Limitations on the transferability of concessions under the Geological and Mining Law
As was already mentioned in the previous article, the regulation of art. 36 of the Geological and Mining Law Act provides for the possibility of transferring a concession from one entity to another subject to meeting the conditions set out therein.
However, a legal solution consisting in the transfer of a concession from one entity to another is not regulated exclusively in the Geological and Mining Law. Joining the rights resulting both from the concession decision and other decisions issued on the basis of a commented act can also take place on the basis of separate provisions.
This possibility is provided for, among others, by the provisions of the Civil Code regarding legal transactions involving an enterprise (Article 552 of the Civil Code) or provisions of the Commercial Companies Code (CCC) regulating the merger of companies (494 § 1 of the CCC), division of companies (Article 531 § 1 and 2 of CCC) and transformations of companies (article 553 § 1 and 2 of the CCC). The transfer of rights to the purchaser of a bankrupt enterprise, and thus also the transfer of the concession itself, is also provided for in art. 317 section 1 of the Act of February 28, 2003 – Bankruptcy and Reorganization Law.
It should be noted, however, that the above-described possibility of concession transfer from one entity to another described in separate legal regulations was limited by the legislator in the abovementioned art. 36 section 11 of the Geological and Mining Law. This provision explicitly excludes the possibility of transferring the rights to the concession in the case of minerals covered by the mining property (and thus they will be hydrocarbons, hard coal, methane existing as accompanying minerals, brown coal, metal ores with the exception of iron ore, metals in the native state, ores of radioactive elements, native sulfur, rock salt, potassium salt, potassium-magnesium salt, gypsum and anhydrite, precious stones, rare earth elements, noble gases). The above-mentioned restrictions have been abolished by the legislature only in the case of mergers of companies or their division, when the composition of the shareholder or shareholders of the acquiring company or the newly created one is identical with the composition of the shareholders or shareholders of the merging companies.