|
KONRAD MADEJ, KMLegal Law Office
The new Geological and Mining Law Act (the “Act”) shall come into force on the 1st of January 2012. One of the main goals of the legislators was to implement several EU Directives into the Polish legal system, including a further implementation of Directive 94/22/EC of the 30th of May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons. The new regulations bring about a number of changes the key of which shall be briefly described below.
Pursuant to the provisions of the Act, the excavation of aggregate for one’s own needs (without the right to dispose of the excavated aggregate) by the property’s owner who is a natural person shall not require the obtaining of concession, if the excavation does not exceed 10 m3 a year, is made without the use of blasting agents, and does not collide with the property’s assignation. The property’s owner is obliged to inform the starost about the intention of undertaking the above-mentioned activities in writing with a 7-day notice.
A rule was introduced that curative water is a mineral, which means that its excavation shall require a concession, and the Act specifies the criteria allowing to consider specific kind of water as curative, therefore, the former executive act specifying deposits of waters considered as curative has been abandoned. The Act also resigns from the previous division into “basic” and “common” minerals which mattered only exclusively in terms of the scope of competences of administration bodies responsible for issuing the concession.
One of the key changes proposed by the Act is the return to the institution of the so-called “mining property”. The new solution draws upon the idea of “mining property” used in the provisions of the Regulation of the President of the Republic of Poland of the 29th of November 1930 concerning the Mining Law. The “mining property” shall involve the assumption that certain minerals of greatest economic importance will be subject to the “mining property” vested in the State Treasury regardless of the fact whether they can be found within the limits of land property or outside of such property. In addition, the “mining property” vested in the State Treasury shall include parts of orogen located outside of the spatial limits of the land property, particularly those lying within the boundaries of sea territory belonging to the Republic of Poland. It is therefore assumed that some mineral deposits do not form a constituent element of the property, and thus are not covered by land ownership, but they are subject of a separate property right vested exclusively in the State Treasury. The Act enumerates the minerals whose deposits are subject to “mining property”, including e.g. deposits of hydrocarbons, hard and brown coal, ores of metal and radioactive elements, sulphur, salt and precious stones. The deposits of other minerals shall still be subject to land property.
The introduction of the institution of “mining property” results in the resignation from issuing concessions for prospection (identification) of deposits that are not subject to “mining property”, the recognition that the decision approving the geological works project is a sufficient supervision instrument, and the abandonment of the provision enabling the concession body to relieve the concession holder from some concession-related requirements specified by the former act.
The definition of “mining plant” has been amended to exclude devices and installations for the processing of excavated minerals. This shall reduce the costs of processing of excavated minerals. The Act states expressis verbis that underground mining pits and installations and devices placed therein are not “constructions” or “construction devices” as understood by the provisions of the Construction Law. This norm should remove any doubts as to these sites’ being subject to the real property tax which has been the cause of numerous tax litigations in the previous legal regime.
The regulation concerning the cooperation of administration bodies operating on the basis of the provisions of the Act with other administration bodies has been changed to introduce the obligation to take up a position by the latter not later than within 14 days from the delivery of draft settlement under pain of presumption that the lack of position taken up within the stated period of time is considered as the approval of the submitted draft. The principles concerning the method of calculation of the above-mentioned 14-day period have also been described in greater detail, and the Act has adopted the fiction stating that the cooperating body approves the adopted settlement draft if it does not assume any position within the above-mentioned period of time.
The Act retains the institution of so called “mining usufruct”, but some principles concerning such usufruct have been specified in greater detail or amended. It is directly emphasised that the establishment of “mining usufruct” is the only legally permitted form of disposing of the “mining property” by the State Treasury. At the same time the Act has abandoned the currently valid solution according to which the “mining usufruct” expires in the case of expiry or withdrawal of concession, which has solved, for example, the problem of legal title to operations at the area, previously subject to “mining usufruct” during the performance of obligations assigned to the entrepreneur after the concession’s expiry, which necessitate access to this area. This solution allows also for the avoidance of previously held doubts as to the moment of expiry of “mining usufruct” in a situation when the decision about the concession expiry loses its power, which is possible, for example, by way of the administrative court’s sentence overruling such decision. What is new is that in cases not provided for in the Act the laws applicable to “mining usufruct” are accordingly regulations on lease and not, as it is today, on usufruct, which shall consequently increase the State Treasury’s control over the area subject to “mining usufruct”.
The Act states that entrepreneurs who have obtained concession for the excavation of hydrocarbons, hard or brown coal, that is minerals of greatest importance, or for non-tank underground storage of hydrocarbons will be entitled to the buyout of properties needed for this purpose on the basis of market criteria.
Another important new provision states that the commencement of operations specified in the concession is considered as the occurrence of so called “irreversible legal effects”, which is connected to the provision of Article 156 § 2 of the Polish Code of Administrative Procedure that states that the invalidity of administrative decision (including concession) is not found, for example, in the case of occurrence of “irreversible legal effects”. This solution greatly strengthens the legal situation of an entrepreneur who has already started operations subject to concession, because in such situation – despite the existence of premises for the loss of power of a concession – the concession would still remain in force. In addition, the annulment (change) of concession as a result of resumption of proceedings would not be possible after the lapse of a year from the day of commencement of operations stated therein. However, in the above-mentioned situations it is still possible to ascertain the issuance of questioned concession with the violation of the law, which will enable the execution of potential remedy claims in general court by all those who sustained damage as a result of the faulty concession decision.
The Act abandons the obligation of preparation of local spatial management plan for the mining area. The commune’s bodies can pass a resolution concerning the preparation of such a plan (for the entire mining area or its part), if the results of the intended operations specified in the concession envisage considerable impact on the environment.
The Act also introduces several new principles concerning the production fee. The rates of this fee will result directly from the Act, and the settlement period with regard to this fee has been extended to six months. It is also envisaged to introduce the so-called “additional fee” for activities conducted in violation of the conditions specified in the concession or the approved geological works project, and the so-called “raised fee” for activities conducted without the required concession or approved project, both independent of “regular” fees set pursuant to the geological and mining law. The additional and raised fees are just sanctions for a violation of the law.
With reference to damage caused by the traffic related to mining plant the deadline for filing claims has been extended to 5 years. The currently valid act does not specify the statute of limitation with regard to such claims. Consequently, it is regulated by the Polish Civil Code, which means that, in case of disputes between entrepreneurs, it is 3 years. Another very important change is the possibility of choosing the form of damage remedy by the claimant, that is restoration to the previous condition or pecuniary compensation. So far the act has imposed the restoration to the previous condition.
|
