The Mining Code provides for the difference between mining rights and property rights (following the european continental law contra the case law system), for the procedure and the conditions mineral rights are granted etc.
Kinds of mines
There are two kinds of mines:
- Private mines: Private entities and persons are the exclusive owners of the mining rights after a licence is granted by the State. Also, mines which are privately owned before 1973.
- Public mines: Mines where the mining rights belong to the State due to minerals therein, which are excluded from private exploration and exploitaion, public mining areas recently logged and all other areas explored by the State.
Mineral rights owned by the State
The right of exploiting the following mineral resources is reserved to the Greek State: hydrocarbons in liquid or gaseous form, solid mineral fuel (lignite, turf etc.), radioactive minerals, geothermal sources, mineral salt, natural organic fertilizers, mineral resources under the Greek waters (sea or lakes) etc. (Art. 143 Mining Code).
Mining exploration
Mineral rights are granted after mining exploration. Mining exploration consisting on impact activities such as ground geophysics, channel sampling, trenching and diamond drilling on a specific designated area, take place after a licence is granted. It is the first step to the concession of mining rights. It refers to all minerals on the site and its duration is three years.
Licences on mining exploration are not granted to non European Union citizens or companies (Mining Code, article 20). Nevertheless, they can obtain mineral rights to exploration by transfer or lease from an owner and execute all rights pertainining to them, the right to obtain the granting of mineral rights of exploitation by the State included.
The application to the competent authorities for mining exploration of a certain area results in a priority right to later submitted applications for the same area (Mining Code, article 25).
The owner of a mining exploration licence has the right to temporarily occupy areas within the designated site in order to exercise exploration works. He may also occupy areas out of the designated site for works necessary to the exploration e.g. creating new roads leading to the exploration spots, install electrical equipment etc (Mining Code, article 38).
No exploitation is allowed during the period of exploration (Mining Code, article 41).
Mineral rights
The owner of the mineral rights has the exclusive right to explore, excavate the earth, extract, exploit any or all the minerals lying above or below the surface of the ground, except those owned by the State as above.
It is the exclusive right of the mining property to exploit, mine, and/or produce. Mineral rights can be distinctly separated from property rights. Quarry rights depend on land ownership.
The mineral right is a particular property right (in rem) separate from property rights in the ground (Mining Code art. 65). It is granted by a Presidential Decree to one or more persons or entities and it is registered in the official land registry. Mineral rights normally do not exceed a period of 50 years, with an option for 25 more and a further option for 25 more years (after a licence by the Minister).
The mineral rights owner can execute all works for mining, building the necessary constructions above or below the ground, extract the minerals by mechanical or chemical methods, sell the minerals, the aggregates and the slag.
Ways of obtaining mineral rights
Mineral rights can be obtained:
- by concession from the State by the above mentioned Presidential Decree,
- by hereditary rights,
- by transfer or lease. Foreign persons and companies (EU member-states citizens and companies excluded) obtain mineral rights by transfer or lease after a Ministerial Decision is accordingly published.
The prosedure of granting mineral rights by the State
The owner of mineral rights of exploration can submit an application with certain documentation to the Regional Authority (Perifereia). The main document is the economic-technical study which defines the site of the mines, a geological study, the mineral deposits, the necessary constructions, the budget etc.
The application is trasferred to the Ministry of Environment. Α declaration is published for 60 days calling anyone objecting to the project to start legal proceedings. After that, the Presidential Decree granting the mineral rights is issued.
Mineral rights in public mines are usually leased by public auction. In rare cases they are leased by a contract. The amount of rent is provided by the law, except in mines containing amongst others, minerals owned by the State.
Mining under certain terms and conditions
According to Art. 24 of the Greek Constitution, the protection of the natural and cultural environment constitutes a duty of the State. The State is bound to adopt special preventive or repressive measures for the preservation of the environment taking into account sustainable development. Older precedents of the Council of State were very strict on the terms under which mining takes place.
The following conclusions derive from the recent precedents (CoS 1964/2015, 4783/2013, 3883/2008, 1990/2007, 2170/2006, 613/2002):
- Mining is valid for a limited period of time and is bound to the restoration of the site. Mineral rights do not alter the legal status of the site (i.e. forests or NATURA areas). There is only limited possibility of mining.
- Mining in sensitive habitats is allowed only under strict conditions and in cases of public interest for the benefit of the greek economy as a whole.
- Industrial activities directy related to extraction activities can be placed near the extraction sites, under the terms and conditions stated by the Constitution, the environmental, and the forestry legislation.
- Waste management areas must be placed near the extraction sites under the terms of the EU Directive 2006/21 etc.
Environmental permit of a mining industry
The environmental permit must be published before the mining exploration rights and also at the second stage i.e. of the application for obtaining the mineral rights (of exploitation). Mines are classified as projects resulting in major impacts (A1 category).
The environmental permit is issued by the Minister of the Environment after an environmental impact study is submitted. In case the mines lie in a NATURA area, then a specific study on the “ecological assessment” has to be submitted to the authorities.
The environmental permit is valid for 10 years or longer if the project has environmental management systems in place (14 years for EMAS and 12 years for ISO 14001).
Afterwards, a Technical Study is submitted in compliance to the Regulation on Mining and Quarrying activities
EXTRACTIVE INDUSTRY IN NATURA 2000 AREAS
According to the jurisprudence of the Greek Council of State (decisions 4785/2013, 4013/2013, 1990/2007 among others), an extractive activity in a Natura 2000 area is not excluded by principle. An appropriate assessment, prior to the approval of the extractive activity, is necessary in order to protect the integrity of the protected area.
Αn appropriate assessment of the plan or project on the site concerned implies that all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. The assessment cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the site concerned.
Therefore, the competent authorities cannot authorise a mine, where there is a risk that as a result, the ecological characteristics of those sites will be seriously compromised. That is particularly so where there is a risk that a certain mining activity will bring about the extinction of priority species present on the sites concerned.
EXTRACTIVE WASTE MANAGEMENT
EU Directive 2006/21 on the management of waste from extractive industries is transposed into Greek Law by the joint ministerial decision 39624/2209/Ε103/25.09.2009 (GG B’ 2076/2009).
The scope of this ministerial decision covers the “extractive waste”, namely waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries (art. 2 and art. 3 par. 2).
According to article 4 of the ministerial decision, the operator takes the necessary measures to ensure that extractive waste is managed without endangering human health and without using processes or methods which could harm the environment, and in particular without risk to water, air, soil and fauna and flora, without causing a nuisance through noise or odours and without adversely affecting the landscape or places of special interest. Τhe abandonment, dumping or uncontrolled depositing of extractive waste is prohibited.
Management of the extractive waste is allowed after an environmental permit and an operation permit are granted by the competent authorities (art. 11). Public participation during the procedure of granting the latter permits is provided by art. 12. The competent authority classifies the waste facility in accordance to the criteria set out in Annex III of the ministerial decision. A waste facility is classified under category A after a risk assessment and/or if it contains hazardous waste and/or hazardous substances.
The operator takes all measures necessary to prevent or reduce as far as possible any adverse effects on the environment and human health brought about as a result of the management of extractive waste. This includes the management of any waste facility, also after its closure, and the prevention of major accidents involving that facility and the limiting of their consequences for the environment and human health. Those measures are based on the best available techniques, without prescribing to the use of any technique or specific technology, but taking into account the technical characteristics of the waste facility, its geographical location and the local environmental conditions.
The operator draws up a waste management plan for the minimisation, treatment, recovery and disposal of extractive waste, taking account of the principle of sustainable development (art. 5).
The operator submits the waste management plan as an annex of the environmental impact study to the competent authority (art. 7 par. 1). Par. 2 and 3 provide for the assessment and the approval of the study and the waste management plan.
According to article 8 of the ministerial decision, in case of a Category A waste facility, the operator shall:
- draw up a major-accident prevention policy,
- put into effect a safety management system by drafting and submitting a safety report to the appropriate authority,
- put into effect an internal emergency plan,
- appoint a safety manager.
The competent authority (region) draws up an external emergency plan specifying the measures to be taken off‐site in the event of an accident. As part of the application for a permit the operator shall provide the competent authority with the information necessary to enable the latter to draw up that plan (art. 10).
Furthermore, the relevant ministerial decision provides for the following:
- Placing extractive waste back into the excavation voids for rehabilitation and construction purposes (art. 13).
- Closure and after-closure procedures (art. 15).
- Financial guarantee (art. 16).
- Transboundary effects (art. 17).
- Inspections (art. 18).
- Sanctions (art. 20).
- Environmental liability (art. 22).
1. Decision of the Undersecretary of the Ministry of Environment and Energy…. (Gazette B’ 1227/14-04-2011).
