On 8 October 2025, the Federal Administrative Court (Case No. 10 C 1.25) ruled that the Federal Government must draw up a national action programme to protect water bodies from nitrate pollution from agricultural sources (hereinafter: Nitrate Action Programme). The action was brought by Deutsche Umwelthilfe, a recognised environmental organisation, originally with the aim of amending the regulations on fertiliser use to ensure a limit value of 50 mg/l of nitrate at all German groundwater monitoring points and specific values at monitoring points for German surface waters. Now that the full grounds for the judgement are available, it is clear that the Federal Administrative Court essentially takes the view that the Federal Republic of Germany has not, to date, had a national Nitrate Action Programme. It is obliged to do so under the relevant European legislation, the Nitrates Directive (Directive 91/676/EEC of 12 December 1991). This obligation is also set out in Section 3a of the Fertiliser Act (DüngG). This action programme must be taken into account, in particular, when enacting regulations under the Fertiliser Act – specifically, the Fertiliser Ordinance. It follows from this, according to the reasoning of the Federal Administrative Court, that the current legislation transposing the Nitrates Directive – that is, the national fertiliser legislation consisting primarily of the Fertiliser Act and the Fertiliser Ordinance – does not constitute an action programme within the meaning of the directive. The Federal Government is now required, in accordance with the Court’s requirements, to draw up a corresponding Nitrates Action Programme, which must, in particular, be capable of reducing nitrate inputs from agriculture to such an extent that groundwater no longer contains more than 50 mg/l of nitrate; in a second step, the action programme must be incorporated into the consultations on the drafting of an amendment to the Fertiliser Ordinance (Press Release of the Federal Administrative Court No. 74/2025 of 8 October 2025).
What does this mean for the development of fertiliser legislation and the designation of ‘red zones’?
Following the Federal Administrative Court’s ruling of 24 October 2025 on the invalidity of the Bavarian State Fertiliser Ordinance (see news article of 27 October 2025), the Federal Government is required to amend the Fertiliser Ordinance. The background to this is that the Federal Administrative Court did not consider there to be a sufficient legal basis for the designation of ‘Red Areas’, i.e. areas contaminated with nitrate as defined under the state fertiliser regulations. In particular, Section 13a(1) of the Fertiliser Ordinance is not sufficiently specific to allow for the designation of ‘Red Zones’. With the judgement of 8 October 2025 and the obligation set out therein to draw up a national nitrate action programme, these two tasks assigned to the Federal Government are closely intertwined. The Federal Government must first draw up the action programme. This requires a strategic environmental assessment and will therefore take some time. Only then will it be possible, for formal reasons alone, to amend the Fertiliser Ordinance. The Federal Administrative Court has expressly stated that any amendment to the Fertiliser Ordinance requires the prior drafting and incorporation of the national Nitrate Action Programme.
We are actively involved in the revision process. We are currently endeavouring to put forward proposals as part of the update to the fertiliser legislation and, in the interests of farmers, to incorporate our experience from recent years regarding the critical technical and legal debate surrounding the designation of ‘red zones’. Please feel free to contact us for an assessment of the current legal situation and foreseeable and possible developments.