GERMANY Law and Practice Contributed by: Stefan Altenschmidt, Pauline Müller and Ina Schwanke, Luther Rechtsanwaltsgesellschaft mbH
but their extraction requires approval under the Min - ing Act. “Free-to-mine” (bergfrei) minerals (eg, lignite, potash, iron, copper, lithium, oil and natural gas) These are not part of the property owner’s title. They can be extracted by anyone with a licence, which is allocated by the state on a first-come, first-served basis due to their exclusive nature. Geothermal energy from wells deeper than 400 metres (deep geothermal energy) is also classified as a free-to-mine resource and is therefore subject to mining law. Conversely, geothermal energy close to the surface is not subject to mining law. Types of Licence The Federal Mining Act distinguishes between three types of licence for mineral resources governed by A permit grants the holder the exclusive right to explore for specific mineral resources in a specific area. Any mineral resources that must be removed for exploration purposes may be extracted and taken into the ownership of the permit holder. Permits are limited to a maximum of five years and can be extended by up to three years. A permit is granted provided that all requirements set out in the Federal Mining Act are met. Approval Approval grants the right to explore and extract free- to-mine mineral resources at a particular licensed min - ing site. Approval is granted for a period appropriate to the extraction in each case. A period exceeding 50 years may only be granted if necessary due to the investments usually required for extraction. An exten - sion may be granted. Mining property Mining property constitutes a special form of pro - prietary right and is established by an administrative act. It is then registered in the land register as a right mining law: • the permit; • the approval; and • the mining property. Permit
equivalent to land ownership. It comprises the rights and obligations associated with granting a licence, as well as allowing mortgage lending and the registration of easements. The provisions regarding the limitation period correspond to those of the licence. To apply for mining property, the applicant must already hold a licence for the specified mining field. Assignment Approval grants the right to demand assignment of title. Assignment of title is only permissible if acquisi - tion of the land is not possible or reasonable under the appropriate conditions, and if attempts to reach a usage arrangement for the implementation of the pro - ject have been unsuccessful. The assignment of title may include ownership, possession or other rights relating to the land. The mining company must pay compensation for the assignment of title, based on the value of the property in question. Additionally, com - pensation must be paid for loss of earnings, reduction in value and relocation costs. Operating Plans The granting system under the Federal Mining Act provides for a two-stage approval process. In addi - tion to the licences mentioned above, an approved operating plan is required for exploration or extrac - tion operations. While the various licences grant the general right to conduct mining activities, operating plans provide detailed regulations for conducting those activities, including provisions relating to safety and environmental protection. 1.4 Role of the State in Mining Law and Regulations The Sate plays a dual role as guarantor and regu - lator of mining. The federal and state parliaments and governments establish the legal framework that determines whether mining is permissible and how it should be carried out. Mining authorities enforce these laws, grant licences for the exploration and extraction of mineral resources, and monitor mining activities to ensure compliance with legal and environ - mental standards. There are no mandatory national or government joint ventures, contracts or participation. The State is not financially involved in mining itself; it only charges fees
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