OREANDA-NEWS. March 21, 2016.

Why is there a need for a revised Fertilisers Regulation?

The reuse of raw materials that are now disposed as waste is one of the key principles of the Circular Economy Package adopted in December 2015. More and more manufacturers in the EU are developing innovative fertilising products including nutrients or organic matter recycled from bio-waste. But diverging national rules and standards make it difficult for producers of organic fertilisers to sell and use them across the EU single market. The existing Fertilisers Regulation ensures free movement for traditional fertilisers typically made of mined or synthetic raw materials but it does not include a clearing procedure for organic fertilisers. As a result, around half of all fertilisers produced currently stay in the country where they were produced. This is the case for virtually all fertilisers produced from organic materials, such as animal by-products or other agricultural residual products, or recycled bio-waste. Organic fertilisers have therefore a competitive advantage which hampers innovation and investment in the circular economy. Considering that processes for producing traditional fertilisers are often both energy consuming and CO2-intensive, easier market access for organic fertilisers can also bring environmental benefits. The Commission therefore proposes to bring organic fertilisers within the scope of the Fertilisers Regulation and grant access to CE marking. By affixing the CE marking to a product, a manufacturer declares that the product meets all the legal requirements and it can be traded freely across the EU. The Regulation will create a level playing field for all fertilising products. At the same time, new common requirements for quality, safety and labelling will guarantee a high level of safety and environmental protection of all CE marked fertilising products. All products will be labelled in a uniform way allowing European farmers to make informed choices, contributing to making food production more cost and resource effective.

What are the main elements of the proposal?

The proposal contains several elements that will help create a level playing field for all fertilising products, while at the same time ensure high safety and environmental protection standards. The proposal:

  • provides rules for free movement of all CE marked fertilising products across the EU: The current rules cover only inorganic fertilisers and agronomic additives. The proposal will allow all fertilising products, including those derived from recycled bio-waste and nutrients, to benefit of CE-marking that ensures free movement in the single market.
  • updates the current requirements for inorganic CE marked fertilisers;
  • maintains optional harmonisation – a manufacturer who does not wish to CE-mark the product and have unrestricted access to the entire EU single market can choose to opt for compliance with national rules instead – in line with the subsidiarity principle.
  • introduces new harmonised requirements for all CE marked fertilising products regarding

o    quality – such as minimum nutrient content, organic matter content, neutralizing values that are specific to each category of fertilising products;

o    safety – such as maximum limits for heavy metals, including cadmium, for organic contaminants, for microbial contaminants and for impurities specific to each category of fertilising products;

o    labelling – such as the actual nutrients content and their forms which will allow the farmers to modulate the use of the fertilisers depending on the plant needs;

  • modernises the declaration of conformity and conformity assessment procedures manufacturers of fertilising products have to comply with if they want to trade their products in the EU single market;
  • delineates the borderlines between fertilising products and Plant Protection Products, to avoid overlap between plant bio-stimulants and plant growth regulators;
  • enables derived animal-by-products to move freely on the single market as fertilising products after the end point in the manufacturing chain would be laid down in the Animal by-products Regulation;
  • includes recovery rules for bio-waste transformed into composts and digestates. If these products are incorporated in CE marked fertilisers, they are no longer considered to be waste within the meaning of the Waste Framework Directive. This allows waste-derived products to freely circulate in the EU.

How will the proposal contribute to the circular economy?

The Circular Economy Package aims to help EU industry become more sustainable and competitive, foster sustainable economic growth and generate new jobs. The revised Fertilisers Regulation harmonises EU rules for products derived from waste organic materials and by-products, and provides rules to recover nutrients into secondary raw materials. As a result, it should improve the efficiency of supply chains and create a real internal market for secondary raw materials in the EU, turning waste management problems into economic opportunities. The fertilisers sector will become less dependent on imports of critical raw materials, such as phosphates, that can be safely recycled from waste organic materials and biomass. By encouraging bio-waste recycling, the EU could make much better use of the resources that are already available. Currently, only 5% of waste organic material is recycled and used as fertilisers, but recycled bio-waste could substitute up to 30% of inorganic fertilisers. In addition, bio-waste based fertilisers will also improve soil structure, soil biodiversity and soil carbon sink. The EU also imports more than 6 million tonnes of phosphate rocks a year but it could recover up to 2 million tonnes of phosphorus from sewage sludge, biodegradable waste, meat and bone meal or manure. Recycled nutrients can also substitute synthetic nitrogen fertilisers. Since the production of synthetic nitrogen fertilisers is very energy intensive, this would reduce the carbon footprint of the fertilisers industry. The proposal responds to the societal demand for a more resource efficient and less carbon intensive industry by closing the loop between domestically available bio-waste and recycled nutrients to be used in fertilising products.

What fertilising products are covered by the proposal?

The revised proposal applies to the entire catalogue of fertilising products: organic, organo-mineral and inorganic fertilisers, liming materials, soil improvers, growing media, agronomic additives, plant bio-stimulants and fertilising product blends. The proposal will not apply to raw waste products, to unprocessed animal by-products nor to plant protection products. The proposal also applies to fertilising products containing animal by-products if they are processed in accordance with the Animal by-products Regulation to mitigate the animal and public health risk. Raw manure is not regulated by the proposal, but dried manures or digested manures (i.e. processed manure) fall within its scope. To avoid uncertainty for operators in this sector, the proposal clarifies the point at which a substance is no longer treated as waste or animal by-product, according to legislation, and can be treated as an input to another process and thus be moved freely under single market rules.

Will producers be forced to CE-mark their products? Can the producers continue to sell fertilisers according to national rules?

As some fertilising products are not produced or traded in large quantities across the EU, the Commission is proposing optional harmonisation, taking into account the principles of better regulation and subsidiarity. A dual approach will prevent market disruption and at the same time create new opportunities for producers of CE fertilisers – both organic and inorganic. In practice, manufacturers will have two options. They can comply with the new harmonised safety, quality and labelling requirements, then affix the CE mark to their product and benefit from easy and free access to the EU internal market. Equally, they could decide to trade their product on the national market according to the national rules. In case they want to sell their products in other EU countries but do not want to CE mark their products, they may be able to do so, however depending on mutual recognition between the Member States. But due to diverging national rules and standards the development of a cross-border market for organic fertilising products has proven to be difficult. This is one of the problems the Commission proposal is designed to address.

How will the new rules improve the protection of health and the environment?

The current Fertilisers Regulation does not address possible contamination of soil, inland waters, sea waters, and ultimately food, by EC marked fertilisers. Some fertilisers may contain substances that are considered dangerous to human health and environment. In particular, phosphate fertilisers can contain heavy metals, such as cadmium. To avoid contamination of the food chain and limit environmental damage, the Commission proposes harmonised limits for heavy metals (cadmium, chromium, mercury, nickel, lead, arsenic) in CE marked fertilisers.The limits for cadmium in phosphate fertilisers will be tightened from 60 mg/kg to 40 mg/kg after 3 years, and to 20 mg/kg after 12 years, reducing the risks for health and environment. This will allow producers to adapt their manufacturing process to comply with this increasingly strict limit for cadmium. The Commission estimates that if the share of phosphorus derived from recycled nutrients evolves over time from the current 5% to 30% of the market, a reduction by 10 % of the total heavy metal inputs to the soils in the EU could be expected (i.e. more than 600 tonnes over 10 years).Fertilising products derived from treated bio-waste and biomassare in general less contaminated with heavy metals. But they could contain other types of contaminants, such as polycyclic aromatic hydrocarbons (PAHs). The Commission therefore proposes to establish a maximum content limit for PAHs in component materials, such as composts or digestates. Organic fertilisers and organic soil improvers may also derive from animal by-products, such as manure, processed animal protein or meat-and-bone meal. Their processing methods are defined in the Animal by-products Regulation that ensures the safety of the derived products and allows the cross-border transfer of animal by-products within the EU.The revised Fertilisers Regulation will create links between the different regulatory frameworks to avoid duplication of procedures.

How will resource efficiency be improved?

The production of inorganic nitrogen fertilisers is very energy intensive. About 2% of the world's energy is used to produce synthetic nitrogen fertilisers. In 2007, the global production of inorganic nitrogen fertilisers generated 465 million tonnes of CO2. The EU is also highly dependent on imports of phosphates. Around 90% of the phosphate rock used to produce fertilisers is imported, making the EU vulnerable to high prices of raw materials. Considering the expected global population growth and the related increase of food demand, we can expect that the demand for nitrogen and phosphate fertilisers – and consequently for resources – will increase in coming years. Hence, there is a need to find alternative resources such as recycled nutrients. Disrupted nutrient recycling is also a problem worldwide. Phosphorus and nitrogen cycles are subject to losses in the environment, and phosphorus is a limited resource. The leaching of nutrients into the environment has led to deterioration of surface water through eutrophication. Other valuable nutrients are wasted and end up in landfills instead of being recycled for plant nutrition. In a more circular economy, the value of raw materials and energy used in products could be maintained in recycled products and contribute to a more resource efficient Europe. The Fertilisers Regulation also encompasses products to enhance plant nutrition efficiency. As a result, there is lower and more efficient use of fertilisers.

Will the proposal help to create new opportunities for businesses? What about the SMEs?

The fertiliser sector supplies products to about 12 million farms in the EU to fertilize about 175 million hectares of agricultural land, employing around 130.000 people. Other jobs are indirectly created in the supply chain and sales activities. Up to 80 % of the on-site workers are employed in the production of organic fertilising products in around 16.000 production sites (SMEs or farms) across the EU. However, around half of the fertilisers currently on the market are left out of the scope of the Fertilisers Regulation and the CE mark that ensures their access to the single market. This is specifically the case for organic fertilisers. According to estimates about 120.000 jobs could be created thanks to recycling of bio-waste in organic-based fertilisers. By levelling the playing field for all fertilisers, SMEs and farmers producing organic fertilising products will be able to access the single market and seize new opportunities. They will be able to offer their products to a wider group of customers, enjoying possible price premiums from offering a product backed by the widely recognized quality guarantee of the CE marking. This will further boost research, innovation and investment in the circular economy, create jobs and generate value from secondary domestically sourced resources which would otherwise be disposed as waste.

How will it be ensured that fertilising products on the market apply to the rules?

The manufacturer, who also affixes the CE mark, will need to ensure that the products they place on the market conform to the rules set out in the Regulation. They need to ensure that the CE marked fertilising product or the accompanying document are labelled so that the products can be identified and traced to the manufacturer. The conformity assessment will be based on the New Legislative Framework for product legislation in the EU. For certain products, the manufacturer's internal production control will be enough. For other products, such as those produced from secondary raw material, an independent conformity assessment body (the 'notified body') will verify and attest the technical product design or the manufacturers' quality system. Member States will be responsible for market surveillance under general market surveillance rules. National market surveillance authorities will be invited to participate in a so-called 'AdCo' group for administrative cooperation. Member States' notifying authorities will control the quality of the work of conformity assessment bodies and may decide to suspend or withdraw their notification in case they are observing failures in the conformity assessment procedures. If there is reason to believe that a CE marked fertilising product is not in compliance with the rules, economic operators need to take corrective action, including withdrawals or recalls, to ensure that products they have placed on the marked are in compliance with the Regulation. The national market surveillance authority can require the economic operators to take those corrective actions. The national authority needs to inform both the Commission and other Member States, unless the risk is limited to its own Member State. The Commission will have a right to examine and decide whether measures taken against CE marked fertilising products are justified. This new safeguard procedure will involve the national market surveillance authorities and relevant economic operators to ensure effective and swift action.

Will the rules apply to imported raw materials?

The requirements will only apply to finalised CE marked fertilising products, including those imported into the EU and sold in the single market. The rules will not apply to imported raw materials (e.g. phosphate rock). Phosphate rock – regardless of cadmium content – can therefore continue to be exported to the EU, where it can be used for the production of fertilisers. CE marked fertilisers, however, may not exceed the proposed cadmium limits. Non-CE marked fertilisers for national markets will continue being subject to applicable cadmium limits in Member States. The same is true for finalised fertilisers exported as such to the EU and marketed without the CE marking for national markets. Transitional periods will allow mining companies and fertiliser producers relying on phosphate rock to adapt to the new rules prior to their applicability, by investing in decadmiation technologies or diversifying their raw material sources. The Commission stands ready to facilitate the transition by supporting investment in research and development in decadmiation technologies as well as by using existing instruments under its neighbourhood policy.

Was there an impact assessment of the revised Regulation?

The proposal is based on extensive consultations with stakeholders and an impact assessment. The evaluation of the existing Fertilisers Regulation carried out in 2010 concluded that the Fertilisers Regulation could be more effective in promoting innovative fertilisers, and that reforms would also be needed to better protect the environment. It also showed that neither economic operators, nor national authorities considered that mutual recognition was sufficient for ensuring free movement of organic fertilisers, since fertilisers are products for which strict rules are needed to ensure product quality, protection of the environment and health. All interested stakeholders have been consulted during the preparation phase, including as part of the public consultation on Circular economy published in May 2015. Stakeholders were also invited to give feedback to the Roadmap for the revision of the Fertilisers Regulation published in October 2015. The proposal is supported by an impact assessment which showed that the reform would lead to administrative simplification and ensure flexibility needed on the market, while at the same time ensuring protection of health and environment. It will significantly ease access of innovative fertilisers produced from organic or secondary raw materials to the single market. The proposal will also create opportunities to operators dealing with waste management. Farmers and other fertiliser users are likely to see an increase in the product variety offered to them, while people will be better protected from contamination of soil, water and food.

Next steps?

The draft Regulation will now be sent to the European Parliament and Council for adoption. Once adopted, it will be directly applicable, without the need for transposition into national law, after a transitional period allowing companies and public authorities to prepare for the new rules.