Comparative analysis on the regulation of mineral resources in the member states of the European Union.
As a general category, mineral resources include metals (gold, copper and iron), non-metallic minerals and mineral rocks (limestone, salt etc.). Oil, natural gas, coal, gravel and peat are also included in this general category.
Mineral resources rights and legal systems which govern the exploration and exploitation are the focus of current specialist studies. Requirements related to mineral resources rights entail the right to that land, which means that access to land is a crucial aspect of the problem.
It is well-known that minerals are crucial for the development and the functioning of society. The European Union, a major consumer of minerals, is therefore dependent on the metallic minerals. In 2008, the European Commission proposed a strategy on raw materials based on three criteria: to have equal access to raw materials on the world market, to promote the sustainable purchase of raw materials from European sources (by setting up an appropriate legal framework) and to reduce the consumption of basic raw materials at EU level (The raw materials initiative--Meeting our critical needs for growth and jobs in Europe (COM) (2008) 699 and Commission Staff Working Document, Analysis of the competitiveness of the non-energy extractive industry in the EU. (SEC) (2007) 771).
The Commission has published a roadmap for the policy of optimization of the use of resources, making an important step in implementing a key objective of the EU 2020 Strategy. The document identifies the sectors that consume the most resources, bringing to the fore a new development model based on recycling and more efficient product design.
The idea of reducing dependence on imported raw materials also appears in the EU 2020 Strategy and the European Raw Materials Initiative from 2008. The raw materials initiative is based on three criteria: ensuring a level playing field regarding the access to resources in third countries; fostering the sustainable supply of raw materials from European sources, as well as boosting resource efficiency and promoting recycling.
The Commission has identified 14 critical raw materials at EU level and developed an innovative, pragmatic and transparent methodological approach to define the "criticality" of raw materials. Critical raw materials are those that pose a particularly high risk of a supply shortage in the next 10 years and which are particularly important in the value chain.
The EU has taken steps to improve its knowledge basis regarding current and future deposits of numerous important raw materials and to stimulate the extractive industry to provide new products for the manufacturing industry in the context of the Seventh Framework Programme for Research and Development. Projects have been funded regarding the development of advanced underground technologies for intelligent mining, projects regarding the substitution of critical raw materials such as rare earths and platinum group metals as well as projects regarding the coordination of activities of Member States in handling industrial raw materials through the ERA-NET.
The development of the concept of "bio-refinery", that will contribute to the development of new products with high added value, has been supported; European Technology Platforms regarding Sustainable Mineral Resources and the technology of the forest sector are important tools to stimulate new research efforts in the field of raw materials.
On 2 February 2011 the Commission adopted a new strategy based on the 2008 Communication, which aims to implement a set of measures designed to secure and facilitate access to raw materials for EU states (Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Tackling the challenges in commodity markets and on raw materials--COM(2011) 25 final). This Communication presents an overview of the results achieved in each of the areas studied (global commodity markets and the raw materials initiative) and the measures meant to carry this work forward, which is part of the Europe 2020 Strategy of ensuring smart, durable and favourable to the inclusion and it is closely linked to the flagship initiative for a resource-efficient Europe in terms of resource use (COM (2010) 2020, "Europe 2020" and COM (2011) 21).
2. National European Mining Legislation
The right of mineral assets is governed by specific legislation in many states. Depending on the ownership or concession law and control, there are three fundamental regulatory systems: land ownership system; concession system; claim system--request to extract minerals on public land.
In the land ownership system, the right to use and exploit minerals shall be exercised in respect of ownership. The other two systems, the state guarantees or confers the role over mineral resources or this right is "taken" by occupancy by the person who uncovered that resource. The basic principle in the land ownership system is that any mineral resource belongs to the owner of the land on which the deposit was discovered. The system derives from Roman law. This also applies today to some non-metallic minerals or basic construction materials (stone, sand, gravel). In Sweden, for example, minerals that are not specified in the Mining Act constitute what is called "the owners' minerals" (limestone, sand, gravel). In Ireland, "unregulated" minerals not covered by any specific legislation (stone, sand, gravel) belong to the landowner. In Germany, the Federal Mine Law distinguishes the "owner's mineral resources" from a list of "free minerals" (Pielow, in Bastida et al., 2005: 1037).
In the concession system, the right to explore and exploit mineral deposits is conferred following an assessment carried out by a national authority. The system has its roots in decisions made during the French Revolution, according to which all mines must be available to the nation, in that they cannot be exploited without its consent (Liedholm Johnson, 2001: 280). The concession system is centred on the idea that the state or the nation has the right to dispose of mineral resources; the state has the decision power over the person / persons receiving concession rights. The degree of fairness varies depending on the system. France, Belgium and Portugal are "classical" examples of states in which the concession system has influenced the legislation referring to mineral rights.
The third alternative, the claim system, means that anyone who discovers a mineral deposit can, in compliance with current regulations, require sole right of exploitation. The system originated in Germany in the Mining Act in the 15th and 16th century. We can distinguish in this system two different theories: the regalian and the res-nullius. According to the regalian theory, prevalent during the Medieval period, the state guaranteed its right over the minerals to the person who requested such a thing. According to res nullius theory, minerals did not belong to anyone until their discovery, so we can speak about a right of occupation (Liedholm Johnson, 2010: 123). This system is mainly aimed at stimulating the prospecting and exploitation of mineral deposits, being associated with a lower degree of discretionary considerations, as in the case with the second system. The mineral rights is guaranteed to the one who discovered them first (first come, first served!); that person has preemptive right of l. The system is common for US, Canada, New Zealand or Australia.
The differences between the concession system and the claim system are not so transparent in practice. The concession system exists to establish a more visible control of society with respect to the claim system (Liedholm Johnson, 2010: 95/ There is also the possibility of a mixed system, as it is in Sweden, where the Mining Act is based on the concession system, but is combined with strong elements from the other system. Historic traditions, economic policy and legal considerations can influence the choice of system which governs the legislation regarding mineral resources (Liedholm Johnson, 2010).
The fundamental problem in understanding the issue of exploitation of natural resources is to eliminate any confusion regarding ownership systems/ concession. If the state owns mineral resources, it can lease the mining rights or can choose the concession system or the claim system.
Ownership over the right of extraction of certain minerals varies from country to country; a clear distinction is made between those minerals which are considered to be of strategic/national importance, hence the right to exploit or to dispose of this right belongs to the state or nation, and other mineral rights which an owner has. A legal distinction also has to be made between the rights over the soil and subsoil, the state usually having the ownership or control right of the subsoil. Regarding the private owner, there are no clearly established procedures to obtain the right over the resources, these being made through private agreements. In contrast, while the state owns or controls the rights to mineral resources, in most countries there are clearly established procedures, most through specific legislation or mining agreements.
In Sweden and Finland the state has a decisive influence on the introduction of certain mineral resources in the law, regardless of type of ownership over that respective mining field. In Finland more minerals are included than in Sweden. Mining law is put into practice by the administrative authorities. The degree of exploration and exploitation of mineral resources varies depending on the administrative regime, but also according to different traditions.
Mining activities have become and are becoming increasingly linked with environmental protection requirements, which are done in collaboration with the authorities responsible for the environment. In Sweden, for example, where the administrative system is highly decentralized, Inspectorate for me (Bergsstaten) is the authority in the field; the Chief Inspector is the one who is in charge of resolving any disputes that may arise between landowners and mining companies. Decisions taken under the Mining Act can be appealed through the competent courts (fastighetsdomstolen or allmun forvaltningsdomstol).
In the early exploration stage, no exclusive rights are granted. In Sweden exclusive rights for early prospection are not usually granted. The right of prospecting is a common right, which was recently guaranteed by the constitution and can be described as the right of every individual to obtain, under certain conditions, access to areas of land and water of others in order to gather certain natural products/food. An exploration permit is required if the prospection violates the rights of the owner of that land. In Finland there is also the public right of access, regarded as a common law, which means that anyone can perform prospections, geological and geophysical measurements needed for the future extraction of minerals. But before taking samples, a permit is required from the local administrative authority (registerbyran, magistratet). In areas where public access is explicitly prohibited (gardens, churches land, concessions), prospecting is conducted only after receiving permission from local authorities (Liedholm Johnson, 2010).
In the stages of exploration or prospecting, several permits are required for detailed investigations, digging ditches and other similar activities. These rights are secure, exclusive and insured through authorizations' for the prospection, exploration, exploitation due to high costs of the investments and the risks of failure. A prospecting license is granted to prospect for minerals on relatively small surfaces. An exploration license allows the exploration of large areas of land, which is defined in the Mining Act. The process of obtaining the right to exploration of mineral resources is obtained through the individual request of an applicant and a guarantor. Anyone of age and legal capacity may apply for the right to explore mineral resources. There are no restrictions for foreigners, even though some formalities must be fulfilled. A common political line of mining legislation is granting the possibility of exploration to various parties, individuals or mining companies. In case more than one person is interested in the same portion of land, the mining traditions follow the principle of "first come, first served", a system that applies in all other states.
All mining legislation contains classic restrictions which are applied to the rights of exploration, and also to the permits from the local authorities, to landowners or other concessionaires. The issue is more complicated in the case of protected areas. If the land is of utmost public importance, it can be excluded from the grant of such licenses. Protected areas are covered by specific environmental legislation, which must be put in agreement with the mining legislation.
Most states, except Sweden, impose limits on the maximum area that can be granted for concession or exploration rights, which is stated in the law, in addition to the period for which such a license can be granted. Overall, the importance of establishing the initial right to property is related to its legal consequences, namely the methods of accessing the rights to the mineral resources. (Liedholm Johnson, 2010: 220)
In Austria (see http://minerals.usgs.gov/minerals/pubs/country/2013/ myb3-2013-au.pdf), the legislation consists of the Federal Law of mineral resources (Mineralrohstoffgesetz-MinroG), which entered into force on 1 January 1999 and has been amended several times. The Mining Law applies to the activities of exploration, production and processing of mineral resources in the country, the maintenance or the reinstatement of abandoned mines etc. Three Laws of environmental legislation (the Remediation Act of 1989; the Environmental Information Act of 1993 and the Environmental Impact Assessment Act of 2000) are directly applicable to mining activities.
According to the Mining Law, mineral resources are divided into three categories:
Bergfreie (free mineral raw materials)--for the resources in this category, the licensee has the ownership of those mineral deposits on which there is an operating license. This category includes ores, such as iron ore and tungsten; schists; industrial minerals, including clays (such as bentonite and kaolin), graphite, gypsum, kaolin, limestone and marble containing at least 95% calcium carbonate, magnesium, talc, silica sand containing at least 80% Si[O.sub.2].
Bundeseigene (state-owned mineral raw materials)--the resources in this category are state property and include fossil fuels such as oil and gas, and related materials, such as uranium; salt is also part of this category.
Grundeigene (other mineral raw materials)--the resources in this category are the property of the landowner; this includes stone, sand, feldspar and the type of gravel not included in the first category. The landowner has to obtain a license in order to proceed with the exploitation of these mineral resources.
The domain is regulated in Belgium by the Mining Law of 21 April 1810 and the Mining Decree of July 7, 1988 (see http://geologie.wallonie.be/ cms/site/geoprod/lang/fr/soussol/exploitations/ssol_expl_mines/ssol_mines_ concessions).
From a legislative point of view, the following are considered mineral resources: silver, mercury and platinum (which are not known and exploited on Belgium's territory), gold, lead, vein iron or ore iron, zinc, bismuth, cobalt, arsenic, copper, antimony and other metal materials, asphalt, fossil coal, bituminous rocks. Unlike other countries, such as France, in Belgium phosphates are not considered mineral resources, therefore they can be exploited without a concession, in quarries.
In the mining field, the concept of concession is different from the classical definition of a concession, that of a document through which an authority or a public institution, under certain conditions and for a limited period of time, authorizes the exploitation of natural resources of a public establishment or the execution of certain activities on public domain by a third party.
The documents of concession give the landowner of the terrain on which the mine is located the right to fixed and proportional royalties and the concessionaire true and perpetual property rights over the mine and, consequently, the right of exploitation, the right to dispose of the products of the mine and in addition, the right to occupy or expropriate land under certain conditions. By virtue of that exclusive right, concession, whether it is active or not, has only one exploiter and only one recognized as such by the State and its administration--the concessionaire. One of the main objectives which the Belgian mining legislation has to satisfy is managing to be in line with environmental requirements, economical needs and social safety.
Finland (Kortman et al., 1996: 8) has deposits of chrome, cobalt, copper, iron, lead, nickel and zinc; it is an important processor and refiner of copper, nickel and zinc. Most of the mining operations or companies are owned by foreign companies. Only Kemi and Talvivaara have Finnish ownership. The extractive industry has reborn in Finland; a few new mines have begun to operate. Finland is a typical new mining country, in which the mining projects are in the development stage and the competition is fierce. Anyhow, the number of mines and operations has increased and it is expected to increase further. According to a study made by the Fraser Institute, Finland is the second most attractive mining country, due to the availability of geological data, infrastructure and stable and transparent policy in the field.
One of the main objectives of the central administration is to turn Finland into pioneer of mining sustainability, by permanently adapting the environmental requirements to the specific activity (see http://www.pwc.fi/fi/ julkaisut/tiedostot/pwc-mining-overview-october2012.pdf). The Finnish mining sector consists of two types of companies: small operators of sand and gravel and a small group of large companies operating in the field of metalliferous and industrial minerals (http://minerals.usgs.gov/minerals/pubs /country/2011/myb3-2011-fi.pdf).
The mining activity is regulated in all its stages. Besides the Mining Act, the legislation regarding the environment, waters and protection of nature, constructions, fire prevention, health and safety of the population, protection from radiations must be taken into consideration. The mining operators follow the legal provisions, as well as the mutually agreed codes of good practice. The Mining Act is applicable to metals, minerals, soapstone and marble. The New Mining Act came into force on July 1st 2011 (see, http:// www.finlex.fi/fi/laki/kaannokset/2011/en20110621.pdf), abrogating the provisions of 1965 Mining Act. The purpose of the law is to promote mining and to organize the use of mining land, as well as its prospections, in a socially, economically and environmentally sustainable manner. The obligations in terms of processing and licensing mining activities were transferred from the Ministry of Labour and Economy to the Finnish Safety and Chemicals Agency (Tukes). The buyback and granting licenses for the extraction of uranium and thorium are provided by the Finnish government.
If this activity may result in material damages or if it is not possible to obtain consent from the landowner, an exploitation license is required. The exploitation license is granted for a 4-year period, which can be prolonged for another three years; the entire exploitation period cannot exceed fifteen years. The Ministry of Labour and Economy is in charge of guiding, monitoring and development of mining activities. The Finnish Safety and Chemicals Agency is the competent mining authority.
According to Section 7 of the Mining Act, the right to take geological measurements, to issue observations and collect samples in order to identify minerals for extraction is generally acknowledged if such right does not cause damages or create major inconvenience. Prospecting activities cannot be performed:
--in cemeteries, on private land related to the graves or less than 50 meters away from them;
--on land used by the army, border police, where access is forbidden or restricted to less than 100 meters in the respective area;
--on land to which access is completely forbidden or restricted;
--on a road or public traffic passage;
--within less than 150 m from a building designed for inhabiting or work purposes, from any similar space, from any private yard or plot on which the authorized construction of a building is initiated, under the terms of the law;
--on horticultural land;
--within less than 50 m from a public building or facility, power grid at over 35,000 V or an electrical substation.
Sections 16 to 18 of the Mining Act stipulate that opening a mine and the development of mining activities can only be executed if a mining license is issued. The holder of the mining license has the right to exploit:
1) extraction minerals discovered in the area:
2) organic and inorganic surface matters, excess rocks and gangue generated by the mining activity;
3) other rock and soil-related materials, to the extent in which their use is necessary for the mining operations.
Moreover, the mining permit also grants the holder the rights to exploitation activities in the respective area, according to the provisions of the law. Several sections of the Mining Act refer to the types of activities performed within the limits of the gold panning permit. The environmental legislation stipulates the issuing of permits in the mining field by regional state administrative agencies and by the environmental protection agency of the local municipality. The environmental permits for mining purposes are issued by regional state administrative agencies, which are in charge with issuing the environmental permits.
The environmental impact assessment (EIA) applies to the projects that may have significant negative impact on the environment, as well as to any modification made on these projects. The Centre for Economic Development, Transport and the Environment (ELY Centre) decides when the EIA procedure is applied. Such a procedure is almost invariably necessary for any mining projects. The impact of a project on the environment must be investigated using an EIA procedure, before taking any other action with impact on the environment.
A key objective of the EIA procedure is to collect information regarding the impact of the project on the environment and the human beings, in order to assess these effects when planning the project. Another objective is to enhance the opportunities of the citizens and of other stakeholders to participate and to have a say in the planning process. During the EIA procedure, no decisions concerning the project are made and no permits are issued.
The project operator starts the assessment procedure by presenting its assessment program before the coordinating authority. The operator is responsible for the preparation of the assessment program, performing the required investigations in order to assess the impact and issuing the final assessment report regarding the impact on the environment. In ample projects, with various types of impact, the services of external experts and environmental consultants are often requested.
As coordinating authority, ELY Centre is in charge with the public notices, handles the required statements concerning the assessment program and the assessment report are requested and that an opportunity is created for the expression of various opinions. The coordinating authority collects the statements/opinions submitted and issues its own statement regarding the assessment program and the real assessment report. The assessment procedure is finalized when the coordinating authority submits its statement and the other statements and opinions to the project developer, the authorities handling the project, the local authorities in the impact area, as well as other competent authorities.
In terms of duration, EIA varies from less than 1 year, to over 2 years, depending on the field of required investigations. The procedure can be prolonged if, for example, biological studies and measurements can only be made onsite, in the summer. The responsibilities of the coordinating authority are determined by the applicable law. A statement regarding the assessment program and the assessment report must be submitted to the developer within 1-2 months since the date set for the submission of statements, respectively opinions.
Mining legislation in France allows the state to grant the rights to mining exploitation, under the terms of the law, as mines are considered part of national wealth. The French mining code was introduced through the Decree published on August 16, 1956, and it was modified several times. The Code provides access to the mineral resources and outlines the research, exploration, operation conditions, in order to observe the environment, health and security. The fundamental stipulations of the Code are the ones referring to the separation of the operation of mines from the operation of quarries, the possibility to grant exploitation rights even in the absence of an approval from the owner of the mining land, separation of the status of authorizations (mining title, concession, exploitation permit granted by the state) from the status of the mine police, which depends on the local authority (supervision, protection of goods and people etc.).
The Code defines the mineral resources whose public utility justifies the possibility to have access to the land resources required for exploitation. The term mine refers exclusively to the type of resources to be exploited, on the surface or in depth, respectively the fuels (oil, petroleum, gas), certain metals (nickel, iron, gold, lead) and other materials which can be used at industrial level (uranium, carbon dioxide, sulphur, salt). Certain materials mentioned as relevant for the mining activity are considered quarry materials. The quarry products are mostly used in constructions and public works: crushed hard rock, sand, alluvial rocks or rocks from maritime deposits.
The Code provides an exploitation operator with the possibility to perform exploration works, by obtaining a permit exclusively for exploration, an authorization for preliminary prospecting or research authorization for geothermal springs, an exploitation concession, in the absence of an authorization provided to the land owner. The mining title allows the acknowledgement of the real rights for the entity discovery a deposit (entity referred to as "inventor" in the legislation), but it does not allow opening the exploitation works, which are subject to a special procedure. The mining title is granted by the Minister of mines to the requester that provided proof of the technical and financial capacity to capitalize the mineral resources.
Distinction must be made between the mining title received following certain research/exploration activities, without the existence of certain impact studies, from the exploitation license, which can be received after submitting a file, which comprises the impact studies and after a public investigation was made. The authorization to open works is granted by the prefect. The general measures and rules envisaging the exploitation of a mine can be enforced by decree or ministerial order or by decision made by the prefecture responsible for the respective deposit.
In France, the mine police force is ensured by the engineers and technicians managed by the general manager for environment and land management; they also ensure the labour inspection in the mine. The mining regulations also include supervision procedures concerning the mining risk and stipulate all the necessary measures to prevent the effects of any potential damages (settlement of the ground, floods, discharge of pollutants etc.), as well as the execution of preliminary studies regarding the risks, the impact on the ground (cinders, demolitions, preventing the risk of water pollution etc.). The Code renders the former holder of the mining concession liable without time limitation for the damages that the exploitation of mineral resources may cause. In case the former holder cannot ensure the remedy of the damages, the state handles this process.
The Federal Mining Act of 1980, with the subsequent amendments and additions (Bundesberggesetz--http://www.juris.de/purl/gesetze/_ges7B BergG), sets the basis of the mining activity in Germany. The production of certain minerals (gypsum, anhydrites, stone, sand, gravel etc.) is not regulated by the Mining Law, but by the regulations at the level of the states or at federal level. The setup of the Federal Mining Inspectorate was not set through the Mining Law, but on the basis of art. 83 of the Basic Law. In 2011, the federal program focused on eliminating the subsidies for coal mining, which will be definitively eliminated by 2018.
On October 20, 2010, the government launched a new strategy regarding the raw materials. The main objectives of the new raw materials strategy are removing barriers hindering commerce and loyal competition, supporting the industry in order to diversify the sources of raw materials, supporting the industry in the development of ecological economic activities, with strong social impact and improvement in the efficient use of mineral resources.
The Federal Mining Act is based on the following principles:
--distinction between what is an integrating part of the soil (grundeigen) and is not an integrating part (berfrei);
--most of the raw materials covered by law (metals, salt, coal, lignite, petroleum, natural gas etc.) are not part of the ownership over the land;
--raw materials not included in the act do not have an initial owner (herrenlos);
--few raw materials (sand, gravel, natural stone and peat) are exempt from these regulations and are considered property of the land owner.
The federal law regulates the exploitation, extraction and processing of natural resources, as well as the rehabilitation of the surfaces affected by the mining activity (recultivation of land on which the old mines were located, reforestation etc.)
The mining exploitation in Poland is still limited to traditional forms (mostly exploitations of copper, anthracite and lignite ores); therefore, the regulations regarding the mining exploitation are not adjusted to the mining activities which envisage unconventional extraction sources. The Geological and Mining Law clearly stipulates who has the property right over the mineral deposits, certifying that the property right over the mining operations only belongs to the State Treasury, while the mineral deposits which are not listed in the stipulations of the law are envisaged in the legislation regarding property over land. Thus, it can be stated that, as a rule, the land owner (with a few exceptions) is not allowed to exploit the specified minerals from deposits within the boundaries of its property since, subject to the property over mining, they are property of the State Treasury. The State Treasury can use the object of the mining property or can waive its right only by establishing the right to mining usufruct.
The right to mining usufruct is established through the conclusion of a written agreement between the State Treasury, represented by the competent authorities with licensing rights (Minister of Environment, guild master, voivodship marshal) and the entity requesting that the right to mining usufruct be established. Such a contract is concluded for a period of maximum 50 years. This agreement establishes the remuneration in order to establish the right to mining usufruct, as well as the payment method. It also stipulates the deposit of minerals and the location in the area, as well as the manner and reasons for contract termination. The agreement in itself is not sufficient to start the mining activities for which the adequate license/permit is required.
The concept of mining property accepted in the Polish legislation as a separate property right, to which only the State Treasury is entitled, without referring to the property right over the land, is clearly different from the solutions used in other legal systems, in which the decisive factor in the process of establishing the usage right over the mineral deposits within the boundaries of a property is the property right over the respective land. The activities related to the exploration or prospecting of the mineral deposits mentioned in art. 10 letter A of the Mining Law (including hydrocarbons, coals and ferrous ores), the exploitation of minerals in deposits, the subterraneous storage of substances in non-reservoir system and the subterraneous storage of waste products can be executed only after obtaining a license.
The development of mining activities requires that the entrepreneur observe not only the rules resulted from obtaining the license and the provisions of the law, but also the regulations specified in other domains of legislation, especially concerning land management and environment protection. The effects of activities stipulated in the license on the environment are defined in the eco-psychographic study prepared for the necessity to study the conditions and directions for space development of the location and for the local spatial development plan, as well as based on the plan of deposits management. Usually, a local spatial development plan must take into account the development of mining activities in the locality, by the entrepreneur, but it can also impose certain rights and restrictions to the entrepreneur. In practice, it usually refers to the prevention of mining damages, deterioration of landscape, environment protection and water management.
In Portugal, the state has full property rights over all the mineral resources in the soil, subsoil, inland waters, territorial sea, exclusive economic area and continental platform. Law-decree no. 90, dated March 16, 1990, regulates the mining activity: prospecting, exploration and exploitation, with the exception of petroleum. Law-decree no. 88, dated March 16, 1990, particularly defines the stipulations regarding the ore deposits, including all the metallic and radioactive ores, coal, graphite, pyrite, phosphates, asbestos, talc, argil, quartz, precious and semiprecious stones, potassium salts and salt rock. The same law-decree divides the mining activity into 2 main subgroups: 1) prospecting and exploration and 2) mining exploitation.
According to the legal provisions in force:
--the term "mine" defines the ore deposit, the mining outbuildings, works and immovable, used for exploration;
--"prospecting and research" include activities envisaging the discovery of mineral ores and establishing their characteristics;
--"exploitation" includes the prospecting and research activities, preparation and extraction of raw ore, as well as processing activities.
The duration of concession contracts for prospecting and research is of 5 years, with a prolongation option, in exceptional circumstances. Concerning the exploitation, the term of the concession is not stipulated by law and it is agreed upon between the parties. Contracts with a duration of 50 years and prolongation of 20 years are not uncommon. There are no restrictions regarding the foreign investors or their discrimination. In addition, there is no obligation to have a national partner and there are no specific obligations for the foreign investors.
Fiscal incentives are available for investments of at least EUR 5 million, executed by the end of 2020 and considered relevant for the development of sectors important for the national economy and for the reduction of regional asymmetries, as well as from the perspective of creating new jobs. The incentives are valid for a period of maximum 10 years and they can be 10% to 20% cuts on the corporate tax, exemption or reduction of the property tax, transfer tax or stamp duty. The incentives are available for development and research, exemption on capital gains obtained by non-investors and revenues from securities.
Romania is known as a country with special potential in the field of mineral resources, specifically petroleum, natural gas, salt, gold, silver and ferrous and non-ferrous metals. From the historical viewpoint, the extractive industry in Romania was often a leader in the development of this industry in Europe, providing new methods to identify and assess the mineral and oil resources, methods which subsequently proved to be of major importance in the entire world. At the same time, the legal framework established by the mining and oil legislation in Romania, as well as the tax system in our country proved to be attractive for the Romanian and foreign companies active in the exploration and exploitation of natural resources. This interest resulted in the issue of numerous licenses for the development of the mining activity of exploration and exploitation, as well as in the conclusion of several oil concession agreements, following the tenders organized by the National Agency for Mineral Resources.
Currently, the mining activity in Romania is regulated by the Mining Law no. 85/2003 and the methodological regulations to enforce it, approved by Government Decision no. 1208/2003, representing the primary legislation in the field. The two regulations set the following:
--procedure for the approval and issuing of prospecting permits, exploration licenses, exploitation licenses, as well as exploitation permits;
--procedure to assent exploration and exploitation activities for useful mineral substances;
--system of mining taxes, fees and royalties and of the financial guarantee for environment rehabilitation;
--access to data and information regarding the Romanian mineral resources;
--conditions of organization and development of the public tender for the concession of mining activities.
Mining Law no. 85/2003 regulates the development of mining activities in Romania, stimulating the capitalization of mineral resources, which are public property of the state. The law ensures maximum transparency of the mining activities and loyal competition, without discrimination among the forms of property, origin of capital and nationality of the operators. Mining investments are encouraged through fiscal and administrative facilities free from any constraints concerning reimbursement.
The mineral resources subject to the law are the following: coal, ferrous ores, non-ferrous ores, aluminum ores and aluminiferous rocks, noble metals, radioactive metals, rare and disperse soils, haloid salts, useful non-metalliferous substances, useful rocks, precious and semiprecious stones, peat, therapeutic muds and peats, bituminous rocks, non-combustible gases, geothermal waters, gases accompanying them, natural mineral waters (gaseous and flat), therapeutic mineral waters, as well as the mining waste product in waste heaps and tailing management facilities. The stipulations of the law also apply to the subterraneous drinking and industrial waters, for the activities of prospecting, exploration, establishing and recording the reserves.
Irrespective of the storage manner, all the data and information regarding the Romanian mineral resources are provided to the competent authority and belong to the Romanian state, their records and management being handled by the competent authority, at national level. The license or permit holders can only use the data and information collected in their own interest, for the entire duration of the mining activity; dissemination of the data and information regarding the mineral resources in Romania to other interested parties is only made with the approval of the competent authority.
The competent authority, the license/permit holders, as well as other public authorities and institutions with attributions in enforcing the mining law have the obligation to maintain the confidentiality of data and information transmitted by the holders of licenses and/or permits, of which they are aware when executing the work-related tasks, during the entire period of mining activities.
According to art. 6 of the Mining Law, the right to use the land required for mining activities in the exploration/exploitation perimeter is acquired according to the law, by means of:
a) sale-purchase of land and, as the case may be, of the constructions on it, for the price agreed upon between the parties;
b) exchange of land, accompanied by displacement of the affected owner and reconstruction of buildings on the newly-granted land, at the expense of the holder benefiting from the cleared land, according to the agreement between the parties;
c) lease of the land for a determined period of time, based on contracts concluded between the parties;
d) expropriation for public utilities, according to the law;
e) concession of lands;
f) association between the land owner and license holder;
g) other procedures stipulated by law.
Art. 11 of the law sets that the execution of mining activities on the lands hosting historic, cultural and religious monuments, archaeological sites of particular interest, natural reservations, areas of sanitary protection and perimeters of hydrogeological protection of the water supply sources, as well as the easement right for mining activities on such lands are strictly forbidden. The exceptions from the abovementioned stipulations are set by Government decision, with the assent of the competent authorities in the field and setting damages and other compensatory measures.
Mineral resources are capitalized through mining activities leased to Romanian or foreign legal entities or are assigned for administration to public institutions, by the competent authority, according to the law. The prospecting process is executed on the basis of a non-exclusive permit, issued according to the law by the competent authority, based on the reception of a written request, for a perimeter defined through topo-geodezical coordinates. The shape and dimensions of the prospecting perimeter are determined by the competent authority. The prospecting permit is issued for a duration of maximum 3 years, without prolongation rights, with anticipated payment of the prospecting activity tax, each year. The prospecting permit holders have the obligation to execute works with a minimum value to be determined by negotiations with the competent authority, when the prospecting permit is issued, correlated with the validity of the permit and the surface of the prospecting perimeter.
The exploration is based on an exclusive license, granted for any of the mineral resources discovered on the perimeter, by request, to interested Romanian or foreign legal entities. The exploration license is granted to the winner of a public tender, organized by the authority for the mineral resources established in an order issued by the said competent authority. The initiative to lease the mining exploratory activities may belong to the competent authority or the interested Romanian or foreign legal entities and the list of exploration perimeters is established by the competent authority, through an order published in the Official Gazette of Romania, Part I. The exploration license is granted for a duration of maximum 5 years, with prolongation right for maximum another 3 years, within the limits of the assigned perimeter, with the anticipated payment of the exploitation activity tax each year and establishing an adequate financial guarantee for environment rehabilitation, stipulated in the environment rehabilitation project.
The mining exploitation is based on an exclusive license, which is granted according to the law. The exploitation law is granted:
a) directly to the holder of the exploitation license, by request, for any of the mineral resources discovered, within 90 days since the date of transmission of the final exploration report accepted by the competent authority, to the latter;
b) the winner of a public tender organized by the competent authority, according to the law.
According to art. 20 of the Mining Law, the exploitation license is granted through negotiation, based on a request accompanied by:
a) the feasibility study regarding the capitalization of mineral resources and protection of ore, which will also include the initial activity cessation plan, elaborated according to the regulations issued by the competent authority;
b) the exploitation development plan elaborated according to the technical instructions issued by the competent authority;
c) the environmental impact study and the environmental balance, as the case may be, elaborated according to the law;
d) the environment rehabilitation plan and the technical project, elaborated according to the technical instructions issued by the competent authority;
e) the social impact assessment study and the social impact attenuation plan, according to the technical instructions issued by the competent authority in the field of labour and social solidarity, together with the line ministry.
The exploitation license is granted for a period of maximum 20 years, with prolongation rights for successive period of 5 years each. The holder of the exploitation license will pay an annual tax for the exploitation activity and mining royalties, according to the law. The holder of the exploitation license establishes a financial guarantee for environment rehabilitation, according to the technical instructions issued by the competent authority. The right acquired by concession, distinct from the property right over lands, can under no circumstances be transferred by the holder to another legal entity only with the prior written approval of the competent authority. Any transfer made without written approval is null de jure.
The holder of the exploration/exploitation license can acquire bank loans in order to execute mining activities, provided it certifies the existence of the concession received from the competent authorities. The rocks usable in constructions and the peat accumulations can be extracted by natural persons or legal entities, in determined quantities, for a duration of up to a year and based on an exploitation permit issued by the competent authority. The permit is issued to the first applicant. For exploitations of sands and gravel on minor riverbeds, the exploitation permits are issued after obtaining the assents stipulated by the legislation in force, in the field of water management. In order to receive the exploitation permit, the applicants have the obligation to establish the financial guarantee for environment rehabilitation, as well as the obligation to pay the tax on exploitation activity and the mining royalty, according to the law. The financial guarantee for environment rehabilitation and the tax payment are performed at the date when the permit is issued, while the mining royalty is paid in stages, during the validity period of the exploitation permit.
According to the law, rocks usable in constructions, peat and mineral waters located on land surfaces owned by natural persons can be used by the owner of the surface only if they are not the scope of an existing concession and only for the owner's needs, without trading rights. The use is exempt from taxes and legal royalties, on condition that the territorial bodies of the competent authority are notified. The stipulations also envisage orphanages and retirement homes located on land surfaces owned by the former. The holders of licenses/permits have the obligation to pay a tax to the state budget, as well as mining royalties, for the prospecting, exploration and exploitation of mineral resources.
According to art. 54 in the Mining Law, the competent authority handling the enforcement of stipulations in the current law is the National Agency for Mineral Resources, organized as a public institution of national interest, with legal personality, main credit release authority, subordinated to the Government.
The line ministry ensures the development of mining activities, as follows:
--it elaborates strategies and policies in the field of mineral resources, subject to Government approval; it supervises and participates in their execution, based on its competencies. The strategies and policies elaborated apply to the participants in mining activities, only in a positive sense;
--it evaluates and approves the budget for the execution of mineral resources production, in mining companies and national enterprises;
--it is the main credit release authority for the budget allowances related to retrofitting-development, prospecting programs as stipulated by the annual geological plan, technological research, environment protection and rehabilitation, restructuring, preservation/closure of mines or quarries, social protection measures in case the mines are closed and other activities in the field of mineral resources;
--it ensures the elaboration of studies based on which, together with the authority competent in finances, it selects mining products exploited with state budget funds; it substantiates their price according to the law;
--together with the authority competent in environment protection, it assents environment protection regulations specific to the mining activity etc.;
According to the law, Romanian courts handle the settlement of litigations regarding the interpretation and execution of licenses/permits, if the parties have not agreed upon using arbitrage for settlement purposes, including international courts.
Sweden is the most important iron producer in Europe and one of the most important copper, zinc, lead, gold and silver producers. In 2010, 60% of the exploitation licenses were issued for copper, zinc, lead and nickel. The exploration of other minerals (molybdenum, wolfram, vanadium, tellurium and lithium) is an area of interest for certain foreign prospectors (http:// www.legal500.com/c/sweden/developments/22669). The 1991 Mining Act is the main law regulating the field and it represents the basis for issuing exploration and exploitation licenses. The enforcement regulations were set in the 1992 Minerals Ordinance (Idem).
The Environment Code sets the general framework in the field, in Sweden. In order to perform any mining operations, the environment licenses are issued by the courts in the jurisdiction of the respective mining plot. The requests for exploration and exploitation licenses are managed by the Mining Inspectorate. The local council participates in the environmental assessment of the license requests. The Swedish government makes decisions in situations of public interest, the local municipalities are in charge with coordinating the licenses with the stipulations of the Law on planning and constructions. The requirements in the scope of the Environmental Code are investigated by the territorial courts, local councils and health and environment bodies, at regional/local level.
The mineral resources included in the Mining Act, a total of 69, have industrial use and economic importance and they require extensive and rigorously scientific prospecting methods. The minerals not included in the law (quartz, chalkstone etc.) are private property. The purpose of the Mining Act is to define the preconditions for exploration and exploitation of mineral resources under concession, irrespective of the property over the land. The law is based on the concession system, but it also includes significant elements of the claim system.
Essentially, the Mining Act is an instrument for the industrial policies, which are designed to promote the extraction of the minerals that the government and parliament considers usable in the industry and important from the economic viewpoint. The Mining Act is usually described as a basis for a mining system based on concession, with certain elements of the claim system. One of the main purposes of the law is the regulation of relationships between the prospectors and mine owners, on one hand, and the owners of mining lands, on the other. Few stipulations of the law have other directions (Liedholm Johnson, 2010: 75).
One of the underlying principles of the law states that the right to exploration, prospecting and extraction of minerals can be granted to any person other than the land owner, by decision of a national authority (Idem). A mining land owner can be compelled by law to lease the land, for the extraction of minerals. The minerals not enumerated by the law (feldspar, mica, chalkstone, salt, stone) are the "owner's minerals".
The exploitation/extraction is made on the basis of an exploitation concession. A concession is valid for a surface determined on the basis of a deposit surface, of the concession purpose, as well as other circumstances. Concerning the land surface required to open a surface or in depth mine, it must be specifically assigned to this purpose, through a special procedure (markanvisning). According to the provisions of the Mining Act, issuing the license is an administrative process, in which the Mining Inspectorate is the governmental body that can issue these licenses. In order to issue a license, it is required to follow a specific procedure (application). If the license for a particular plot is requested by more than one party, the first applicant takes precedence, on the first come, first served principle.
In theory, the applications can be made on any land, irrespective of the type of property, except for the national parks; there are legal restrictions, for other areas protected by the stipulations of the Environmental Code. In practice, no mining prospection or operation can be performed in the absence of a license. It grants the individual right exploitation right of a strictly defined geographic area and it is valid for a period of three years, with the possibility to be prolonged.
Based on the exploitation license, the holder takes precedence over other concessionaires, if fulfilling basic requirements established in the Mining Act, as well as in the environmental legislation. In order to start the exploitation, the holder of a license must provide the owner of the land in question with an operation plan. The concession for exploitation allows the concessionaire to extract and own the mineral resources on the respective plot, for a period of 25 years. Another requirement is the creation of a viable financial deposit.
In case the owner of the land and the mining company have not concluded an agreement, the mining inspector makes a decision, based on which they can begin the mining operations. For a mining project to be approved, it is necessary to obtain a license for activities that may affect the environment, as defined in the Environmental Code. The provisions of the Mining Act and the Environmental Code are applied simultaneously.
The first step towards obtaining a license is a consultation between the company that will engage in activities with impact on the environment and the environmentally affected parties. An assessment of the environmental impact of the respective activity is elaborated, assessment made in order to enable the administrative bodies to decide on granting or refusing the license. The complete process to obtain the environment license takes between three and five years, depending on the volume of the operation. A concession for exploitation is valid for a period of 25 years, period which can be prolonged by 10 years, if the progress made at the expiry date of the legally valid period of time can be proven. A shorter period of time is decided upon only by request of the concessionaire.
According to the Mining Act, the legal procedure to assign the land surface under concession is initiated by request of the concessionaire, with the expenses covered by the aforementioned. It determines the land surface on which the concessionaire develops the exploitation operation. Obtaining an environment license to open a mine is governed by the same rules as any other business with impact on the environment. The details (level of noise, storage of waste products, damming and level of water pollution) are decided upon during the process of issuing the license, process handled by the environment courts, supervised by the local councils and the environmental and health municipality bodies.
In many of the countries owning mineral resources, the conditions for developing specific operations are uncertain due to the requirements of the natives on the respective territory, for example, or the rights related to the mining right. With the expansion of the environmental issues, the extraction of minerals is more and more subject to certain conditions, being regulated by stipulations in laws regarding the protection of the environment, waters and forests; many of these stipulations are prohibitive, with impact on the activities concerning mineral resources.
One of the most important objectives of the mining legislation lately has been that of providing a regulation framework for the private initiatives in the exploration and exploitation of minerals. In the context of an increase in the international competition and the level of investments made by international mining companies, many states have reformed their mining legislation and have introduced numerous methods of attracting the international investors.
In the German-speaking states, the mining legislation originates in the medieval civil codes. Starting with the 12th century, the German kings demanded the right over silver or other metals, receiving the pre-emption right instead of the local lords. However, during the late Middle Ages the mining right--Bergregal--was transferred from kings to local rulers. Initially transmitted orally, the mining laws were included in decrees and regulations, after the 19th century.
The basics of the mining legislation in Germany are covered by art. 74, paragraph 1 of the fundamental Law, while the standard legal core is represented by the Federal Law of Mines (Bundesberggesetz). In Austria, the legal basis is similar to that of the German legislation. As of January 1st1999, the primary legislation is represented by the Law on Mineral Resources (Mineralrohstoffgesetz-MinroG). In Switzerland, the mining legislation only refers to a few minerals (metallic ores, fossil fuels and related materials, such as graphite, anthracite, stone, coal, lignite, slate, asphalt, bitumen and mineral oils, sulphur, salt and salty springs) and it is governed by the Law of property.
Unlike the legislation in the German-speaking countries, the Anglo-Saxon legislation, especially the legislation in Great Britain and the Commonwealth, the principle of the mining activity developed by the owner prevails; the only holder of the gold and silver deposits is the Crown. In exceptional situations (for example, when the property over the land is divided), the right to exploit the mineral resources can be granted to third parties, while the owner is compensated. The mining companies pay the owner rent or royalties.
The rights for surface or in depth exploitation can be granted separately. In francophone states, in France or Belgium, the Civil Code is the basis for the mining legislation.
The mining industry has particular influences on the environment, manifested in all the stages of the technological processes of production. The influence on the environmental factors begins with the prospecting and exploration of ores and it continues and intensifies with the development of productive activities. Therefore, the legislation stipulated the fulfilment of environmental protection requirements, which is achieved with the help of the environmental authorities, in the majority of the studied states.
VICTOR ALEXANDRU FAINISI
Spiru Haret University
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|Author:||Fainisi, Florin; Fainisi, Victor Alexandru|
|Publication:||Economics, Management, and Financial Markets|
|Date:||Jun 1, 2017|
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