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:
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).
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.
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.
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.
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
|Rights under the old mining laws (West Germany)||Rights under GDR mining laws||Rights under the modern mining laws|
|Description of natural resource||Free-to-mine natural resources||State-owned natural resources||Free-to-mine natural resources|
|Description of natural resource||No||No||Decisions made at Federal state level|
|Time-limited||No||No||yes Mining rights|