Updated: 05.07.2024

Poland’s Geological and Mining Law (Journal of Laws 2011 No. 163 item 981, also referred to as the “Law”) plays a key role in regulating mineral exploration, prospecting and mining activities.

The law of June 9, 2011 sets out the rules and procedures for obtaining licenses, which are necessary for legal mining operations. These concessions are not only an instrument of state control over the exploitation of natural resources, but also a tool to ensure sustainable development and environmental protection.

From this article you will learn about the process of obtaining a license, the types of raw materials that require such permits and the requirements for entrepreneurs in this industry. Read on!

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Note on Terminology: “Mining License” vs. “Mining Concession”

Although the correct term is “mining concession,” it is commonly referred to as a “mining license” by approximately 90% of people. Therefore, this article will primarily use the term “mining license” to align with common usage, with an explanation at the beginning that it is, in fact, a concession. The term “concession” will also be used intermittently throughout the text for accuracy and clarity.

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What are the statutory requirements for license?

The legislator treats the concession as a special form of regulation. This is due to the conditions for its introduction set forth in the Entrepreneurs’ Law. It is considered a special form, intended for areas of key importance to the state, always mentioned in an act of general character.

What mining activities require a license?

According to the provisions of the Act, the mining activity of :

• exploration or recognition of deposits of minerals, i.e., hard coal, methane occurring as a concomitant mineral, lignite, metal ores except turf iron ores, 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, hydrogen,
• mining of minerals from deposits,
• exploration and recognition of hydrocarbon deposits and extraction of hydrocarbons from deposits,
• underground tankless substance storage,
• underground waste storage,
• underground storage of carbon dioxide,

can be carried out only after obtaining a license.

What criteria must a mining operation meet that requires a license?

It should be noted that such activity must meet the criteria set forth in the provision of Article 3 of the Entrepreneurs Law. That is, such activity in mining industry must be characterized by continuity, an appropriate degree of organization and profit-making nature.

What about mining activities that do not meet these criteria?

Activities that do not meet these criteria will not require a license. Its performance will be allowed only to extract sands and gravels, intended to satisfy the individual’s own needs, from real estate that is the subject of his property right (perpetual usufruct), without the right to dispose of the extracted mineral.

It is worth noting that this applies to such an activity, where at the same time mining will be:

• performed without the use of blasting agents,
• will not be greater than 10 m3 in the calendar year, and
• will not violate the purpose of the Real Estate.

In this case, it is only necessary to give a written notice to the competent mining authority specifying the location of the intended works and the time of their execution sent 7 days in advance.

However, even occasional mining will be subject to the provisions of the Geological and Mining Law, although exploration and prospecting of non-strategic mineral deposits remains outside the license system (according to Article 10(1) of the Law). Exploration and prospecting are included in this scope:

• medicinal waters,
• brines,
• thermal waters,
• sand and gravel extraction

for personal use (Article 4 of the Law).

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What are the regulations for the exploitation of groundwater classified as minerals?

Exploitation of therapeutic waters, thermal waters and brine can take place only on the basis of a concession issued by the provincial marshal for a specific mining area.

On the other hand, exploration of the aforementioned types of waters requires a geological works project in accordance with the Regulation of the Minister of the Environment of December 20, 2011, which must be approved by the relevant geological authority. Additional guidelines apply in certain cases.

Drilling operations must be carried out in accordance with the mine plan if the depth of the borehole exceeds 100 m or is located within an existing mining area.

If drilling is likely to significantly affect the environment (at depths of more than 1,000 meters), a decision on environmental conditions will be required. The results of drilling and hydrogeological studies should be presented in the hydrogeological documentation, which determines the exploitable resources of therapeutic, thermal or brine waters.

This documentation, in accordance with the Regulation of the Minister of Environment of November 18, 2016 on hydrogeological documentation and geological-engineering documentation, must be approved by the competent geological authority.

It should further include:

• results of studies of hydrogeological conditions and parameters of aquifers,
• assessment of physical and chemical properties of waters,
• information on anticipated changes in water quality and quantity during operation,
• technical conditions for rational operation,
• the boundaries of the proposed mining area.

To obtain a license for the extraction of thermal, therapeutic and brine waters, an application must be submitted to the provincial marshal in charge of the region. The application must be accompanied by a deposit development project, which should be developed in accordance with environmental laws the Regulation of the Minister of the Environment of April 24, 2012 on detailed requirements for deposit development projects based on hydrogeological documentation.

At the same time, it must take into account the technical and economic conditions of water exploitation. On this basis, the concession authority determines the boundaries of the mining area and area for the deposit. During exploitation, the user of the deposit is obliged to pay a mining fee and prepare a record operation, which determines the amount of mined mineral in a given period.

A well-drafted hydrogeological documentation, which establishes the exploitation resources together with a deposit development project and a mining license with a properly delimited mining area, is crucial for the safe and rational management of the deposit. It also assists in the achievement of the intended economic effects.

Due to the definition of a mineral deposit, which refers only to natural accumulations of raw materials. The activity of prospecting, exploration, and exploitation of mineral resources contained in waste from mining operations (heaps) or from mineral enrichment processes does not fall within the statutory definition of prospecting.

Such accumulations of raw materials are anthropogenic in nature and are not considered mineral deposits under the provisions of the Law. 

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What is the license process like?

Pursuant to the provision of Article 21(2) of the Act, the provisions of the Business Law shall apply to matters not regulated to the licensing of activities. Priority is therefore given to the Geological and Mining Law as general mining act is the more specific law (lex posterior specialis derogat legi priori generali).

The granting of a license, as well as its denial, modification, suspension or revocation, shall take the form of a decision (in accordance with the provision of Article 37 of the Business Law). The draft of this decision should be reviewed or agreed upon by the competent authority, in accordance with Articles 8 and 23 of the Geological and Mining Law.

Concessions for the extraction of mineral resources are issued by the competent public administration. Depending on the type and location of the deposit, these may be:

• Minister of Climate and Environment – for strategic resources such as coal, natural gas, oil,
• Marshal – for other raw materials of less strategic importance.

Step-by-step procedure for obtaining a license

The procedure for obtaining a mineral license involves several stages:

1. Application for a concession: The entrepreneur submits an application to the competent authority. The application should include, among other things:
   • identification data of the applicant,
   • A description of the planned mining operations,
   • geological documentation of the deposit,
   • deposit development plan,
   • environmental impact assessment.
2. Opinion of authorities and reconciliation: The competent authority shall give its opinion on the application by consulting with other authorities, e.g. environmental, local government.
3. Decision to issue a license: After obtaining all required opinions and agreements, the authority issues an administrative decision to grant or deny the concession. The license decision contains the conditions that the entrepreneur must comply with in the course of mining operations, including obligations related to environmental protection and land reclamation after mining.

It should be noted that the provision of Article 21, paragraph 5 of the Law, “A concession entitles one to carry out business activities in a designated space,” may suggest that a license creates a civil right to use a designated space, including the Real Estate under which the valuable mineral deposits are located.

However, this understanding is erroneous. A license as an institution of administrative law does not affect the situation of the civil rights of the parties. This provision only sets administrative-legal limits on the use of the license, without impacting property rights to real estate or valuable mineral deposits.

However, it should be noted that winning a tender for a license for the exploration or appraisal of a hydrocarbon deposit or for the extraction of hydrocarbons involves the obligation of the State Treasury to conclude a mining usufruct agreement.

The phrase “economic activity” used by the legislature is imprecise, since the law refers to any type of activity, including subsistence mining. Only individuals mining sand or gravel for their own use are exempt from the concession requirement.

The Geological and Mining Law is therefore applicable to, among other things:

• mining of sand or gravel for own consumption by legal entities (or individuals who do not meet the requirements of Article 4 of the Law),
• extraction of other valuable minerals for their own use by any entities,
• one-time extraction of a certain amount of mineral for sale to a single customer.

None of the above activities will be treated as economic activities. As mentioned above, “exploration, prospecting and exploitation of natural resources” is an economic activity only if it is for profit and carried out in an organized and continuous manner.

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For what period is the license issued?

Licenses are granted for a period of 3 to 50 years, unless the applicant requests a shorter period. The final duration of the license is determined by the concession authority, which is not obliged to accept the period indicated in the application.

This does not mean, however, that the authority has complete freedom in determining the term. It should be guided by the expected life of the deposit or the duration of geological work, which may depend on the characteristics of the deposit.

The phrase “unless the entrepreneur has applied for a concession for a shorter period” can be interpreted in two ways – as the need to be bound by the requested term, or as the possibility of granting a license for a period of less than three years.

It seems that the latter interpretation should be adopted, which allows the authority to grant a license for less than three years, without having to stick to the term indicated in the application.

It is also worth noting that the use of the term “entrepreneur” in the provision of Article 21, paragraph 4 of the Law seems inappropriate, since according to the definition of the term, an entrepreneur is a person who already holds a license. However, this provision refers to the stage of applying for a concession. A better term, therefore, would be “applicant,” since it more accurately reflects the legal position of the person applying for a license.

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Why does the authority refuse to grant a license?

The decision to issue or refuse to issue a license is not discretionary. The grounds for refusal to issue a concession are set forth in Article 39 of the Entrepreneur Law, according to which:

“The concession authority may refuse to grant a concession or limit the scope of the concession in relation to the application for a concession, or refuse to modify the concession.

• when the entrepreneur does not meet the conditions for carrying out business activities covered by the concession specified in the law or the conditions communicated to entrepreneurs pursuant to Article 48 paragraph 2 or Article 51 paragraph 1,
• due to the threat to the defense or security of the state or citizens,
• if as a result of the tender referred to in Article 52, a concession was granted to another entrepreneur or entrepreneurs,
• in cases specified in separate regulations,” i.e., in the present case, in the provision of Article 29 of the Act.

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What is a temporary suspension of a concession?

The license authority may temporarily suspend the granting of concessions for the same reasons for which it may issue a refusal decision, i.e. if the intended activity opposes the public interest, related in particular to:

• state security, including energy security, or
• the raw material interests of the state, or
• environmental protection, including rational management of mineral deposits, or
• implementation of the energy transition, including the possibility of raising funds for the implementation of the transition.

The authorized authority shall temporarily suspend the process by making an announcement in the Official Journal of the Republic of Poland “Monitor Poland” at least three months in advance. The announcement shall specify in detail the type of activity, the type of raw material, the area, and the period during which concessions will not be granted. In addition, the type of public interest that justifies the temporary suspension of concessions shall also be indicated.

Suspension of license granting is not an individual administrative act, therefore no decision or order is issued in this regard. Such suspension becomes effective for license applicants only from the time indicated in the announcement in the Monitor Poland, but not earlier than the publication of that announcement.

In addition, suspension of concession granting does not mean an absolute ban on license applications. However, any license proceedings that have been initiated should be put on hold until the end of the period for which license have been suspended.

It is also worth mentioning that although the suspension of the granting of concessions is not done through an administrative decision, it can still be subject to judicial review through an appeal to an administrative court. Especially if such a suspension would last longer than a reasonable period.

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Everything you should know about license revocation

The expiration of a concession does not mean the termination of the business activity carried out by the entrepreneur. It only means the loss of the right to conduct business within the scope of the license. In addition, the law imposes a number of obligations on the entrepreneur, which only become effective when the license is revoked, expires or becomes invalid.

The revocation of a license results in the termination of the operation of a mining plant or, in the case of geological activities, a plant properly adapted to the regulations on mining plants. The entire decommissioning process must be carried out in accordance with the regulations of the Geological and Mining Law. In particular, with the standards for the decommissioning of a mining plant.

Once a concession is withdrawn, environmental regulations remain in effect, which the former entrepreneur must continue to comply with.

The draft decision on the revocation of the license must be subject to agreement with local authorities, such as the mayor of the city. Such a decision must include deadlines for the performance of any obligations imposed on the entrepreneur.

Despite the revocation of the license, the entrepreneur may still conduct business, however, in the scope beyond those areas covered by the license. It is also possible to apply for a new license in the future, in accordance with the applicable procedures.

If the license is revoked, there is also an obligation to survey the excavations and submit a survey report by a certain date.

It is worth noting that the expiration of a concession does not directly affect the mining usufruct contract, unless its provisions provide otherwise. In the case of strategic mineral deposits, automatic termination clauses in the mining usufruct agreement should be included in the contracts governing this aspect of mining operations.

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What is the process for transferring a license?

Administrative transfer of licenses

In principle, the law allows for the transfer of licenses to another entity through administrative proceedings.

The basic way to transfer a license is to ask the license authority to issue an administrative decision to transfer the license to a designated entity, with the consent of the entrepreneur to whom the license was originally granted.

The license authority consents to the transfer of the license, if this is not opposed by the public interest, in particular related to state security or environmental protection, including the rational management of mineral deposits.

The entity that intends to obtain a concession under the above procedure should meet the statutory requirements, in particular:

1. meet the requirements stipulated by the regulations on undertaking business activities;
2. agree to accept all the conditions set forth in the concession and in the mining usufruct agreement;
3. To the extent necessary to carry out the intended activity, demonstrates a mining usufruct or a promise to obtain this right. And in the case of mineral deposits covered by the ownership of Real Estate, also the right to use the Real Estate or a promise to obtain this right.;
4. to the extent necessary to carry out the intended activity, demonstrates the right to use geological information;
5. demonstrates that it is able to meet the requirements for carrying out the intended activity.

It is worth remembering at this point that the transfer of a license also transfers rights and obligations under other decisions issued under the law.

The transfer of a license is carried out at the request of the entity that seeks to transfer the license to itself from the entrepreneur that originally obtained the license. The parties to the proceedings on the transfer of a license are the entrepreneur and the entity that applies for the transfer of the concession.

Prior to the transfer of the license, the license authority may change the form, scope or method of securing the proper execution of the license, including increasing the amount of the security.

Acquisition of license in an M&A transaction

An alternative to the administrative mode of license transfer is the acquisition of a license in an M&A transaction, which involves the accession to the rights and obligations of the target company on a succession basis.

The above procedure is advantageous in that it makes it possible to take over the license without having to obtain an administrative decision on the transfer of the license. Thus without having to initiate administrative proceedings on the subject.

An entity interested in acquiring a concession may acquire the rights and obligations under the concession on the basis of an M&A transaction, which should include one of the following forms:

1. The sale of an enterprise or organized part of an enterprise owned by the license company,
2. Merger of a company holding a license with another commercial company,
3. Division of a commercial company holding a license,
4. Transformation of a commercial company that holds a license,
5. The sale of an enterprise owned by a licenseary company in bankruptcy proceedings.

An entity that assumes the rights and obligations of an entrepreneur to whom a license has been granted is obliged to notify the above fact to the license authority.

With regard to certain licenses, including but not limited to licenses for exploration or prospecting and mining of minerals covered by the State Treasury’s mining property (e.g., hard coal). An entity intending to take over the license is required to notify at least 60 days in advance.

The license authority, in turn, has the right to object to the takeover of the license within 60 days of receiving the application. In the absence of an objection within the aforementioned period, the authority is deemed to have agreed to take over the license (tacit settlement of the case).

With regard to other minerals (e.g., sand, gravel, clay, others), the entity that by operation of law has succeeded to the rights under the license is obliged, within 30 days from the date of its accession, to provide evidence of legal succession to the license authority. In this case, as a rule, the law does not give the license authority the power to object.

Learn more about concessions, licenses, permits, registrations for regulated activities from our article “Regulatory in Poland.” If you need support, remember that you can always contact us. We also offer comprehensive legal assistance in mining laws, environmental and mining claims.

Do you have doubts? Don’t hesitate to ask!

FAQ – Licenses in geological and mining law in Poland