisions under § 12 under § 12 (1). completely covered by the (1) if at least three of the following requirements are being State governments that adopt deviating provisions to en- FO in case of provisions un- met: sure the 50 mg threshold is met or to reverse a trend of in- der § 13 (1-4) that refer to 1. exceedance of fertilizer need due to changing circum- creasing nitrate concentrations in case of > 37,5 mg N/l the entire farm stances after the fertilizer need determination by max. 10% should formulate at least three of the following require- Cancellation of the follow- (unlike § 3 (3)) ments: ing provisions (which 2. application of organic or organic-synthetic fertilizers only 1. exceedance of fertilizer need due to changing circum- should apply to all farms, if the N content has been determined by scientifically recog- stances after the fertilizer need determination by max. see § 3 (4)): nized methods by or on behalf of the farmer beforehand 10% (unlike § 3 (3)) application of organic or or- (unlike § 3 (4) 4. Annual determination of N content in soil for every schlag 2. application of organic or organic-synthetic fertilizers ganic-synthetic fertilizers or cultivation unit (except grassland or multiple-cut feed only if the N content has been determined by scientifically only if the N content has cropland) based on examination of representative samples recognized methods by or on behalf of the farmer before- been determined by scien- (unlike § 4 (4)) hand (unlike § 3 (4) tifically recognized methods by or on behalf of the 5. 5 m distance to water bodies during fertilization (unlike §5 4. Annual determination of N content in soil for every farmer beforehand (unlike (2), 10 m in case of steep slope (unlike § 5 (3) and fertiliza- schlag or cultivation unit (except grassland or multiple-cut § 3 (4)) tion in line with § 5 (3) within a 10-20m distance feed cropland) based on examination of representative samples (unlike § 4 (4)) 6. Organic and organic-synthetic fertilizers with substantial N content must be immediately, max. within 1 hour, worked 5. 5 m distance to water bodies during fertilization (unlike Additional possible require- into the soil on uncultivated land (unlike § 6 (1)) §5 (2), 10 m in case of steep slope (unlike § 5 (3) and ferti- ments: lization in line with § 5 (3) within a 10-20m distance 1a. application of fertilizer 8. No fertilization with fertilizers containing significant amounts of N between 15th October and 31st January (unlike 6. Organic and organic-synthetic fertilizers with substantial up to 90% of fertilizer need § 6 (8)) N content must be immediately, max. within 1 hour, determined according to § worked into the soil on uncultivated land (unlike § 6 (1)) 4 (unlike § 3 (3)) 9. No application of solid manure from cloven hooved animals and ungulate or compost between 15th November and 8. No fertilization with fertilizers containing significant 6a: reduction of permissible 31st January (extension by max. 4 weeks based on weather, amounts of N between 15th October and 31st January (un- maximum amount of N fer- soil and local conditions (unlike § 6 (8)) like § 6 (8)) tilization from organic and organic-synthetic fertilizers: 10. Application of fertilizers containing significant amounts 9. No application of solid manure from cloven hooved ani- 120 kg/ average farm land of N only until 1st November on cultivations named under § mals and ungulate or compost between 15th November 6 (9) (unlike § 6 (9)) and 31st January (extension by max. 4 weeks based on 8. Blocking period can be weather, soil and local conditions (unlike § 6 (8)) extended by max. 2 weeks 11. Exemption from requirements under § 3 (2), § 8(1) and § based on soil climate and 10 (1) only for farms with < 10 ha agriculturally used land 10. Application of fertilizers containing significant amounts local conditions excl. areas under § 8 (6), with max. 1 ha of vegetables, hop, of N only until 1st November on cultivations named under wine or strawberries, an annual nutrient generation from or- § 6 (9) (unlike § 6 (9)) ganic fertilizer from animal origin of max. 500 kg N/farm, no 180

11, Exemption from requirements under § 3 (2), § 8(1) and Additional comments by reception and application of externally generated organic or § 10 (1) only for farms with < 10 ha agriculturally used land the environmental commit- organic-synthetic fertilizers incl. digestate (unlike § 8 (6), § 3 excl. areas under § 8 (6), with max. 1 ha of vegetables, tee: (2) and § 10 (1)) hop, wine or strawberries, an annual nutrient generation These special requirements 12. No exceedance of 50 mg N/ha/a in 2018-2020, 40 kg from organic fertilizer from animal origin of max. 500 kg should be adopted uni- N/ha/a thereafter (unlike § 9 (2)) N/farm, no reception and application of externally gener- formly across the country, 13. Storage capacity must be sufficient for liquid manure and ated organic or organic-synthetic fertilizers incl. digestate and not only voluntarily in digestate produced over the course of 7 months (unlike § 12 (unlike § 8 (6), § 3 (2) and § 10 (1)) individual bundesländer (2)) 12. No exceedance of 50 mg N/ha/a in 2018-2020, 40 kg 14. Storage capacity must be sufficient for solid manure and N/ha/a thereafter (unlike § 9 (2)) compost produced over the course of 4 months (unlike § 12 13. Storage capacity must be sufficient for liquid manure (4)) and digestate produced over the course of 7 months (unlike § 12 (2)) State governments can also regulate requirements for farms 14. Storage capacity must be sufficient for solid manure whose areas are not completely covered by the FO in case of and compost produced over the course of 4 months (un- provisions under § 13 (1-4) that refer to the entire farm like § 12 (4))

§ 13 (3) § 13 (3) Deviating provisions adopted by the state governments do Deviating provisions adopted by the state governments do not apply to farms that can prove vis-à-vis the state agency not apply to farms that can prove vis-à-vis the state agency in charge that their annual farm-based nutrient compari- in charge that their annual farm-based nutrient comparison son according to § 8 (1) does not exceed 35 kg N/ha/ha according to § 8 (1) does not exceed 35 kg N/ha/ha (average (average of the last 3 years) – in this case, the general proof the last 3 years) – in this case, the general provisions of visions of the FO apply the FO apply § 12 (5) § 12 (5) The state governments can exempt farms from the re- The state governments can exempt farms from the require- quirements under § 3 (2), § 8 (1) and 10 (1) in areas other ments under § 3 (2), § 8 (1) and 10 (1) in areas other than than those named in § 12 (2), namely: farms with < 30 ha those name in § 12 (2), namely: farms with < 30 ha agricul- agriculturally used land excl. areas under § 8 (6), max. 3 ha turally used land excl. areas under § 8 (6), max. 3 ha vegeta- vegetables, hop, wine or strawberries, an annual nutrient bles, hop, wine or strawberries, an annual nutrient genera- generation of organic fertilizer from animal origin of max. tion of organic fertilizer from animal origin of max. 110 kg

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110 kg N/ha or no reception and application of external or- N/ha or no reception and application of external organic or ganic or organic synthetic fertilizer incl. digestate organic synthetic fertilizer incl. digestate The state governments can permit cattle rearing farms The state governments can permit cattle rearing farms with with sufficient grassland for the suitable application of liq- sufficient grassland for the suitable application of liquid ma- uid manure generated on the farm to have sufficient ca- nure generated on the farm to have sufficient capacity for pacity for only 6 (rather than 9) months of safe storage only 6 (rather than 9) months of safe storage (unlike § 12 (unlike § 12 (3)) (3)) § 13 (6) § 13 (6) § 13 (6) The state governments are being authorized to adopt rules The state governments are The state governments are being authorized to adopt rules on being authorized to adopt on 1. the presentation/ information obligations regarding the rules on 1. the presentation/information obligations regarding the nutrient comparisons and the records if this is necessary 2. the obligation of farmers nutrient comparisons and the documentation if this is to surveil the compliance with the fertilization require- to aggregate the deter- necessary to surveil the compliance with the fertilization ments and mined fertilizer need per requirements and 2. the obligation of farmers to aggregate the determined schlag/cultivation unit to a 2. the obligation of farmers to aggregate the determined fertilizer need per schlag/cultivation unit to a farm-level farm-level fertilizer need fertilizer need per schlag/cultivation unit to a farm-level fertilizer need and to document this farm-level fertilizer and to document and com- fertilizer need and to document and comply with this need ply with this farm-level fer- farm-level fertilizer need tilizer need § 11 § 15 § 15 Transition period: Fertilizers may already Transition provisions for multi-annual nutrient compari- Transition provisions for multi-annual nutrient comparisons be applied from the 16th January onwards sons and calculation of nutrient surplus and calculation of nutrient surplus until June 2017 in 2006 (= shorter blocking period) Annex 4 Table 4 in annex 4 adjusted according to Bundesrat recom- Minor adjustment of table mendations 4 with figures regarding fertilizer need of plants

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Tab. 19: Policy Positions of the Individual Political Parties and the European Commission concerning Specific Regulations of the New Fertilization Ordinance which was Adopted in 201723

Topic FDP CDU/CSU SPD Bündnis 90/Die Grünen DIE LINKE EU COM The EU COM makes demands beyond the recommendations of the BLAG (DIE LINKE minor interpellation 19.12.2013 Good ag- Need to define need-ori- Need to specify good fertilization ricultural ented, locally adequate fer- practice: fertilization type, quan- practice tilization (motion tity and timing according to the 27.06.2012) needs of plants and soil, prevent Need to define and enable hazards to nature (Motion precise, need-oriented fer- 07.05.2014) tilization according to the local conditions (Bundestag debate 08.05.2014)

Deroga- Pro extension because of Derogation rule should be Derogation rule should be ended Derogation rule should be termi- tion rule high fertilizer need of farms terminated (Bundestag de- (Motion 07.05.2014) nated (SPD Bundestag debate with intensive grassland bate 13.12.2012) 13.12.2012) (Bundestag debate Derogation farms must be 16.01.2013 + 08.05.2014 + subject to monitoring (Mo- 13.12.2012) tion 27.06.2012) Derogation farms already subject to comprehensive monitoring + strict control > No need for tightening (Bundestag debate 13.12.2012 + 16.01.2013)

23 Less information about the policy positions of the individual parties was available for the earlier reform processes, which is why no separate tables for these policy-making rounds were designed. All relevant information was instead incorporated into the tables 16-18. 183

Extension because of higher nutrient need of plants in the concerned areas (Government reply 09. 04. 2008) Distance No fertilization within 5 m No fertilization within 5 m buffer to water buffer zone (Bundestag de- zone (Motion 07.05.2014) bodies bate 08.05.2014) Leaching of N-rich fertilizers into Regulations about distances shall be further developed surface water bodies and onto and maybe tightened (Government reply 21.01.2014) adjacent areas must be prevented (Motion 07.05.2014) Provisions for the fertilization near surface water bodies (instead of “running water bodies”) (Minor interpellation 06.07.2016) Fertilizer Need for greater specifica- Precise fertilizer need de- need de- tion (Bundestag debate termination based on local termina- 13.12.2012) conditions and scientifically tion recognized methods with minimum standards for documentation and fertilizer planning + fertilization (Motion 06.05.2014) Applica- Need for greater specifica- Need for extension (Bun- Blocking period should begin af- Prohibition of solid manure in winter tion/blo- tion (Bundestag debate destag debate 08.05.2014) ter the harvest of the main crop, (against demands by organic farming cking pe- 13.12.2012) without transition period (Motion associations) (CDU/CSU oral interpel- riods 07.05.2014) lation 25.02.2015) Blocking periods shall be changed in the new FO (Govern- ment reply 21.01.2014) Blocking period should not apply to solid manure from ungulate and cloven hoof animals (Minor interpellation 06.07.2016) Pro uniform blocking periods across the EU (Bundestag debate 08.05.2014) Against tightening of provisions for livestock grazing (solid manure + compost) (Bundestag debate 25.02.2016)

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Applica- Greens want unpracticable Still possible in some länder Tightening of provisions regard- Check possibilities for fund- No fertilization on melting soil tion tech- application techniques to work manure into the ing fertilizer application tech- ing of emission-reducing (Bündnis 90/Die Grünen oral inter- nique + (Bundestag debate soil within 4 hours – need niques and working into the soil techniques (Motion pellation 25.02.2015) technolo- 08.05.2014) for tightening (Bundestag of organic fertilizers (Motion 06.05.2014) Need for better control of manure gies Need to improve technolo- debate 16.02.2017) 07.05.2014 + environmental application (tightening of documen- gies for fertilizer application committee report 15.02.2017) tation requirements is not sufficient) and working into the soil Fertilizer should be worked into (SPD Bundestag debate 13.12.2012) (Bundestag debate the soil within 1 hour 13.12.2012) Need to define transition period Low-emission technologies for application technology are expensive and ineffec- Align provisions with other EU tive to reduce ammonia countries with high livestock den- emissions (ex. NL) (Bundes- sity tag debate 16.01.2017) Investment support for farms After a transition period, only low-emission technologies (Motion 07.05.2014) for fertilizer application will be allowed Need for further technical re- (Government reply 21.01.2014) quirements to prevent gaseous N losses during application (Bun- destag debate 13.12.2012) Upper Upper limit Check whether digestate Need to include digestate Upper limit of max. 170 kg Upper limit should apply to Upper limit should apply to all or- limits for should apply to from plant origin should be from biogas plants N/ha/a should apply to all or- all organic fertilizers (Mo- ganic fertilizers (CDU/CSU Bundestag nitrogen all organic ferti- included (Bundestag debate (Motion 27.06.2012) ganic fertilizers (Motion tion 06.05.2014) debate 13.12.2012) from or- lizers, including 13.12.2012) Upper limit should apply to 07.05.2014; Bundestag debate ganic fer- digestate (Bun- all organic fertilizers (Bun- 08.05.2014; minor interpellation tilizer ap- destag debate 06.07.2016) destag debate 13.12.2012 + plication 16.01.2013 + 15.01.2015) 13.12.2012) Plans to include digestate in new upper limit in Upper limit for N should apply to all organic fertilizers (SPD + the new FO (Government reply 05.06.2013) Bündnis 90/Die Grünen (NRW + SH) motion 16.04.2013)

Permissi- 2018 deadline for 50 kg is 50 kg N/ha/a (Motion 27. 50 kg N/ha (Bundestag debate It does not make sense to Länder should be authorized to adopt ble nitro- ambitious enough (Bundes- 06. 2012, Bundestag debate 13.12.2012; motion 07.05.2014; reduce the permissible ni- lower permissible nitrogen surpluses gen sur- tag debate 25.02.2015) 25.02.2016 + 08.05.2014) Bundestag debate 08.05.2014) – trogen surplus further as (40 kg N/ha/a instead of 50 kg) plus before 2018 (Oral interpellation long as not even the 80 kg (Bündnis 90/Die Grünen motion Reduction of nitrogen surpluses in the FO amendment is 25.02.2015) threshold is being complied 06.07.2016) being checked (Government reply 21.01.2014) with (Bundestag debate Need for drastic reduction, step by step towards 30 kg on 13.12.2012) 185

multiannual average (Environ- mental committee report 15.02.2017)

Länder should be authorized to adopt lower permissible nitrogen surpluses (40 kg N/ha/a) (Minor interpellation 06.07.2016) Nutrient Pro farm-gate Nutrient comparison might Pro farm-gate balance Pro farm-gate balance (Bundes- Doubtful whether the farm- account- balance (Bun- be more suitable than (Bundestag debate tag debate 13.12.2012 + gate balance will lead to ing (Farm- destag debate farm-gate balance (Bundes- 13.12.2012 + 25.02.2016; 07.05.2014 + (RLP) Bundesrat de- more efficient fertilization gate bal- 13.12.2012) tag debate 25.02.2016) motion 27.06.2012; report bate 29.01.2016) (at least in the (Bundestag debate ance/ Farm gate balance = unac- 15.02.2017) red areas with high livestock den- 13.12.2012) Substance ceptable burden for small The application of digestate sity (Motion 06.07.2016; Bundes- Digestate must already be flow bal- farms -> acceleration of from biogas plants must be tag debate 25.02.2016)) -> hon- included in area-based ni- ance) structural change (Bundes- included in the nitrogen est nutrient accounting (Environ- trogen balance (Bundestag tag debate 09.09.2016) balance (Motion mental committee report debate 13.12.2012) 15.02.2017) Farm-gate balance is diffi- 27.06.2012; Bundestag de- Pro farm-gate balance (Mo- cult to realize + enforce bate 08.05.2014)) New FL: Mandatory farm-gate tion 06.05.2014; Bundestag (Bundestag debate Farm-gate balance must in- balance includes too few farms debate 25.02.2016; Bun- 16.01.2017) clude all relevant nutrient until 2023 (Environmental com- destag debate 16.02.2017) mittee report 15.02.2017) (only > Bureaucratic work caused flows, incl. from digestate 2,5 LU until 2023 -> only 6,7% of by farm-gate balance must and animal feed (Bundestag farms). We need the substance Unsatisfactory that many be minimized (Environmen- debate 08.05.2014) flow (aka farm-gate) balance for farms only have to adopt tal committee report all farms with > 50 LU and 20 ha new rules from 2023 15.02.2017)

186

Farm-gate is not specific enough for fertiliza- From 2023 onwards: farm- land (Bundestag debate onwards (Bundestag de- tion, not useful for livestock farms in particular gate balance obligation for 16.02.2017) bate 16.02.2017) (Government reply 21.01.2014) farms with > 20 ha agricul- All farms except very small ones tural land or > 50 LU should be obliged to do a farm- = good date (Bundestag de- gate balance (Bundestag debate bate 16.02.2017) 16.02.2017)

Need for free EDV tools for Need for easily operationable, Need for publicly funded, farmers for fertilizer de- free and nationally uniform EDV nationally uniform online mand determination (Bun- tool for farm-gate balance ac- data bank for farm-gate destag debate 08.05.2014) counting, fertilizer need determi- balance accounting (Motion + farm-gate balance (Bun- nation and fertilization planning 06.05.2014) destag debate 25.02.2016) (Motion 07.05.2014) Goal: Reduce use of syn- Exaggerated accounting re- Deductible values for livestock thetic fertilizers (must be quirements for dairy farms grazing: 40-70% instead of 25% imported, produced under with livestock grazing be- i.e. reverse tightening (Minor in- environmentally detri- cause these do not cause terpellation 06.07.2016) mental conditions by very over-fertilization Good that disadvantage of live- few companies), ideally re- (Nds). Bundesrat debate stock grazing and solid manure, place it completely with or- 29.01.2016) both of which are environmen- ganic fertilizer But: Nutrient Good that it could be pre- tally beneficial, could be pre- content not so clear, not vented that livestock graz- vented (Environmental commit- 100% available, but cur- ing and stables with straw tee report 15.02.2017) rently accounted this way - were not categorized as Storage losses at farms with an > Current accounting rules polluting (as originally in- emission-related permit must no discourage cropland farm- tended) (Bundestag debate longer be deducted from nitro- ers from using organic ferti- 16.02.2017) gen balance (Motion 07.05.2014) lizer (particularly problematic for organic farms). No

187

EU demand -> Need for le- 25% nutrient losses in feed 25% nutrient losses in feed is ex- gal change (Bundestag de- is exaggerated (Bundestag aggerated – 10% as a possible al- bate 28.06.2018) debate 16.02.2017) ternative (Bundestag debate 16.01.2017) Need for data protection New accounting system Need for unambiguous data Approval of facilitated data provisions (Bundestag de- prevents data massaging (16.01.2017) exchange between agen- bate 25.02.2016 + (problem beforehand), re- cies (Bundestag debate 29.01.2016; Bundestag de- duces bureaucracy (Bun- 16.02.2017) Need for better data access + bate 16.01.2017)) destag debate 16.02.2017) control to monitor manure appli- Pro better data exchange Good: FL improves data ac- cation + livestock density (Bun- (Bundestag debate cess-> More effective and desrat debate 08.05.2015; Bun- 25.02.2016) efficient controls destag debate 25.02.2016; minor Data transfer in new fertili- (RLP 29.01.2016; Bundestag interpellation 06.07.2016; envi- zation law strengthens en- debate 16.02.2017; Bun- ronmental committee report forcement (Bundestag de- destag debate 25.02.2016) 15.02.2017)) bate 16.02.2017) Pro better data access (Motion 15.02.2017) Consulta- Importance of Importance of consultation Educational and consulta- Mandatory consultation if the nu- Need to intensify consultation consultation in “problem cases” (Bun- tion programmes should be trient surplus is exceeded. tion and education pro- (promote preci- destag debate 13.12.2012) intensified to put the tech- Repeated/high exceedance -> Ad- grammes to optimize farm sion farming) Mandatory, paid consulta- nological state of the art ministrative provisions, non-com- nutrient management and (Bundestag de- tion + threat of fine (Green more quickly into practice pliance with these or the consul- reduce fertilizer losses (Mo- bate suggestion) = illegitimate and the farm-level nutrient tation obligation = contravention tion 06.05.2014) 16.01.2013) universal suspicion against management should be im- (Motion 07.05.2014) Mandatory consultation if farmers who are well proved (Motion the nutrient surplus is ex- trained and should not be 27.06.2012; Bundestag de- ceeded (Motion advised by people with few bate 08.05.2014) 06.05.2014) competencies (Bundestag Paid consultation in case of debate 08.05.2014) non-compliance (Bundestag debate 08.05.2014) Sanctions Sanctions in Sanctions are sufficient Need for effective sanctions Good: Increase of possible penal- Need for effective sanctions case of exceed- (Bundestag debate (Motion 27.06.2012, Bun- ties from 50.000 to 200.000 Eu- (Motion 06.05.2014) ance of permis- 13.12.2012) destag debate 08.05.2014, ros in new FO draft (25.02.2016) sible nitrogen No need for stricter con- Bundestag debate Pro additional sanctions (Bundes- surplus are suf- trols and sanctions: Both 25.02.2016) tag debate 28.10.2010) ficient (non- exists already (cross compli- criminal ance regime enforced by 188

offenses) (Gov- the länder + additional län- Penalties should be ex- ernment reply der controls which sanction panded substantially (RLP 12.04.2011) violations of FO as legal 29.01.2016) contravention (Bundestag debate 13.12.2012)

Controls Stricter controls No need for stricter con- Need for resolute monitor- Need for effective and efficient Need for better controls = responsibility trols and sanctions: Both ing of compliance with FO controls (Motion 07.05.2014) (Motion 06.05.2014) of the länder exists already (cross compli- (Motion 27.06.2012, Bun- (Bundestag de- ance regime enforced by destag debate 25.02.2016) bate the länder + additional län- New FL = better enforce- 16.01.2013) der controls which sanction ment (Penalties are not be- violations of FO as legal ing imposed due to lack of contravention (Bundestag evidence – now better con- debate 13.12.2012) trol) (Bundestag debate 16.02.2017) Storage Requirements for min. stor- Extend min. storage capac- Extend storage capacity (Bundes- capacity age capacity (e.g. of 9 ity, consider financial sup- tag debate 13.12.2012) for or- months, as demanded by port for farmers for con- Adjust min. storage capacity for ganic fer- the Greens) = significant struction of storage facili- liquid organic fertilizer to tilizer burden for small farms -> ties (Bundestag debate changed blocking period. acceleration of structural 08.05.2014) 9 months for commercial farms change (Bundestag debate Need to include digestate without sufficient land for appli- 08.05.2014, Bundestag de- in regulations for storage cation of their organic fertilizers bate 09.09.2016) capacity (RLP 29.01.2016) (Motion 07.05.2014)

Need to check necessity of min. Requirements for storage capacity should also relate to di- storage capacity for poultry ma- gestate from biogas production (Environmental committee nure report 15.02.2017)

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Regionali- Stricter measures in regions with high nitrate Länder welcome designa- Länder should be authorized to Länder should be authorized to adopt zation contamination and lighter measures for re- tion of “risk areas” with adopt additional, stricter additional, stricter measures for “red gions with low nitrate contamination (länder tightened policies measures measures for “red areas” areas” (Bündnis 90/Die Grünen mo- authorization) (Government reply 17.04.2015) + easements for low-risk ar- (Minor interpellation 06.07.2016) tion 06.07.2016) eas. Additionally: Demand Länder should be authorized to Länder should be authorized to also for state authorization re- also take additional measures on take additional measures on the basis garding organic fertilizer the basis of the trophic soil condi- of the trophic soil conditions, need to trade (RLP Bundesrat de- tions, need to include eutrophica- include eutrophication criteria § 13 bate 29.01.2016) tion criteria in § 13 FO (Motion FO (Notification (Notifizierung Some of the additional 06.07.2016) 2015/0714/D – C20A) (Bündnis measures which länder can 90/Die Grünen motion 06.07.2016) Good that länder are now author- now implement in “red ar- ized to adopt stricter regulations eas” should have been im- in “red areas” (15.02.2017) plemented across the country (Nds. Bundesrat debate Upper limits for N in red areas 31.03.2017) must be drastically reduced (Envi- ronmental committee report 15.02.2017)

Need for regional concepts for the few problem re-

gions (Agricultural committee report 17.04.2013)

Exemp- Farmers that do Cancellation of liberation of tions not contribute farms from additional require- to the problem ments in case of 35 kg N/ha/a or should not be at least consideration of local burdened (Bun- contamination (06.07.2016) destag debate Good that plans to classify live- 28.06.2018) stock grazing and husbandry with straw as polluting were stopped (Bundestag debate 16.02.2017)

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Testimony

I herewith declare that I have written this paper on my own and that I have not used any other sources and materials than those indicated. I properly cited the materials I have relied upon. I have not submitted this document as a master thesis elsewhere.

Münster, 30.04.2020

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