A special feature of federal mining law is the fundamental distinction between so-called “bergfreie” and “grundeigene” mineral resources. The BBergG specifies in a conclusive catalogue which mineral resource falls under which category, whereby the economically more interesting mineral resources are classified as “bergfrei”. The consequence is that “bergfreie” mineral resources are not added to land ownership, but the right to appropriate them must be transferred in an independent administrative procedure (authorisation procedure) before operating licences can be granted. The advantage of this legal construct, however, is that the state has linked the granting and utilisation of concessions to tax obligations which, provided with a corresponding legislative steering function, could also promote more environmentally friendly and resource-conserving exploration and extraction activities. For example, the levy obligation can already be reduced or even waived today so that a deposit being exploited can be fully extracted, which would otherwise be uneconomical for the operator.
The mining authorisation regime works on a first come, first served basis. The mining companies stake their claims and, after the granting of exploration permits, can in principle access the deposits safe in the knowledge of the irrevocability of the consent. In other words, with the granting of the exploration licence a temporary preliminary decision in favour of a certain use has already been made. Public participation is not envisaged by the BBergG in this respect. In this way, the conflict between the interests of local residents and the profit-making interests of the companies is in most cases resolved in favour of the latter at this early stage of the project.
This is because the granting of authorisations for the exploration and extraction of so-called “bergfreie” mineral resources also further strengthens the legal position of mining companies. In addition to their freedom to engage in mining activities, which is protected by Article 12 (1) of the Basic Law (German Constitution), the granting of mining licences confers on them the right of ownership on the “bergfreie” mineral resource, which is protected by Article 14 (1) of the Basic Law, with the effect that the exercise of this right must not be improbable or even impossible from the outset. If it turns out that the extraction of the mineral resource is not possible without access to third-party land, the extraction permit also grants the right to demand the subsequent assignment of the land (expropriation under mining law).
The early transfer of the right to appropriate the “bergfreie” mineral resource is not matched by a corresponding early possibility of legal protection for the possibly affected property owner. The landowner is largely restricted to using legal means to substantially defend himself against the threat of expropriation only in the subsequent land transfer procedure, by which time mining operations have usually been going on for many years. But also for mining-related damage to surface property, legal protection under mining law is historically characterised by the principle of "tolerate and liquidate" and thus, from the point of view of the affected property owners, definitely needs improvement. A strengthening of legal protection was not brought about by the legislator, but by the Federal Administrative Court with its decision (Ref: 7 C 11.05) in 2006, which has since been confirmed by the Federal Constitutional Court in its “Garzweiler” decision of 2013 (Ref: 1 BvR 3139/08; Ref: 1 BvR 3386/08). In the opinion of the court, protected owner interests can already be objected to when a general operating plan is approved and must therefore already be determined by the mining authority at this stage of the procedure and included in the weighing of interests. However, this does not change the fact that the de facto decision on the "whether" of mining has often been made at an earlier point in time and that legal remedies, for example against the resettlement of affected persons against the background of an already ongoing mining operation, are regularly unlikely to have a realistic chance of success.
A more far-reaching advance shift of legal protection to the procedural stage of the granting of authorisation could be suitable for increasing the effectiveness of legal protection and legal certainty in mining law proceedings as a whole. This could not only benefit those potentially affected by mining, but also lead to more legal certainty and investment security for mining operators. Under the current legal situation, they have to fear that projects that have already been approved and, if necessary, have been in operation for many years with correspondingly considerable investment expenditure, could be amended or even stopped by the courts. From the point of view of environmental protection, the environmental and nature conservation associations recognised under § 3 of the Environmental Remedies Act (UmwRG) and equipped with rights of participation and legal action have an important control function. As professional advocates of environmental concerns, they can contribute environmental and nature-related opinions at an early stage in the staged authorisation procedure under mining law and thus contribute to improving the enforcement of environmental protection regulations in mining activities as a whole.
From the perspective of the affected property owners, the law governing damage caused by mining activities is incomplete. It privileges those residents whose properties lie within an area affected by deep mining insofar as, in the event of damage to property on the surface, the legal presumption is that the damage has been caused by the extracting companies. Opencast mining still lacks a system to reverse the burden of proof. The affected parties therefore bear the burden of proof that damage has been caused to their property by opencast mining activities. Such evidence is however likely to result in success only in rare cases and often leads to costly and protracted legal disputes.
