German Commodities Sector/Bergbauberechtigungen /

Mining rights

Mining rights constitute the basis for the exploration and extraction of free-to-mine natural resources. Applications are made in the form of a permit, a license or proprietary mining rights.

There are three different types of mining rights:

Permit

The permit is a mining right which grants the right to carry out explorations for free-to-mine natural resources on a specific, permitted minesite. The permit is time-limited to a maximum of 5 years and may be extended for a further three years (see § 16(4) BBergG). A legal entitlement to the granting of a permit exists, unless there are grounds for refusal.

The permit may be refused if, for example, no work programme exists or the fixed time period is not taken into account in the planning. The grounds for refusal are fully itemised in § 11 BBergG. If explorations have not started within one year, for reasons for which the permit holder is responsible, the permit will be revoked (§ 18 BBergG).

MINING RIGHTS

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License

The license is a mining right which grants the right to carry out exploration operations for free-to-mine natural resources on a specific, licensed minesite. The license defines ‘a reasonable period of time for the implementation of extraction in individual cases’. ‘Fifty years may only be exceeded if this is necessary in view of the investment normally required for the extraction’. A time extension is possible (see § 16(5) BBergG). A legal entitlement to the granting of a license exists, unless there are grounds for refusal.

The license may be refused if, for example, it cannot be proven that the resources can be extracted, due to their location and nature (see § 12 BBergG). If extraction work has not started within three years, as a rule, the license must be revoked (§ 18 BBergG). The grounds for refusal are fully itemized in § 12 BBergG.

Proprietary mining rights

Mining may be carried out under these rights. They include the license with the possibility of eligibility as collateral with the relevant easements and mortgages. The license expires when proprietary mining rights become valid. The proprietary mining rights details are entered in the Land Register, viz., the name and address of the applicant and details of the minesite. Proprietary mining rights define ‘a reasonable period of time for the implementation of extraction in individual cases’. ‘Fifty years may only be exceeded if this is necessary in view of the investment normally required for the extraction’. A time extension is possible (see § 16(5) BBergG). If regular extraction of the natural resources is interrupted for more than 10 years, as a rule, the proprietary mining rights must be revoked (see § 18 BBergG). To apply for proprietary mining rights, the applicant must already be in possession of a license for the mine site in question. Proprietary mining rights may also be refused if, for example, evidence cannot be furnished that an economic extraction of the natural resources is to be expected (see § 13 BBergG).

In compliance with §75 of the BBergG, mining authorizations and mining maps are created to document the mining rights. Information about licenses, permits, proprietary mining rights and on the mine sites in question is available in these documents.

Special case: Mining rights under the old laws

The various forms of mining rights described above (permit, licence and proprietary mining rights) are also supplemented by older legal mining rights, which are described as old rights. These are mining rights that were granted before the current Federal Mining Act of 1982 came into force, e.g. for the lignite opencast mines in the Rhenish mining region. Under current law, these rights are still valid (see § 149(1), sentence 1 BBergG) if they were shown to the relevant mining authority during a phase-out period of three years after the Mining Law of 1982 came into force and if they were confirmed by mining inspection authorities. In contrast to mining rights under the new BBergG, rights under the old laws are not time-limited and neither extraction nor minesite royalties have to be paid. In practice, these old rights mainly apply to hard coal and lignite. An operating plan must be approved before these natural resources can be extracted.

Special case: Unique features in the ‘new’
German Federal States

The mining rights system of the GDR only applied to the (communist) state-owned and other mineral resources. The state-owned natural resources mainly comprised free-to-mine and privately-owned resources and were the property of the communist state. Other natural resources primarily comprised landowners’ natural resources and were allocated to the land ownership category. The Bestowal Regulation of 15.08.1990 created the foundation for the conversion of mining rights for state-owned natural resources into free-to-mine resources, which were subsequently recognised by the legal system of the reunited Germany. The transferred mining rights are deemed to be proprietary mining rights. Like the mining rights under old law, the transferred rights are not time-restricted and are also exempt from minesite and extraction royalties (see § 149 and § 151 BBergG). In contrast to the Federal States of the former West Germany, the validity of the old rights (see section on mining rights under the old laws) in the ‘new’ Federal States does not only extend until 1980, but also applies to deposits explored up to and including 1990. These rights also apply to both free-to-mine and privately-owned natural resources. Exploration and extraction rights for privately-owned natural resources were also governed by GDR laws on state-awarded mining rights.

Overview of old mining laws, mining laws in the GDR and modern mining laws

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Glossar

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.
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.
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.
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
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
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).
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).
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.