1. Agri-Food Law: Term, Development, Structures, System and Framework

Regulation (EC) 178/2002 of the European Parliament and of the Council 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/1, art 3 no 1.

For example, see the concept of traceability in Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/1, art 3 no 15.

See for example, the definition of food law in Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/1, art 3 no 1.

Härtel (2012a), § 31 recital 26.

Kahl (2008), p. 10.

Monien (2014a), p. 60 ff.; Kahl (2008), p. 10.

Monien (2014a), p. 63 f.

For this well-ordered law, see Härtel (2012b), § 19 recital 3 and 4; Härtel (2006), p. 19.

Kahl (2008), p. 12.

For the following see Härtel (2016), p. 15 ff.

UNGA Res 217 A (III) (10 December 1948) UN Doc A/RES/217 A (III).

Doehring (2004), p. 428; Ehm (2013), pp. 395, 398. For the range of views concerning the question of the legally binding effect of the UDHR see for example Kau (2013), p. 203 recital 235 and 420; Nettesheim (2009b), § 173, p. 191 recital 38 ff.

German Federal Law Gazette 1976 II, ‘Bekanntmachung über das Inkrafttreten des Internationalen Pakts über wirtschaftliche, soziale und kulturelle Rechte’ (9 March 1976), p. 428.

See Ehm (2013), pp. 395, 398.

Art. 12 (2) UN-Frauenrechtskonvention vom 18. Dezember 1979, German Federal Law Gazette 1985 II, ‘Gesetz zu dem Übereinkommen vom 18. Dezember 1979 zur Beseitigung jeder Form von Diskriminierung der Frau’ (25 April 1985), pp. 647 ff.; Convention on the Elimination of all Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) UNGA Res 34/180 A/34/46, 193 (CEDAW).

Art. 24 (2) lit. c), e) and art. 27 (3) UN-Kinderrechtskonvention vom 20. Dezember 1989, German Federal Law Gazette 1992 II, ‘Bekanntmachung über den Geltungsbereich des Übereinkommens über die Rechte des Kindes’ (28 October 1992), pp. 121 ff.; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 (CRC).

Art. 25 sentence 3 lit f) and art. 28 (1) UN-Behindertenrechtskonvention vom 13. Dezember 2006, German Federal Law Gazette 2008 II, ‘Gesetz zu dem Übereinkommen der Vereinten Nationen vom 13. Dezember 2006 über die Rechte von Menschen mit Behinderungen sowie zu dem Fakultativprotokoll vom 13. Dezember 2006 zum Übereinkommen der Vereinten Nationen über die Rechte von Menschen mit Behinderungen’ (21 December 2008), pp. 1419 ff.; Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) UNGA A/RES/61/106 (CRPD).

Schmitz (2012), pp. 238, 239 f.; see also Laskowski (2010); Stubenrauch (2010), p. 521.

Schmitz (2012), pp. 234, 235.

Engbruch (2008), p. 163 (the distinction has no practical effect on the particular application of the Right to Food or to the reviewing of the national reports).

The Committee on Economic, Social and Cultural Rights (CESCR) monitors the compliance with the UN Covenant on Economic, Social and Cultural Rights (ICESCR).

C.f. United Nations, Economic and Social Council, General Comment no 12 ‘The right to adequate food (art 11)’ (12 May 1999) E/C.12/1999/5. http://​www.​refworld.​org/​pdfid/​4538838c11.​pdf. Accessed 13 January 2016.

United Nations, Economic and Social Council, General Comment no 12 ‘The right to adequate food (art 11)’ 12 May 1999, E/C.12/1999/5. http://​www.​refworld.​org/​pdfid/​4538838c11.​pdf. Accessed 13 January 2016.

European Parliament, ‘Resolution of 18 January 2011 on recognition of agriculture as a strategic sector in the context of food security (2010/2112(INI))’ [2012] OJ C 136 E/02, R. 4.

This concept of duties can be found in a similar manner in the respect/protect/remedy approach of the UN Guidelines on Business and Human Rights (Human Rights Council (UNHRC) ‘UN Guiding Principles on Business and Human Rights’) UN Doc A/HRC/17/31.

The duties of the state, see United Nations, Economic and Social Council, General Comment no 15 (see above); overall see http://​www.​bpb.​de/​internationales/​weltweit/​178491/​menschenrecht-auf-nahrung. Accessed 13 January 2016.

Ehm (2013), pp. 395, 400; Monien (2014b), § 34, p. 789—meaning, advantage and disadvantage of Soft Law.

FAO (2012a); see FAO (2004) http://​www.​bmel.​de/​SharedDocs/​Downloads/​Landwirtschaft/​Welternaehrung/​Leitlinien-RechtaufNahrung.​pdf?​_​_​blob=​publicationFile. Accessed 13 January 2016.

See Amnesty International (2010) http://​www.​amnesty.​de/​files/​Brosch%C3%BCre_​WSK-Rechte_​DS.​pdf. Accessed 13 January 2016.

FAO (2012b) http://​www.​fao.​org/​docrep/​016/​i2801e/​i2801e.​pdf. Accessed 13 January 2016.

124 member states of the Committee on World Food Security of the United Nations (CFS) decided unanimously these guidelines on 11 May 2012.

See the summary of the German Federal Ministry of Food and Agriculture (2015) https://​www.​bmel.​de/​DE/​Landwirtschaft/​Welternaehrung/​_​Texte/​RechtAufNahrung-LeitlinienFAO.​html. Accessed 13 January 2016.

Datta (2013), p. 92 ff.; Pearce (2012).

For more details, see, for example, von Bernstorff (2012), pp. 7 ff., 29 ff. http://​www.​humanrights-business.​org/​files/​landgrabbing_​final_​1.​pdf. Accessed 14 January 2016; Rudloff (2012) https://​www.​swp-berlin.​org/​fileadmin/​contents/​products/​studien/​2012_​S19_​rff.​pdf. Accessed 14 January 2016.

For a convincing differentiation with a view to an overview of the “competence-competence in joint connectedness of the EU and its Member States”, see Nettesheim (2009a), p. 401 f.

Streinz (2012b), § 85.

Härtel (2012b), § 19 recital 55.

Nettesheim in Grabitz et al. (2016), TFEU art 2 recital 15.

The majority of convention members rejected an exhaustive catalogue of competences, since they considered flexibility and dynamics in the competence power important (Record of Plenary Session of 23-24 May 2002, CONV 60/02, p. 4 no 9).

For more detail, see Härtel (2014a), § 11 recital 137 ff.

See Härtel (2012b), § 19 recital 142 f.

See for example Haratsch et al. (2016), recital 179.

For the grounds for application of primacy, see, ground-breaking decision of the ECJ, Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 1251, 1259, 1269. The German Constitutional Court (BverGE) also presumes this primacy (see BVerfGE 123, 267, 397—Lissabon).

Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 1251, 1253; Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1892 para 28.

Regarding this controversy, see, for example, Ehricke in Streinz (2012a), TFEU art 267 recital 69.

Haratsch et al. (2016), recital 538.

For the problematic of choosing the correct legal basis, see Nettesheim (2009a), p. 434 ff.

Questions regarding Animal Welfare and the Agri-Food Sector are not the subject of this book.

Cf Kahl in Streinz (2012a), TFEU art 11 recital 18.

Art 43 (2) TFEU is the legal basis for legislative acts of the EU.

Cf van Rijn in von der Groeben et al. (2015), TFEU art 43 recital 14.

Council Regulation (EC) 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) 2092/91 [2007] OJ L 189/1; Härtel (2012b), § 19 recital 27.

Regulation (EC) 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs [2004] OJ L 139/1.

For example: Regulation (EC) 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin [2004] OJ L 139/55; Regulation (EC) 2160/2003 of the European Parliament and of the Council of 17 November 2003 on the control of salmonella and other specified food-borne zoonotic agents [2003] OJ L 325/1; Regulation (EC) 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption [2004] OJ L 226/83.

Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/1.

Regulation (EC) 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules [2004] OJ L 165/1.

Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods, amending Regulation (EU) 1169/2011 of the European Parliament and of the Council and repealing Regulation (EC) 258/97 of the European Parliament and of the Council and Commission Regulation (EC) 1852/2001 [2015] OJ L 327/1.

Regulation (EC) 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed [2003] OJ L 268/1.

Regulation (EC) 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC [2009] OJ L 309/1.

Regulation (EC) 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers amending Regulations (EC) 1924/2006 and (EC) 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) 608/2004 [2011] OJ L 304/18.

Regulation (EC) 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods [2006] OJ L 404/9.

See Härtel (2014b), § 6 recital 60 ff.

For these questions, see, for example, Streinz (2016), recital 1287.

Mayer (2014) http://​www.​jura.​uni-bielefeld.​de/​lehrstuehle/​mayer/​dokumente/​Mayer_​Thesen_​Anhoerung_​EU-Ausschuss_​CETA_​TTIP_​1_​1.​pdf. Accessed 6 September 2016; Treier and Wernicke (2015), p. 334; Tietje (2016) http://​tietje.​jura.​uni-halle.​de/​sites/​default/​files/​PolicyPaper/​PolicyPaper_​No45.​pdf. Accessed 6 September 2016.

See here Müller (2017), § 9; Minhoff (2017), § 8; Rudloff (2017), § 11.

European Union, Treaty Establishing the European Economic Community (Consolidated Version), Rome Treaty, 25 March 1957, art 38 ff.

For development of the CAP, see, e.g. Härtel (2011), § 37 recital 11 ff.; Norer and Bloch (2016), G. recital 2 ff.; Zauner et al. (2012), pp. 61 and 71 ff.; Weingarten (2010), p. 7 ff.; Lindemann (2012), § 71 recital 2 ff.

Weingarten (2010), p. 8.

For an overview of the implementation problems in Germany, see, for example, Raschke and Fisahn (2006), p. 57.

Income subsidies via direct transfer income were formerly called compensatory payments.

Bundesministerium für Verbraucherschutz, Ernährung und Landwirtschaft (2005), pp. 13 ff. and 73 ff.; the company advisory system has to be executable by 2007 at the latest, see also Bundesministerium für Ernährung, Landwirtschaft und Verbraucherschutz (2006); from the literature, see Krüger (2012), ch 6.

European Commission COM (2010b) 673 final.

European Commission (2013), p. 2 ff. http://​ec.​europa.​eu/​agriculture/​sites/​agriculture/​files/​policy-perspectives/​policy-briefs/​05_​en.​pdf. Accessed 10 April 2017.

For the first pillar: European Agricultural Guarantee Fund (EAGF); for the second pillar: European Agricultural Fund for Rural Development (EAFRD), cf. Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) 352/78, (EC) 165/94, (EC) 2799/98, (EC) 814/2000, (EC) 1290/2005 and (EC) 485/2008 [2013] OJ L 347/549.

Weingarten (2010), p. 9; European Commission (2010a) http://​ec.​europa.​eu/​agriculture/​publi/​ms_​factsheets/​2010/​de_​en.​pdf. Accessed 12 April 2017; Deutscher Bauernverband (2015), pp. 99–100.

Deutscher Bauernverband (2015), p. 99.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 8 ff.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 22 ff.

Härtel (2014e), p. 38 ff.; Braun (2014), p. 131 ff.; Härtel (2014d), p. 330 ff.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 73 ff.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 124.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 152 ff.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 176 ff.

Cf. Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, recital 64.

Regulation (EU) 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) 922/72, (EEC) 234/79, (EC) 1037/2001 and (EC) 1234/2007 [2013] OJ L 347/671, art 75 no 3.

Commission Implementing Regulation (EU) 29/2012 of 13 January 2012 on marketing standards for olive oil [2012] OJ L 12/14; Commission Implementing Regulation (EU) 357/2012 of 24 April 2012 amending Implementing Regulation (EU) 29/2012 on marketing standards for olive oil [2012] OJ L 113/5; Commission Regulation (EU) 519/2013 of 21 February 2013 adapting certain regulations and decisions in the fields of free movement of goods, freedom of movement for persons, right of establishment and freedom to provide services, company law, competition policy, agriculture, food safety, veterinary and phytosanitary policy, fisheries, transport policy, energy, taxation, statistics, social policy and employment, environment, customs union, external relations, and foreign, security and defence policy, by reason of the accession of Croatia [2013] OJ L 158/74 and Commission Implementing Regulation (EU) 1335/2013 of 13 December 2013 amending Implementing Regulation (EU) 29/2012 on marketing standards for olive oil [2013] OJ L 335/14.

Cf. also Krüger and Haarstrich (2015), p. 129.

See Deutscher Bauernverband (2014), p. 91.

Included in the further changes by the CAP-Reform, amongst others, is that only operators, who are still active, have a claim to Direct Payments, cf. here, Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 9, 10; Commission Delegated Regulation (EU) 639/2014 of 11 March 2014 supplementing Regulation (EU) 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation [2014] OJ L 181/1, art 10 to art 13; § 5 to § 9 Direct Support-Implementation Regulation of 3 November 2014 (BGBl. I 1690).

Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 47 no 1.

Cf. §§ 6 ff. Direct Support Implementation Law of 9 July 2014 (BGBl. I 897). For background of the internal federal agriculture distribution System, see Härtel (2014c), p. 269.

Constitutional Court (BVerfG), Decision of 14.10.2008—1 BvF 4/05, BVerfGE 122, 1; Wendt and Elicker (2004), p. 673.

See Annex II of the Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) 352/78, (EC) 165/94, (EC) 2799/98, (EC) 814/2000, (EC) 1290/2005 and (EC) 485/2008 [2013] OJ L 347/549.

See Annex II of the Regulation (EU) 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) 352/78, (EC) 165/94, (EC) 2799/98, (EC) 814/2000, (EC) 1290/2005 and (EC) 485/2008 [2013] OJ L 347/549.

This involves the second stage of an EU Infringement (of Treaty) Proceedings. The first stage was sending a letter of formal notice by the Commission on 18 October 2013.

Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 43 ff.

For the German InVeKos (Integriertes Verwaltungs- und Kontrollsystem), see Commission Delegated Regulation (EU) 640/2014 of 11 March 2014 supplementing Regulation (EU) 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance [2014] OJ L 181/48, art 5 ff.; for the control system and administrative sanctions within the scope of Cross Compliance see art 37–41.

Cf. Commission Delegated Regulation (EU) 640/2014 of 11 March 2014 supplementing Regulation (EU) 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance [2014] OJ L 181/48, art 24 ff.

Taking this direction is for example, Busse (2015), p. 341.

Appearing to represent this are Krüger and Haarstrich (2015), p. 132.

Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 43 no 4.

See Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 43 to 46; Commission Delegated Regulation (EU) 639/2014 of 11 March 2014 supplementing Regulation (EU) 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation [2014] OJ L 181/1, art 40 to 48.

Thus, a total of 7944 Biogas installations were erected in past years, for which an agricultural area for energy plants of about 2.1 million hectares was used.

Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 45 no 2.

Cf Verordnung zur Änderung der Direktzahlungen-Durchführungsverordnung und der Agrarzahlungen-Verpflichtungsverordnung und der InVeKos-Verordnung (Draft), BR-Drs. 251/15 of 27 May 2015, art 1 § 24 f.

German Gesetz zur Durchführung der Direktzahlungen an Inhaber landwirtschaftlicher Betriebe im Rahmen von Stützungsregelungen der Gemeinsamen Agrarpolitik (Direktzahlungen-Durchführungsgesetz) of 9 July 2014 (BGBl I 897), as amended by art 5 of the statute of 2 December 2014 (BGBl I 1928) § 15 (1) (DirektZahlDurchfG).

DirektZahlDurchfG, § 16 (3).

Cf. Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/2009 [2013] OJ L 347/608, art 46 no 2 and DirektZahlDurchfG, § 18.

See Härtel (2014c), p. 269 ff.

Regulation (EU) 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) 1698/2005 [2013] OJ L 347/487.

Cf here, for example, Deutscher Bauernverband (2014), pp. 96–101; Härtel (2014e), pp. 38 and 71 ff.; Härtel (2014c), p. 269 ff.

Streinz (1993), p. 713; Streinz (2015), § 24 recital 24.

Streinz in Zipfel et al. (2016), recital 53b.

Gundel (2013), § 8 recital 30 and 31.

Commission of the European Communities COM (1985) 603 final; Commission of the European Communities [1989] OJ C 271/3.

For legislative competences, see Härtel (2012b), § 19.

DirektZahlDurchfG.

Regarding common expenditures, see Hellermann (2012), § 39 recital 3 ff.; for cooperative federalism in general, see Härtel (2012c), § 16 recital 84 ff.

For an alternative denotation, see Härtel (2012b), § 19 recital 27.

Cf. Ipsen (2016), recital 558; Härtel (2012b), § 19 recital 156.

For critical evaluation, Härtel (2012b), § 19 recital 75.

See Schmidt-Jortzig (2012), § 20; Härtel (2012b), § 19 recital 163.

Entwurf eines Gesetzes zur Änderung des Grundgesetzes (2006) BT-Drs 16/813, 11.

Lindemann (2012), § 71 recital 18.

Haratsch in Sodan (2011), art 70 recital 6 and art 72 recital 31; Rengeling (2006), p. 1543; Maurer (2010), § 17 recital 37.

Ipsen (2006), p. 2804.

For cooperative Federalism, see Rudolf (2008), § 141 recital 95; Härtel (2012b), § 19 recital 84 ff.

Cf. Lindemann (2012), § 71 recital 30.

Lindemann (2012), § 71 recital 56.

Based on Article 7 of the Legislation Law of the People’s Republic of China, the National People’s Congress and its Standing Committee exercise the legislative power of the State, the National People’s Congress enacts and amends basic laws governing criminal offences, civil affairs, the State organs and other matters, the Standing Committee of the National People’s Congress enacts and amends laws other than the ones to be enacted by the National People’s Congress.

According to Article 65 of the Legislation Law of the People’s Republic of China, the State Council shall, in accordance with the Constitution and laws, formulate administrative regulations. The administrative regulations may be formulated to govern the following matters: (1) matters requiring the formulation of administrative regulations in order to implement the provisions of law; and (2) matters within the administrative functions and powers of the State Council as provided for in Article 89 of the Constitution.

According to Article 72 of the Legislation Law of the People’s Republic of China, the people’s congresses or their standing committees of the provinces, autonomous regions and municipalities directly under the Central Government may, in light of the specific conditions and actual needs of their respective administrative areas, formulate local regulations, provided that such regulations do not contradict the Constitution, the laws and the administrative regulations.

According to the second paragraph of Article 72 of the Legislation Law of the People’s Republic of China, the people’s congresses or their standing committees of the cities with subordinate districts may, in light of the specific local conditions and actual needs, formulate local regulations of urban and rural construction and management, environmental protection and historical and cultural protection, provided that they do not contradict the Constitution, the laws, the administrative regulations and the local regulations of their respective provinces or autonomous regions, and they shall submit the regulations to the standing committees of the people’s congresses of the provinces or autonomous regions for approval before implementation. The standing committees of the people’s congresses of the provinces or autonomous regions shall examine the legality of such local regulations which are submitted for approval, and shall approve them within 4 months if they do not contradict the Constitution, the laws, the administrative regulations, and the local regulations of their respective provinces or autonomous regions.

According to Article 75 of the Legislation Law of the People’s Republic of China, the people’s congresses of the national autonomous areas have the power to formulate autonomous regulations and separate regulations on the basis of the political, economic and cultural characteristics of the local nationality (nationalities). The autonomous regulations and separate regulations of the autonomous regions shall be submitted to the Standing Committee of the National People’s Congress for approval and shall go into effect upon approval. The autonomous regulations and separate regulations of the autonomous prefectures or counties shall be submitted to the standing committees of the people’s congresses of the relevant provinces, autonomous regions or municipalities directly under the Central Government for approval and shall go into effect upon approval.

According to Article 80 of the Legislation Law of the People’s Republic of China, the ministries and commissions of the State Council, the People’s Bank of China, the State Audit Administration as well as the other organs endowed with administrative functions directly under the State Council may, in accordance with the laws as well as the administrative regulations, decisions and orders of the State Council and within the limits of their power, formulate rules.

According to Article 82 of the Legislation Law of the People’s Republic of China, the people’s governments of the provinces, autonomous regions, municipalities directly under the Central Government and the cities and the autonomous prefecture with subordinate districts may, in accordance with laws and administrative regulations and the local regulations of their respective province, autonomous regions or municipalities, formulate rules. Local governments may formulate rules to govern the following matters: (1) matters requiring the formulation of rules to implement the provisions of laws, administrative regulations and local regulations; and (2) specific administrative matters pertaining to their respective administrative areas.

According to the first Article of Law of the People’s Republic of China on the Contracting of Rural Land, the Law has been formulated in accordance with the Constitution for the purpose of stabilizing and perfecting the two-level operation system, which is based on the household system of contracted responsibility and on the responsibility system of contracting by households supplemented by unified management, entitling the peasants to a long-term and guaranteed right to the use of land, protecting the legal rights and interests of the parties of the contracting of rural land, so as to improve the development of agriculture and the rural economy and stabilize the rural areas.

The Statistical bulletin on the development of human resources and social security of 2015 shows that the total number of peasant workers is 277.47 million in 2015, with 168.84 million migrant workers. The total number of peasant workers here includes farmers engaged in non-agricultural industries in the city and the local.

Vice Minister of Agriculture Chen Xiaohua at the National People’s Congress press conference on rural and agricultural issues answered reporters’ questions on 11 March 2013 and said the area of transferred land had been up to 270 million mu, which for 21.5% of farmers contracted land by the end of 2012. According to the public information of the Information Office of the Ministry of agriculture, Zhang Hongyu, Director of the Department of Rural Economic System and Management, pointed out that about one-third of the land has been transferred till July 2016.

There are two ways when modifying Chinese law—amendment and revision, the main difference is that the amendment is a modification of individual provisions of the law and the revision is holistic, comprehensive modification. Land Administration Law of the People’s Republic of China adopted at the 16th Session of the Standing Committee of the Sixth National People’s Congress on 25 June 1986, first amended according to the Decision on Amending the Land Administration of the People’s Republic of China at the fifth session of the Standing Committee of the Seventh People’s Republic of China; revised at the Fourth Session of the Standing Committee of the Ninth National People’s Congress of the People’s Republic of China on 29 August 1998; second amended according to the Decision on Amending the Land Administration of the People’s Republic of China at the 11th Session of the Standing Committee of the Tenth National People’s Congress on 28 August 2004.

The Article 2 of Agricultural Product Quality Safety Law of the People’s Republic of China clarifies the term agricultural products as mentioned in the present Law shall refer to primary products sourced from agriculture, i.e., the plants, animals, microbes and their products, which are obtained from agricultural activities. The term agricultural product quality safety as mentioned in the present Law shall mean that the quality of an agricultural product meets the requirements for guaranteeing human health and safety. The Article 150 of Food Safety Law rules that food means any substance that has been processed or not processed that is suitable for eating and/or drinking, including substances used as food and traditional Chinese medicinal materials, excluding substances solely used as medicine. Food Safety means the assurance that the food is nontoxic, harmless, and compliant with reasonable nutritional requirement, and will not cause any acute, chronic and potential hazards to human health.

Cited from the State Administration for Industry and Commerce of the People’s Republic of China, the report on the development of the national market subject in April 2015.

According to the data of the first national agricultural census in 1997 (Data collected till the end of 1996), the number of peasant households in China is 225.811 million.

The China statistical yearbook for economy (2008) released by National Bureau of Statistics of China shows that the number of Chinese rural collective economic organizations is 0.61 million.

The Article 89 of the Constitution of the People’s Republic of China empowers the State Council exercises the following functions and powers: (1) to adopt administrative measures, enact administrative rules and regulations and issue decisions and orders in accordance with the Constitution and the law; (2) to submit proposals to the National People’s Congress or its Standing Committee; (3) to formulate the tasks and responsibilities of the ministries and commissions of the State Council, to exercise unified leadership over the work of the ministries and commissions and to direct all other administrative work of a national character that does not fall within the jurisdiction of the ministries and commissions; (4) to exercise unified leadership over the work of local organs of state administration at various levels throughout the country, and to formulate the detailed division of functions and powers between the Central Government and the organs of state administration of provinces, autonomous regions, and municipalities directly under the Central Government; (5) to draw up and implement the plan for national economic and social development and the state budget; (6) to direct and administer economic affairs and urban and rural development; (7) to direct and administer the affairs of education, science, culture, public health, physical culture and family planning; (8) to direct and administer civil affairs, public security, judicial administration, supervision and other related matters; (9) to conduct foreign affairs and conclude treaties and agreements with foreign states; (10) to direct and administer the building of national defense; (11) to direct and administer affairs concerning the nationalities and to safeguard the equal rights of minority nationalities and the right to autonomy of the national autonomous areas; (12) to protect the legitimate rights and interests of Chinese nationals residing abroad and protect the lawful rights and interests of returned overseas Chinese and of the family members of Chinese nationals residing abroad; (13) to alter or annul inappropriate orders, directives and regulations issued by the ministries or commissions; (14) to alter or annul inappropriate decisions and orders issued by local organs of state administration at various levels; (15) to approve the geographic division of provinces, autonomous regions and municipalities directly under the Central Government, and to approve the establishment and geographic division of autonomous prefectures, counties, autonomous counties, and cities; (16) to decide by law to place parts of provinces, autonomous regions, and municipalities directly under the Central Government under a state of emergency; (17) to examine and decide on the size of administrative organs and, in accordance with the law, to appoint or remove administrative officials, train them, appraise their performance and reward or punish them; and (18) to exercise such other functions and powers as the National People’s Congress or its Standing Committee may assign to it.

Furthermore there are the Regulations on Forest Fire Prevention, the Regulations on the Prevention and Control of Forest Diseases and Insect Pests, the Regulation on Land Survey, the Regulation on National General Survey of Pollution Sources, the Regulation on National General Surveys of Agriculture, the Regulation of the People’s Republic of China on the Administration of the Import and Export of Endangered Wild Fauna and Flora, the Detailed Rules for the Implementation of Forest Law, the Regulation on the Implementation of the Land Administration Law of the Peoples Republic of China, the Regulations on Restoring Farmland to Forest, the Regulation on the Protection of Basic Farmlands, the Regulations of the People’s Republic of China on Wild Plants Protection, the Regulations of the People’s Republic of China on Nature Reserves, the Regulation on the Implementation of the Water and Soil Conservation Law of the People’s Republic of China etc.

Drought Control Regulation of the People’s Republic of China, Regulation on Handling Major Animal Epidemic Emergencies, Regulation on the Administration of Central Grain Reserves, Regulations of the People’s Republic of China on Fishing Vessel Inspection, Regulations on Administration of Agricultural Genetically Modified Organisms Safety, Regulations on Plant Quarantine, and Regulation on the Administration of Cotton Quality Supervision etc.

Regulations on Grain Purchase, Administrative Regulation on the Registration of Farmers’ Professional Cooperatives etc.

The term “providing five guarantees in rural areas” in these Regulations means providing villagers with care and material support in their daily lives in terms of food, clothing, housing, medical care and burial expenses in accordance with the provisions of these Regulations.

See Bulletin No 2433 of the Ministry of Agriculture: the existing effective departmental regulations and normative documents of the Ministry of Agriculture.

Measures for the Administration of Circulation of Rural Land Contracted Management Right, Rules on the Arbitration of Rural Land Contracting Disputes, Measures for monitoring and evaluating the quality of agricultural cultivated land and so on.

Measures for the Examination and Approval of Agricultural Genetically Modified Organisms Processing, Administrative Measures for the Safety of Places of Origin of Agricultural Products and so on.

Measures for the Administration of Silkworm Eggs, Measures for Management of Agricultural Seed Substance Resources, Measures for the Balance of Fodder and Livestock, Measures for management of protected areas and gene pools of the genetic resources of livestock and poultry and so on.

Provisions on the Restricted Use of Pesticides, Measures for the Administration of the Production and Business License of Crop Seeds.

Measures for the Management of Livestock and Poultry Identification and Breeding Archives, Provisions on Fishing Avoidance, Provisions on the Administrative Penalty of Fishery, Measures for the Administration of Non-Pollution Agricultural Products, Administrative Measures for the Packaging and Marking of Agricultural Products, Measures for the Administration of Inspection Institution for Safety of Agricultural Products Quality, Measures for the Administration of Geographical Indications of Agricultural Products, Measures for the Administration of Green Food Logos, Measures for the Administration of the Quality and Safety of Agricultural Products Monitoring.

For example, China Food and Drug Administration has issued Measures for the Management of Food Production License, Measures for the Management of Business License of Food Production, Measures for the Supervision and Administration over Marketing and Quality Safety of Edible Agricultural Products, Provisions on the Supervision and Administration of Production of Food Additives and so on.

Taking Hebei Province as an example, the relevant decrees and regulations on agriculture and food promulgated by Hebei Provincial People’s Congress and its Standing Committee are: Regulation of Hebei Province on Farmers Cooperatives, Regulation of Hebei Province on Rural Land Contracting, Provisions of Hebei Province on Supervision and Administration of Foodstuff Safety, Measures of Hebei Province for Implementing the Law of the People’s Republic of China on Popularization of Agricultural Technologies, Regulation of Hebei Province on Breeding Livestock and Poultry, Regulations of Hebei Province on Afforestation, Measures of Hebei Province for the Implementation of Regulations on Pesticide Administration etc.

Taking Hebei Province as an example again, the relevant regulations on agriculture and food promulgated by the People’s Government of Hebei Province are: Regulation of Hebei Province on Wetland Protection, Regulation of Hebei Province on Drought, Implementation Measures of Hebei Province on Administration of Veterinary Drugs, Measures of Hebei Province for the Administration of Packaging Feed and Feed Additives, Measures of Hebei Province on Administration of Catering Kitchen Waste, Measures of Hebei Province on Administration of Grain Circulation, Regulations of Hebei Province on Safety Supervision and Administration of Agricultural Machinery, Measures of Hebei Province for the management of farmers’ surplus seed trade, Provisions of Hebei Province for Land Reclamation and so on.

The eleven cities with subordinate districts in Hebei Province are Shijiazhuang, Langfang, Qinhuangdao, Tangshan, Cangzhou, Baoding, Chengde, Hengshui, Zhangjiakou, Xingtai, Handan.

“People’s Republic of China rural land contract and management dispute mediation and Arbitration Law” was promulgated in June 27, 2009. It clearly defines the land circulation mediation and arbitration procedures on contract management. Because of the particularity of the land contract relationship, the arbitration here differs from the civil arbitration, which is established by the guidance of local government and its daily work is undertaken by the land contract management institutions within the administrative department of agriculture. Disputes over land contract and management are not excluded from the arbitration proceedings; where parties are dissatisfied with the results, they can still bring a lawsuit to the people’s court.

Forestry Law of the People’s Republic of China, Article 17: Disputes arising between units over ownership or right of use of trees or forest land shall be handled by people’s governments at or above the county level according to law. Disputes arising between individuals or between individuals and units over ownership of trees or right of use of forest land shall be handled by the local people’s governments at the county or township level according to law. A party to a dispute who refuses to accept the decision of the people’s government may bring a suit in People’s Court within 1 month after receiving notification of the decision. Pending a settlement of the dispute over the ownership of trees or right of use of forest land, neither of the parties involved may fell the trees under dispute.

Agriculture quality labels contain: pollution-free agricultural products logo, green food symbols, organic food mark etc. Law of the People’s Republic of China on Quality and Safety of Agricultural Products, Article 32: Agricultural products for sale shall be in conformity with the quality and safety standards of agricultural products. Producers may apply for use of the label for harm-free agricultural products. For agricultural products in the quality which meets the standards for quality agricultural products set by the State, producers may apply for use of the appropriate quality label for such products.

According to Criminal Law of People’s Republic of China, types of criminal responsibility contain: public surveillance, criminal detention, fine, fixed-term imprisonment, life imprisonment, and death penalty.

Another example: Article 147 (Criminal Law): “whoever produces fake pesticides, fake animal pharmaceuticals or fake chemical fertilizers or sells pesticides, animal pharmaceuticals, chemical fertilizers or seeds while clearly knowing that they are fake or no longer effective, or any producer or seller who passes substandard pesticides, animal pharmaceuticals, chemical fertilizers or seeds off as up-to-standard ones, thus causing relatively heavy losses to production, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined not less than half but not more than two times the amount of earnings from sales; if heavy losses are caused to production, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined not less than half but not more than two times the amount of earnings from sales; if especially heavy losses are caused to production, he shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment and shall also be fined not less than half but not more than two times the amount of earnings from sales or be sentenced to confiscation of property”.

In China, procedural law mainly includes: Civil Procedural Law (promulgated in 1991), Administrative Procedural Law (promulgated in 1989), and Criminal Procedural Law (promulgated in 1979) and they were amended for several times.

According to the Law of the People’s Republic of China on the Contracting of Rural Land, which was adopted in 2002, the contract period is 30 years for farmland, 30–50 years for grassland, 30–70 years for woodland.

As for land transfer, Law of the People’s Republic of China on the Contracting of Rural Land has made corresponding provisions. At the same time, the State Departments’ regulations and the Ministry of Agriculture’s rules also have a large number of provisions on land transfer.

The compensation system related to acquisition of rural collective ownership farmland and other land provisions is provided by Article 47, Land Administration Law of the People’s Republic of China.

The compensation related to the quality of agricultural production damage provisions is provided by Article 76 of the Agriculture Law of the People’s Republic of China.

According to Article 33, an agricultural product under any of the following circumstances shall not be sold: (1) It contains any pesticide, veterinary drug or other chemical substance prohibited by the state from being used; (2) The toxic and harmful substance such as the remnant of the pesticide, veterinary drug or other chemical substance, or the contained heavy metal, etc. does not meet the agricultural product quality safety standards; (3) The contained pathogenic parasites, microorganisms or biological toxin does not meet the agricultural product quality safety standards; (4) The material in use such as the preservative, antiseptic or additive, etc. does not meet the relevant compulsory technical norms of the state; or (5) Other circumstances under which it does not meet the agricultural product quality safety standards.

See Article 6 and Article 7, Regulation on Pesticide Administration.

See Article 13, Regulation on Pesticide Administration.

See Article 9, Regulation on Veterinary Drug Administration.

See Article 12 and Article 13, Regulation on Veterinary Drug Administration.

See Article 23 and Article 24, Regulation on Veterinary Drug Administration.

See Article 15, Regulation on Feed and Feed Additives.

See Article 15, Seed Law of the People’s Republic of China.

See Article 31, Article 32, Article 33, Seed Law of the People’s Republic of China.

According to Article 38, Agriculture Law of the People’s Republic of China: “The State gradually increases the overall input to agriculture. The annual overall input to agriculture by the Central Government and the local governments at or above the county level shall be increased by a broader margin than their regular revenues respectively. The various funds earmarked for agriculture in the financial budgets of the people’s governments at all levels shall chiefly be used for the following: strengthening the construction of agricultural infrastructure; supporting readjustment of the agricultural structure and promoting industrial management of agriculture; protecting the comprehensive production capacity of grain and ensuring safety of State grains; improving the system for animal and plant quarantine and epidemic prevention and prevention and control of animal epidemic diseases and plant diseases, insect pests, weeds and damage caused by rats; establishing a sound system for quality standards of agricultural products and supervisory system for quality inspection as well as networks for agricultural product markets and information service; supporting scientific research and education in agricultural, popularization of agricultural technology and training of farmers; strengthening the construction of projects for protection of agricultural ecological environment; supporting the development of poverty-stricken areas; ensuring the income level of farmers; and so on. The investment made by the governments at or above the county level in capital construction in agriculture including crop-planting, forestry, animal husbandry, fishery and irrigation and water conservancy shall be given overall consideration and increased in a coordinated manner. The State increases its investment in agricultural development and protection of the ecological environment in the western region in order to speed up the development of the region”.

On 24 December 2009, the Ministry of Finance and the Ministry of Agriculture issued a “central financial fund management approach for crop improved varieties subsidy” (Finance Agricultural [2009] No 440), and defined the scope of seed subsidies and capital subsidies manner, supervision and management of funds and other requirements.

On 27 January 2015, the Office of the Ministry of Agriculture and the Office of the Ministry of Finance issued an “implementation guidance on 2015-2017 agricultural machinery purchase subsidy” (Agriculture Office Finance [2015] No 6), which defined the scope of the subsidy measures and size, the scope of subsidies and standards, object subsidies, payment of funds and other specific requirements.

In 2015, by the State Council’s agree, the Ministry of Finance and the Ministry of Agriculture issued “guidance for adjustments to improve three agricultural subsidies policy” (Finance Agricultural [2015] No 31). On 18 April 2016, the Ministry of Finance, Ministry of Agriculture issued “The Notices on Comprehensive unfoldment agricultural ‘three subsidies’ Reform” (Finance Agriculture [2016] No 26).

Such as: cotton, rubber etc.

Agricultural Product Quality Safety Law of the People’s Republic of China was adopted on 29 April 2006 and came into force on 1 November 2006.

Food Safety Law of the People’s Republic of China was adopted on 28 February 2009 and revised on 24 April 2015, then came into force on 1 October 2015.