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Building Regulations

In Federal States in which legislation does not include an excavation law and the State-level Nature Conservation Law does not apply to the extraction of non-energetic, ground-based natural resources in the context of dry excavations, this type of natural resource extraction falls within the scope of the relevant state building regulations.

Legal limitations also exist: State building regulations apply to the excavation of solid rock (limestone, basalt, etc.), for example, in quarries with an area of up to 10 hectares (ha) in which no blasting is carried out. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable.
Excavation laws

In Bavaria and North Rhine-Westphalia, the above-ground excavation of non-energetic, ground-based natural resources in the context of dry excavations is determined at state level by the existing excavation laws (AbgrG). For the excavation of solid rock (limestone, basalt, etc.) in quarries where blasting does not occur, the AbgrG applies to sites with an area of up to 10 ha. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable. In the other Federal States, this type of natural resources extraction is regulated by the respective state building regulations or by the state-level nature conservation laws.

In general, the AbgrG applies to those raw materials the excavation of which is not directly subject to mining law or the mining authorities. These raw materials include (in particular) gravel, sand, clay, loam, limestone, dolomite and other rocks, bog mud and clays. However, the jurisdiction between AbgrG and mining law can vary from case to case in the case of certain raw materials, such as quartz gravels. The requested authority must always verify its own jurisdiction in each case. The AbgrG also encompasses surface area usage and the subsequent rehabilitation of the area.
Federal Immission Control Act

The German Federal Immission Control Act (BImSchG) is the most important and practice-relevant law in the field of environmental law. It constitutes the basis for the approval of industrial and commercial installations. In the natural resources extraction industry, quarrying companies must have approval to extract stones and earth. Every quarrying area of 10 hectares or more must undergo a full approval procedure, including public participation and UVP (environmental impact assessment). A more simplified approval procedure is used for quarrying areas of less than 10 hectares.

The sphere of responsibility for the legal immission control approval procedure is fully specified in the Immission Control Acts of the Federal States. The Federal States are tasked with the administrative enforcement of the approval procedure. Each individual state’s Environment Ministry – the highest local immission protection authority – usually bears the responsibility for this procedure. Subordinate authorities include regional councils, district authorities and lower-level administrative authorities. Administrative jurisdiction generally lies with the lower-level administrative authorities.
GDP

The GDP measures the value of goods and services produced domestically (creation of value) within a given period (quarter, year). The Federal Office of Statistics calculates the GDP as follows: production value minus intermediate consumption = the gross value added; plus taxes on products and minus subsidies = GDP
Gross value added

The gross value added is calculated by deducting intermediate consumption from the production values, so it only includes the value added created during the production process. The gross value added is valued at manufacturing prices, i.e. without the taxes due (product taxes), but including the product subsidies received.

During the transition from gross value added (at manufacturing prices) to GDP, the net taxes (product taxes less product subsidies) are added globally to arrive at an assessment of the GDP at market prices'. Source: Destatis
Planning approval procedure under mining law

The planning approval procedure under mining law is used for the approval procedure of a general operating plan for projects which require an environmental impact assessment (§§ 52(2a), in conjunction with 57 a of the BBergG).
Subsidies

There are different definitions and methodological approaches at the international as well as at the national level as to what subsidies are and how they are calculated. According to the definition of the German government’s subsidy report, this report considers federal subsidies for private companies and economic sectors (ie grants as cash payments and tax breaks as special tax exemptions) which are relevant to the budget. Subsidies at the federal level can be viewed via the subsidy reports of the federal states (see Appendix 5 of the German government subsidy report).
Water Resources Act

In compliance with § 68(1), Water Resources Act (WHG), the excavation of landowners’ natural resources such as gravel, sand, marl, clay, loam, peat and stone in wet extraction operations requires a planning approval procedure. The reason for this is that groundwater is exposed in wet extraction, resulting in above-ground water. The planning approval procedure is implemented by lower-level water authorities.

The procedural steps of the planning approval procedure are governed by the general provisions of §§ 72 to 78 of the Administrative Procedures Act (VerwVfG). Within the meaning of § 68(3), nos. 1 and 2 of the WHG, the plan may only be established or approved if an impairment of the common good is not to be expected and other requirements of the WHG as well as other public-law provisions are fulfilled.

Where can information about granted licences be found?

Register of licences

Legal base

In Germany, the Federal State in question only grants the right to explore and extract free-to-mine natural resources. The right of disposal over a free-to-mine natural resource is designated as the right to mine, which can be requested from the mining authorities of the Federal States (read more on approval of mining projects).

Pursuant to § 75 of the BBergG (German Federal Mining Act), the mining authorities keep mining authorisation books and mining maps, in which newly-granted mining rights are entered (pursuant to the BBergG) or ‘Old Rights and Contracts’ are maintained pursuant to § 149 of the BBergG.

Public inspection of these books and maps was initiated within the framework of the implementation of the D-EITI. Since July 21, 2017 and pursuant to § 76(3) of the BBergG, the following information on granted and maintained mining rights can be viewed upon application to the mining authorities, (without evidence of a legitimate interest):

Owner
Extraction sites to which the mining right refers
Date of the application Natural resources extraction totals and granting of the right
Term
Natural resource(s) to which the mining right refers

The competent authorities may also make this information directly accessible to the public and this has already been taking place for some time now in many Federal States – several states publish a transparent online licence cadastre (i.e. a land registration licence). Other Federal States are also planning to set up similar systems.

All hydrocarbon-segment mining licences in Germany can also be viewed in the annual publication ‘Erdöl und Erdgas in der Bundesrepublik Deutschland (Crude oil and natural gas in the Federal Republic of Germany) .

Example of an online system: the NiBiS map server

One good example of the publication of information on mining rights on the Internet is the NiBiS map server of the Lower Saxony State Office for Mining, Energy and Geology (LBEG). On this website, citizens can obtain information about 400 specialist maps on topics such as contaminated sites, mining, soil science, erosion, geology, geothermal energy, geophysics, hydrogeology, geologic engineering, climate and raw materials. With regard to mining rights, the NiBiS regularly makes the following data available for viewing by the public on the map server for the Federal States of Lower Saxony, Bremen, Hamburg and Schleswig-Holstein:

Information about the licence holder
Coordinates of the licensed area
Date the licence was granted and term of the licence.
Type of natural resource

Mining rights in the NiBiS map server

Implementation in other Federal States

Other Federal States have also created online sites for inspecting mining authorisation books and maps. Examples here are Baden-Wuerttemberg, Berlin and Brandenburg and the Saarland.

Contracts

In some countries, the conditions under which natural resources can be extracted are negotiated directly between the extractive companies and the government agencies and the results of these negotiations are set down in contracts between the parties involved. This is not usually the case in Germany, since the conditions for the exploration and extraction of natural resources are generally validated by law and implemented by the respective competent authorities.

Against this (international) background, the EITI encourages participating countries to promote transparency with regard to these contracts in requirement 2.4 of the EITI standard. The EITI requirement thus requires an understanding of the content and scope of the ‘contracts’ and/or ‘agreements’ (between government agencies and extractive companies) in which ‘conditions’ relating to the extraction of natural resources are specified.

In Germany, the extraction of both free-to-mine and privately-owned natural resources and landowners’ natural resources is subject to a procedural, public-law licensing regime, the content, process and scope of which differs according to the type of the natural resource involved and the size of the extraction operation. Relevant legislation can include regulations on mining law, Federal building law, water law, immission protection and nature conservation laws. The various legal requirements are specified and implemented for the respective mining project through official approvals. The ‘conditions’ within the meaning of EITI requirement 2.4, under which the extraction of natural resources takes place, are defined as part of the approval by the state. This approval procedure in Germany is based on relevant legal requirements, and as such it differs significantly from the private-law contracts practised in many other countries. These aspects must be accordingly considered in the future specification of the requirements of the EITI standard under 2.4.

Competent authorities are already publishing approvals on their websites today, if the project in question requires an environmental impact assessment. In addition, transparency exists with respect to mining rights where the extraction of free-to-mine natural resources is concerned ( read more ). There are currently no statutory requirements for a comparable disclosure of property rights to mining/extraction sites and/or rights of use regarding the extraction of non-free-to-mine natural resources.

In addition, ‘agreements’ may also be of a private legal nature and may be concluded between extractive companies and government agencies. Further terms and/or conditions relating to the extraction of the resources may also be agreed between the contracting parties. In individual cases, contractual agreements regarding the confidentiality of the contract content may preclude any centrally-controlled recording and/or publication of these agreements. However, the provisions for the preparation of a payment report provide an obligation for companies extracting natural resources to disclose payments ‘in order to improve infrastructure’ in § 341r No. 3 of the HGB (German Commercial Code). According to the Institute of Chartered Accountants in Germany (Institut der Wirtschaftsprüfer in Deutschland e.V.), such payments include amongst others those for the promotion of municipal investments or educational institutions, which are, for example, set down in private legal agreements. In this respect, it is assumed that the publication of payment reports will also lead to a disclosure of cash flows from private legal agreements between the extractive industry and the State, but not to a disclosure of the contractual contents of such private agreements. To clarify the exact content-related substance behind this reason for payment, we must await the future analysis of published payment reports and the development of other pertinent legal and/or business issues.

In Germany, the EITI requirement for the promotion of transparency with respect to contracts and agreements between government agencies and extractive companies is currently being addressed and discussed in the MSG.