Council of State warns of 'unequal treatment' of farming and industry in nitrogen decree

The Council of State, Belgium's highest administrative court, has criticised the nitrogen decree proposed by the Flemish government. The rules are not always well worked out or substantiated, the Council said in a ruling on Monday evening, and the decree could lead to unequal treatment of agriculture and industry when applying for environmental permits to carry out their operations.

One of the most contentious issues facing the Flemish government is how to curb nitrogen emissions from agriculture and industry. After months of divisive negotiations, a decree was submitted to parliament in July by the ruling parties N-VA (Flemish nationalists) and Open VLD (liberals). Coalition partner CD&V (Christian democrats) refused to give its approval, pending an environmental impact report on two relaxations the party wanted to include.

Wilfried Vandaele of N-VA and Willem-Frederik Schiltz of Open VLD, the leaders of their parties in the Flemish parliament, decided not to wait and submitted their proposal for a decree.

Lack of transparency

The Council of State, which provides legal advice to Belgium's governing bodies, now says it questions the "comprehensibility and transparency" of what is on the table. For example, the method for determining whether a company can obtain an environmental permit has not been properly worked out, it says. This is, however, precisely what the legislation is supposed to do.

In particular, the Council says the calculation of a company's "impact score" is not transparent enough. This score expresses the nitrogen impact of a company on its surroundings and determines whether it is eligible for a permit. In addition, the Council believes the decree is incompatible with the European Habitats Directive in several respects.

Finally, the Council questions the distinction between agriculture and industry. Permission requirements are much stricter for agriculture, and this is not sufficiently justified, the report says. The Council explicitly refers to Article 10 of the Constitution, which guarantees equal treatment for all Belgians.

The Flemish council of ministers will meet on Tuesday morning to discuss the nitrogen dossier again, several parties have confirmed.


Agriculture, transport and industry in Flanders emit too much nitrogen, which affects nature and people. Politicians are trying to reduce emissions, but this is proving more complicated than expected. Particularly in the last few months, disagreements between the governing political parties have grown, while farmers have taken to the streets to show their dismay. 


#FlandersNewsService | Flemish farmers take to the streets in Brussels in March 2023 to protest against proposed rules to reduce nitrogen emissions © BELGA PHOTO JAMES ARTHUR GEKIERE

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Agri-food industry industry urges Flanders to adapt nitrogen decree
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