As of January 1, 2012 a new Geological and Mining
Law has taken effect (Journal of Laws of 2011, No.
163, item 981) (hereinafter the “Act”). The Act is a
comprehensive revision of Polish geological and
mining law.
One of the most important changes is the restoration
of the previous model of mineral ownership rights.
In recent years, issues have arisen as to whether the
ownership of found mineral deposits should belong
to the State Treasury or the landowner. The current
Act removes this ambiguity and precisely
enumerates the types of natural resources owned by
the State Treasury regardless of their location.
Therefore, by definition the remaining reserves and
resources belong to the property owners.
Under the new Act, the entrepreneurs engaged in
mining activities will also gain significant additional
rights in dealing with property owners of lands rich
in mineral deposits. These include:
- firstly, if a property or any portion of a property proves to be necessary to carry out mining activities, the entrepreneur can demand access to the necessary portion for a specified period of time provided the owner is compensated;
- secondly, the entrepreneur who hold an exclusive concession license to extract of hydrocarbons, coal, lignite or for the underground non-reservoir storage of hydrocarbons, can demand to purchase real estate or a portion of the real property, located within the mining area, necessary to carry out the mining operation.
The Act has also limited the scope of exclusive
concession licensing of regulated activities. The
concession licensing requirement now only applies
to businesses prospecting or exploring for mineral
deposits defined by statute, businesses engaged in
the extraction of minerals from deposits and those
utilizing underground bulk storage of substances and
underground storage of waste. Concession licenses
are not required in the carrying out of other such
activities.
A noteworthy change also occurred in the
specification of the number of persons who have the
standing as a party in concession grant proceedings.
Currently, this status is reserved for owners or
perpetual users only if the activity governed by the
Act is to be performed within the limits of their land.
In order to expedite the administrative procedures a
public notification provision has been added. Where
the number of parties to the proceedings is greater
than 20 persons, the parties can be notified of
decisions and other actions by publication in the
Bulletin of Public Information or in the manner
customary in the community.
With respect to the right to use geological
information, the Act has preserved this right for the
State Treasury. The act has only slightly improved
investors’ position with regard to the use of
geological surveys. Under certain conditions and for
specified periods of time, investors can now
exclusively and without charge use information they
have gathered.
The Act also introduced a number of other changes
aimed at creating economic incentives for
entrepreneurs. Only time will tell whether these
changes will recreate el dorado for the Polish shale
gas industry. At the moment, the liberalization of
many requirements in the mining industry should be
positively received.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of
action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser
should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.