German Commodities Sector /

Who is responsible? Laws and the responsibilities of public authorities

The extraction of raw materials is regulated in Germany by the German Federal Mining Act (BBergG). In 1982, it replaced the old mining laws of the Federal States and the numerous ancillary mining laws of the Federal Government and the governments of the Federal States. The overall control of the mining law within the Federal Government is the responsibility of the Federal Ministry for Economic Affairs and Energy. The mining authorities of the Federal States implement the Act and also bear the responsibility for the authorisation and supervision of mining activities (depending on the natural resources in question). The Federal States have passed some of their own mining regulations in order to meet the specific requirements and characteristics of their own regions.

Responsible public authorities

Baden-Wuerttemberg

  • Ministry of the Environment,
  • Climate Protection and the Energy Sector

Bavaria

  • State Ministry for Economic Affairs, Regional Development and Energy

Berlin

  • Senate Administration for Economics, Energy and Public Enterprises

Baden-Wuerttemberg

  • Ministry for the Environment,
  • Climate and Energy.

Bavaria

  • State Ministry for Economic
    Affairs
  • and Media, Energy and
    Technology

Berlin

  • Senate Administration for Economic
    Affairs,
  • Technology and Research

Brandenburg

  • Ministry for Economic Affairs, Labour and Energy

Bremen

  • Senator for Economic Affairs,
  • Labour and Europe

Hamburg

  • Authority for Economic Affairs, and Innovation

Brandenburg

  • Ministry for Economic
  • Affairs and Energy

Bremen

  • Senator for Economic Affairs,
  • Labour and Ports

Hamburg

  • Department of Economic Affairs,
  • Transport and Innovation

Hesse

  • Ministry of the Environment,Climate Protection, Agriculture and Consumer Protection

Mecklenburg-Western-Pomerania

  • Ministry for Energy, Infrastructure
  • and Digitalization

Hesse

  • Ministry for the Environment,Climate Protection,
  • Agriculture and Consumer Protection

Mecklenburg-Western-Pomerania

  • Ministry for Energy, Infrastructure
  • and Regional Development

Lower Saxony

  • Ministry for Economic Affairs, Labour, Transport and Digitalisation

North-Rhine Westphalia

  • Ministry of Economic Affairs,
  • Innovation, and Energy

Lower Saxony

  • Ministry for Economic Affairs, Labour and Transport

North-Rhine Westphalia

  • Ministry for Economic Affairs,
  • Innovation, and Energy

Rhineland-Palatinate

  • Ministry for Economic Affairs, Transport, Agriculture and Viticulture

Saarland

  • Ministry for Economic Affairs,
  • Labour, Energy and Transport

Saxony

  • Ministry for Economic Affairs,
  • Labour and Transport

Rhineland-Palatinate

  • Ministry for Economic Affairs, Climate Protection,
  • Energy and Regional Planning

Saarland

  • Ministry for Economic Affairs,
  • Labour, Energy and Transport

Saxony

  • Ministry for Economic Affairs,
  • Labour and Transport

Saxony-Anhalt

  • Ministry of Economy, Science and Digitalisation

Schleswig-Holstein

  • Ministry of Energy, Agriculture, the Environment, Nature and Digitalization

Thuringia

  • Ministry of Environment, Energy, and Nature Conservation

Saxony-Anhalt

  • Ministry for Sciences
  • and Economic Affairs

Schleswig-Holstein

  • Ministry for Energy Transition,
    Agriculture
  • the Environment and Rural Areas

Thuringia

  • Ministry for Agriculture, Forests,
    the Environment and Nature
  • Conservation

Legal regulation

Germany differentiates between three groups of natural resources in terms of their legal regulation:

  • Free-to-mine natural resources are not the property of the landowner. The exploration and extraction of these natural resources are subject to the BBergG (German Federal Mining Act) and must be approved by the mining authorities of the Federal States in a two-stage procedure: firstly, the granting of a mining license (public-law concession) and secondly, the site-specific approval of the operating plan procedure.
  • Privately-owned natural resources are the property of the landowner and are subject to mining law (see § 2(1), No. 1 BBergG). The prospecting and extraction of these mineral resources does not require any mining authorisation, but is subject to approval by the mining authorities of the Federal States.
  • Landowners’ natural resources are natural resources that are neither free-to-mine nor privately owned. They are the property of the landowner, but are not subject to mining law and the supervision of the mining authorities. The approval procedure for landowners’ natural resources is carried out in accordance with the regulations of the Federal Immission Control Act or in accordance with legal state regulations (e.g. excavation , water and construction laws).
Depending on the Federal State, the natural resource and the type of extraction involved, middle and lower-management levels of governmental bodies are responsible for the landowners’ natural resources category.

Legal division of natural resources in Germany

natural resources
Legal division Free-to-mine natural resources (subject to mining law)Privately-owned natural resources (subject to mining law)Landowners’ mineral resources (not under mining law)
Subject-specific subdivisionEnergy resources: Coal, hydrocarbons (including crude oil and natural gas), geothermal energy Industrial minerals: fluorite, graphite, lithium, phosphorus, all salts that are readily soluble in water, sulphur, barite, strontium, zirconium Metal ores: e. g. iron, copper, lead, zinc ores, etc. Also: All natural resources in the area of the continental shelf and coastal waters (including gravel and natural stones)Industrial minerals: Bentonite and oth- er montmorillonite clays, feldspar, mica, kaolin, diatomaceous earth (dia- tomite), “pegmatite sand”, quartz (quartz sand and gravel) & quartzite (if suitable for refractory products and ferrosilicon production), soapstone, talk and clay (if fireproof and acid-proof). Quarried natural resources: basaltic lava (except columnar basalt), roofing slate, trass. Also: all privately-owned natural re- sources, which have been extracted un- derground (incl. gypsum, natural stone, brick clays etc).Quarried natural resources (in opencast mining): Anhydrite, gypsum, limestone, basalt columns and other natural stones, gravel and sand, quartz and quartzite (if unsuitable for the manu- facture of refractory products and fer- rosilicon) and other natural resources not listed in this table Also: peat
Right of disposal over natural resources These natural resources are “free”, viz., they do not belong to the landowner. Their exploitation requires mining rights and the permission of the mining authorities.
These mineral resources belong to the landowner. The landowner is entitled to use them.
Type of legal regulation
Regulated pursuant to the BBergG (German Federal Mining Act) § 3(3) § 3(4)
Governed by other legal jurisdictions, e. g., Construction Law (Excavation Law). Water Resources Act or State Water Act. Federal Immission Control Act. Federal or State Nature Conservation Act

Own presentation. Partial source: State Geological Service of the Federal Republic of Germany, Securing of Raw Materials 2008

Coal Phase-Out Act

On August 14, 2020, the Act to Reduce and End the Use of Coal for Electricity Generation (Coal Phase- Out Act) came into force.1 The aim of this Act is to phase out power generation from coal-fired power plants in Germany in a socially acceptable manner to reduce greenhouse gas emissions. The use of coal for power generation will be reduced as steadily as possi- ble and will end at the latest in 2038. At the same time, however, it must be guaranteed that the whole population can be provided with secure, affordable, efficient and climate-friendly electricity. The Coal Phase-Out Act provides for the reduction and termination of hard coal and lignite-based power generation, the continuous review of supply security, the cancellation CO2 certificates becoming available, an authorisation to compensate electricity consumers for an increase in electricity rates due to the phase-out of coal-based power generation, and an adjustment allowance for older employees in the coal sector (see State subsidies and tax concessions). The target for the expansion of renewable energies is raised to 65 percent in 2030 to make up for the decline in coal-fired power generation. In addition, the promotion of combined heat and power generation will be extended to encourage the adoption of flexible and more climate-friendly power supply options.2

As a first step, hard coal-based power generation will be gradually reduced between 2020 and 2027. To this end tenders for hard coal power plants participating in the electricity market will be carried out. In the tender, plant operators will have to specify a bid value at which they are willing to withdraw from burning coal in their plant. By participating in the tender, plant operators can receive appropriate financial compensation for the coal phase-out. Small-scale lignite plants up to 150 megawatts (MW) can also participate in the tenders. This procedure is designed to achieve the targets for 2022 (15 gigawatts (GW) of hard coal and lignite each), 2030 (8 GW of hard coal, 9 GW of lignite) and 2038 (zero GW). The possible maximum price per reduced MW decreases from €165,000/MW in 2020 to €89,000/MW in 2027

On November 25, 2020, the European Commission granted approval under state aid law concerning the statutory regulations for reducing and ending the generation of electricity from hard coal.3 To reduce and end lignite-based power generation in Germany, the Coal Phase-Out Act provides for a binding plan for decommissioning lignite-based power plants. Among other things, the Coal Phase-Out Act contains mandatory decommissioning deadlines and regulations on compensation payments for the operators of decommissioned lignite-based power plants. According to these provisions, RWE receives €2.6 billion, LEAG €1.75 billion.4 The legal regulations are complemented by a public law agreement 5 in which the operators of lignite-based power plants commit to the socially acceptable decommissioning of all power plants. The power plants will be closed down between 2020 and 2038 as reflected in Annex 2 of the Coal-fired Power Generation Termination Act (KVBG). Besides the agreement defines conditions for the use of the compensation payments made to cover the post-mining costs and to secure the mining sites, as well as a comprehensive waiver of legal remedies declared by the operators of the lignite-based power plants. In the Lausitz mining region, the compensation payments are made to special purpose vehicles that were set up as part of precautionary agreements between the lignite-based power plant operators and the states of Brandenburg and Saxony (see Dealing with human intervention in nature and landscape).
Both the regulations covering lignite mining and the coal-fired power plants and the public law agreement still have to be approved by the European Commission under state aid law.

Structural Strengthening of Coal Regions Act

The end of coal-fired power generation also means the end of coal extraction in Germany. Whereas hard coal production in Germany already ended on December 31, 2018 (see State subsidies and tax concessions) and the remaining hard coal plants are operated with imported coal, lignite-based power plants are operated exclusively with lignite from domestic production. This production will be reduced in accordance with the decommissioning plan set out in the Coal Phase-Out Act and will end by 2038. The Structural Strengthening of the Coal Regions Act6 came into force at the same time as the Coal Phase-out Act to mitigate the consequences of the phase-out of coal-fired power generation and to promote economic growth in the regions affected by the coal phase-out. Until 2038, the lignite regions will receive grants of up to €14 billion for particularly significant investments that support structural changes in the affected Federal States and municipalities. In addition, the German government will support the regions through further measures under its own responsibility with up to €26 billion until 2038, for example by expanding research and funding programmes, expanding transport infrastructure projects or relocating existing or creating new federal institutions in the affected regions.

Additional support of up to €1 billion will also be provided to hard coal-fired power plant sites in less developed regions where hard coal has been particularly important for economic development.

1  https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*[@attr_id=%27bgbl120s1795.pdf-%27]#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl120s1795.pdf%27%5D__1623399086602
2 See core content of the Coal Phase-Out Act https://www.bmwi.de/Redaktion/DE/Downloads/J-L/kerninhalte-kohleausstiegsgesetz-strukturstaerkungsgesetz.pdf?__blob=publicationFile&v=8
3 Following the approval under state aid law, there will be an adjustment to the tendering system in the future, which will affect the year 2027. The last tender round in 2027 is to be omitted to ensure a consistently high level of competition in the tenders.
4 There is no publicly available information on the calculation of the compensation amounts.
5 https://www.bmwi.de/Redaktion/DE/Downloads/M-O/oeffentlich-rechtlicher-vertrag-zur-reduzierung-und-beendigung-der-braunkohleverstromung-entwurf.pdf? blob=publicationFile&v=4
6 https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*[@attr_id=%27bgbl120s1818.pdf%27]#__bgbl__%2F%2F*%5B%40attr_id%3D%27-bgbl120s1818.pdf%27%5D__1618224258343

LEGAL FRAMEWORK AND REGULATION

Top of page

Share on twitter
Tweet
Share on facebook
Share