GERMANY Law and Practice Contributed by: Stefan Altenschmidt, Pauline Müller and Ina Schwanke, Luther Rechtsanwaltsgesellschaft mbH
Approval shall also be revoked if extraction is not initi - ated within three years, or if extraction is interrupted for three years. These provisions shall not apply if the technical or economic planning of the approval holder requires it, or if they are not responsible for the delay. The same regulations apply to mining property with a ten-year time limit. An approved operating plan is required for the opera - tion of mineral resource exploration or extraction sites. The relevant mining authority must approve this plan and monitor compliance with it. Those authorised to explore or extract must provide the competent author - ity with the necessary information and documents for monitoring purposes. The mining authority’s supervi - sory powers are extensive and include on-site inspec - tions. Orders exceeding the approved operating plan may be issued afterwards to protect the lives, health and property of employees or third parties. 2. Impact of Environmental Protection and Community Relations on Mining Projects 2.1 Environmental Protection and Licensing of Mining Projects In Germany, environmental laws are set out in various Acts and Ordinances as well as EU Regulations. For example, the Federal Mining Act, the Water Resourc - es Act (WHG), the Environmental Impact Assessment Act (UVPG) and the Federal Nature Conservation Act (BNatSchG) govern environmental law provisions for mining activities. In particular, strict requirements arise from the obliga - tion to conduct an environmental impact assessment. The operating plan must include protective meas - ures to minimise negative effects on water, soil, air and natural ecosystems. These include measures to reduce dust and noise, comply with emission limit val - ues and regularly monitor environmental impacts. The Mining Projects Environmental Impact Assessment Ordinance specifies when an environmental impact assessment must be conducted for mining projects. If an environmental impact assessment is required, the public affected by the project shall also be involved.
This involves publishing the plan and relevant environ - mental impact documents, and providing an opportu - nity for those affected to submit statements. Depending on the type of operating plan, either a sin - gle proceeding led by the mining authority of the fed - eral state reviews the requirements of environmental laws, or separate proceedings must be conducted by the respective environmental authorities. A concen - trated approval process is always carried out by the relevant state mining authority when an environmental impact assessment is required. 2.2 Impact of Environmentally Protected Areas on Mining As required under EU law, Germany has a network of nature conservation areas known as “Natura 2000”. These protected areas are subject to specific restric - tions under nature conservation law. The EU’s legal requirements for establishing and protecting the Natu - ra 2000 network are set out in the Federal Nature Con - servation Act ( Bundesnaturschutzgesetz , BNatSchG). According to the Federal Nature Conservation Act, any activities that could significantly impact a Natura 2000 area are prohibited. Therefore, projects such as mining activities must usually be assessed for their compatibility with the conservation objectives of any affected Natura 2000 areas before they are approved. If negative effects are likely, exemptions allowing min - ing activities – despite their adverse impact – may be granted for reasons of overriding public interest, including social or economic reasons, provided there are no reasonable alternatives for achieving the pro - ject’s objectives elsewhere that would have less or no impact. However, no exemption may be granted for fracking activities. Particularly strict requirements apply if habitats or species of public interest – eg, due to their global dis - tribution – may be affected. For areas hosting such priority natural habitats or species, an additional con - dition for approving a plan is that it is necessary for reasons of human health or public safety, has positive environmental effects or is in the public interest. Such reasons of public interest may only be considered if the relevant authority has obtained an opinion from the European Commission. Priority habitats and spe -
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