In November 2015, the Federal Environment Agency (UBA) presented a concept for the protection of biodiversity. According to this concept, unacceptable effects on biological diversity should be avoided by establishing application restrictions as part of the authorisation procedure for plant protection products. According to UBA's proposal, all plant protection products should be regulated if they are expected to have a particularly strong adverse effect on food webs due to their broadband effect. UBA has ordered a legal opinion on the question of legal applicability.
In implementing its concept, UBA has been trying since autumn 2018 to restrict the use of plant protection products to protect biodiversity. UBA has drafted the application restrictions "Biodiv 1" and "Biodiv 2" for this purpose. According to these provisions, the plant protection product may only be used if a sufficient amount of biodiversity is available on the total agricultural area (agricultural and unused arable land) of the farm in order to protect biological diversity. The proportion should be sufficient if the sum of the weighted biodiversity in hectares is at least 10 % of the numerical value of the total agricultural area of the farm in hectares. According to the application restriction "Biodiv 2", the user has to document that at the time of application the required standard proportion of biodiversity areas was available. The application restrictions should allow the use of the plant protection product only if there are ecological compensation areas at farm level that are not treated with plant protection products.
The proposed application restrictions should be accompanied by a transitional regime. According to the UBA, the application restrictions should be complied with from 1 January 2020 onwards.
We are of the opinion that there are considerable concerns that the application restrictions "Biodiv 1" and "Biodiv 2" should be legal. If you have any questions, please contact the lawyer Dr. Alexander Koof.