Where can information about granted licences be found?
Register of licences
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):
- Extraction sites to which the mining right refers
- Date of the application Natural resources extraction totals and granting of the right
- 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
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.