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1st Come / 1st Serve See Individual Country Review. -
Application Criteria See Individual Country Review. -
Duration See Individual Country Review. -
Right to Renew See Individual Country Review. -
Competing Licences See Individual Country Review. -
Mineral Coverage See Individual Country Review. -
Right to Mine See Individual Country Review. -
Criteria for Mining Rights See Individual Country Review. -
Tenure See Individual Country Review. -
Surface Rights See Individual Country Review. -
Government Take See Individual Country Review. -
Transfer Rights See Individual Country Review. -
Change of Control See Individual Country Review. -
EIA Process Pursuant to the EIA Directive an EIA shall be mandatory for quarries and open-cast mining projects, where the surface of the site exceeds 25 hectares (see Art. 4(1) and Annex I (19)). Quarries and open-cast mining projects which do not meet the size requirements, as well as underground mining projects, extraction by fluvial dredging, deep drillings and certain surface installations for coal, petroleum, natural gas, ores and bituminous shale extraction will be assessed on a case-by-case basis or according to criteria defined by the individual Member State to establish whether an EIA shall be required (see Art. 4(2) and Annex II (2)). The competent authority must provide reasons for the decision (Art. 4(5)) and issue such decision within 90 days (Art. 4(6)). Under the terms of the Directive exploration and prospecting activities are unlikely to require an EIA. Competent experts must conduct the EIA and the Directive provides clear content requirements. The EIA Directive does not provide specific timeframes for Member States to issue decisions on development consent; instead it requires that decisions be made Ôwithin a reasonable period of timeÕ (Art. 8a(5)). The challenging of decisions, acts or omissions shall also be determined by the individual Member States. We would view the Directive as a solid framework for the EIA process, which aims to ensure that clear processes and timelines are provided and that decisions on environmental permitting are clearly explained and objectively determined. Providing Member States include explicit timelines and appeal rights when the Directive is implemented a gold star rating will be awarded. At minimum we view the Directive as having the potential to ensure that all EU Member States have EIA processes that we would rate as ÔadequateÕ from the perspective of regulatory risk. 3
Power to Revoke See Individual Country Review. -
Age of Legislation See Individual Country Review. -
Other Factors See Individual Country Review. -
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Mining Overview Commentary plus sign

EUROPEAN UNION – MINING REGULATIONS

GENERAL

The European Union (or EU), for our purposes, means the 28 EU members (as of 1 December 2016), the four EFTA associated countries (Iceland, Liechtenstein, Norway, and Switzerland), as well as Greenland; it does not include the EU candidate and potential candidate countries of Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Serbia and Turkey. The list therefore includes Austria (1995), Belgium (1958), Bulgaria (2007), Croatia (2013), Cyprus (2004), Czech Republic (2004), Denmark (1973), Estonia (2004), Finland (1995), France (1958), Germany (1958), Greece (1981), Greenland (1973, but withdrawal in 1985), Hungary (2004), Iceland (EFTA), Ireland (1973), Italy (1958), Latvia (2004), Liechtenstein (EFTA), Lithuania (2004), Luxembourg (1958), Malta (2004), Netherlands (1958), Norway (ETFA), Poland (2004), Portugal (1986), Romania (2007), Slovakia (2004), Slovenia (2004), Spain (1986), Sweden (1995), Switzerland (ETFA) and the United Kingdom (1973). That noted the United Kingdom voted to leave the EU in June 2016, following a referendum and is due to start negotiating the country’s exit from the EU early in 2017.

We believe that a reasonable division of these countries may be made based upon whether or not it is ‘Old Europe,” Eastern Europe or Northern Europe, which we would divide as follows:

Old Europe                                              Eastern Europe                                     Northern Europe

Austria                                                          Bulgaria                                                        Denmark

Belgium                                                        Croatia                                                          Finland

France                                                           Czech Republic                                          Greenland

Germany                                                       Estonia                                                         Iceland

Greece                                                           Hungary                                                       Ireland

Italy                                                               Latvia                                                            Netherlands

Liechtenstein                                              Lithuania                                                      Norway

Luxembourg                                                Poland                                                          Sweden

Malta                                                             Romania                                                      United Kingdom

Portugal                                                        Slovakia                                                     

Spain                                                             Slovenia                                                      

Switzerland                                                

*                We do not believe it necessary to categorise Cyprus.

These categories enable some broad generalisations when it comes to mineral policy. With respect to the Northern Europe, mining generally plays a more important role in the economy (either directly or indirectly). Owing to the lack of employment and limited development in large parts of the country, mining projects are often viewed positively. In the case of Eastern Europe, the transformation from state-owned and controlled mines to private (and foreign) controlled mines is taking place at varying rates of speed. In these counties, modernisation of mineral policy must take place alongside the reformation of taxation, corporation and foreign investment laws. In Old Europe, mining has been confronted with decades of strong headwinds, centred around environmental and community impacts. Mining is still possible in many of these countries (e.g., Spain), but in others it is very difficult (e.g., France, though not necessarily its overseas regions such as French Guiana).

Europe has been endowed with a rich array of minerals and some of its mines date back to Roman times; the 18th and 19th century industrial revolution was partly fuelled by low-cost European mines. Today, most of the economic activity in the sector relates to processing operations, including refineries and smelters, which now source their feed from mines located largely outside of Europe. In the case of base and precious metals (excluding industrial minerals), there is not a single metal where Europe, as a whole, produces in excess of 10% of the world’s supply (British Geological Survey: European Mineral Statistics: 2008-2012). In 2016, Europe produced feldspar, kaolin, salt, chromium, gold, silver, zinc, titanium, lead and nickel.

PRINCIPAL LEGISLATION AND REGULATOR

Generally speaking, the European Union does not have jurisdiction to regulate mining matters; mining policy and regulation falls within the power of individual member states to regulate. Exceptions include competition law (including merger control), some aspects of environmental law, and state aid, over which the European Parliament asserts its authority. State aid is particularly relevant to developers within Europe, as the EU may deny the right of a state to subsidise a mining project through the provision of grants, the avoidance of taxes or other benefits. In one case, the European Commission determined that the Greek state had given state aid to European Goldfields (now Eldorado Gold) when it awarded some mining licences without going through a public tender process. On appeal to the European Court, the decision was affirmed in 2015.

The Strategic Implementation Plan for European Innovation Partnership on Raw Materials (2013) (SIP) demonstrates, however, that the EU sees itself as having a future role in promoting harmonisation in the area of mineral policy, such as:

  • Promoting best practices in mineral regulation; and

 

  • Promoting the equal rating of mineral development with other forms of land use, such as agriculture.

 

In furtherance of the SIP, the Ad Hoc Working Group (on the exchange of best practices on minerals policy and legal framework, information framework, land-use planning and permitting) was formed. It produced a report in 2014, which suggested that national member state policies should be encouraged to:

  • Adopt harmonious standards for presenting geological information, both in terms of schematic interoperability and linguistic interoperability;

 

  • Provide for a “one-stop shop” for processing permit and operational applications;

 

  • Address the confidentiality of information and its public use after a lapse of time;

 

  • Provide for financial incentives for certain projects; and

 

  • Adopt transparent and clear rules for obtaining exploration and mining licenses.

 

Whilst the EU lacks jurisdiction to regulate these matters, it can provide guidance as to best practices and encourage the adoption of common standards among its EU members. We would expect the EU to do so over time.

Grants and Forms and Mineral Title

See particular EU country.

Development Considerations

See particular EU country.

Environment Regulation

See European Union – Environment Regulation.

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Environmental Overview Commentary plus sign

EUROPEAN UNION – ENVIRONMENTAL REGULATIONS

GENERAL

The European Union (or EU), for our purposes, means the 28 EU members (as of December 2016) and the four EFTA associated countries (Iceland, Liechtenstein, Norway, and Switzerland), as well as the EU candidate and potential candidate countries (Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia, excluding Turkey). The list therefore includes Albania (candidate), Austria (1995), Belgium (1958), Bosnia and Herzegovina (potential candidate), Bulgaria (2007), Croatia (2013), Cyprus (2004), Czech Republic (2004), Denmark (1973), Estonia (2004), Finland (1995), France (1958), Germany (1958), Greece (1981), Hungary (2004), Iceland (EU associate), Ireland (1973), Italy (1958), Kosovo (potential candidate), Latvia (2004), Liechtenstein (EU associate), Lithuania (2004), Luxembourg (1958), Malta (2004), Macedonia (candidate), Netherlands (1958), Norway (EU associate), Poland (2004), Portugal (1986), Romania (2007), Serbia (candidate), Slovakia (2004), Slovenia (2004), Spain (1986), Sweden (1995), Switzerland (EU associate) and the United Kingdom (1973). That noted the United Kingdom voted to leave the EU in June 2016, following a referendum and is due to start negotiating the country’s exit from the EU early in 2017.

The above list excludes several states that merit some explanation, namely, microstates and two regional fringe states. 

  • Microstates: Andorra, Monaco, San Marino and Vatican City are sometimes called ‘microstates’ (one could also include Liechtenstein in this definition). All of these countries have less than 100,000 residents and sit next to one or more ‘protectorate states,’ which have certain special rights or claims over the state that are undisputed by the microstate in consideration of benign protection. Thus, for example, Monaco and Andorra have special relationships with France (which assumes the obligation to defend them – the latter also benefitting from Spanish protection), whilst San Marino and Vatican City are protected by Italy.

 

  • Other exceptions: Greenland and Turkey merit special mention. In the case of Greenland, it is an autonomous territory within the Kingdom of Denmark; whilst a microstate in terms of population, it is a very large island. From 1973 (when Denmark joined the EU) until 1985, it was part of the EU. In 1985 it withdrew from the EU following a referendum that resulted from a dispute with the EU over fishing rights and it then became associated to the EU under the Overseas Association Decision. With respect to Turkey, it has long had aspirations to join the EU, dating from 1999 and remains a candidate country, but there is some reason to believe that it will struggle to join the EU in the short term.

 

Generally speaking, the ‘microstate’ countries lack the financial, technical and administrative strength or competence to assume EU obligations, yet adopt certain rights and obligations where necessary to its functioning within Europe (e.g., adoption of the Euro).

The flora and fauna of Europe is vast and varied, but greatly diminished from historic levels, principally as a result of human activity. Since Europe’s land mass is interconnected with a vast array of other countries and regions, including Russia, Africa and the Middle East, it is difficult to treat the region as having a particularly distinctive set of flora and fauna and, indeed, there are numerous biogeographical regions within Europe ranging from Arctic to Mediterranean.

Whilst most of Europe was once treed, deforestation in favour of agriculture and other human uses has reduced areas of forestation to about 25% of the continent’s land mass. The impact of human activity on wildlife has been devastating with the extinction of the woolly mammoth and woolly rhinoceros in the last 10,000 years and the elimination of the Caspian Tiger, several types of bison and lizard and the Pyrenean ibex all in the last 100 years. Numerous animals are critically endangered, endangered or vulnerable, including the polar bear, European mink, marbled polecat, Iberian lynx, Persian leopard, hooded seal, European bison, and saiga antelope.

With respect to flora, there are vast arrays of land and marine habitats that give rise to innumerable types of plant species from open sea and tidal areas, continental salt marshes, sea dunes, natural grasslands, raised bogs, to rocky slopes and forests. As a result, Europe is blessed with tremendous diversity of flora with some 12,000 or more plant species. Plant diversity is particularly acute in the mountain areas around the Mediterranean and the Black Sea. Nevertheless, as stated in the EU publication “Life and Endangered Species”, “[s]ome 21% of Europe’s vascular plant species (flowering plants, conifers and ferns) are classified as threatened [and] [h]alf of the continent’s 4,700 vascular plant endemics are in danger of extinction [with] 64 hav[ing] already become extinct.” The report cites the causes of this threat as agriculture, forestry, habitat destruction, fragmentation and degradation, as well as direct impacts from economic activities and invasive alien species.

In order to help protect endangered species, the EU established the Natura 2000 initiative, which sought to protect areas of ecological importance (where endangered species were most vulnerable). The Natura 2000 programme is founded on the Habitat Directive and the Birds Directive. It incorporates a network of nature protection areas covering all 28 Member States. As described by the EU, “[s]tretching over 18% of the EU’s land area and almost 6% of its marine territory, it is the largest coordinated network of protected areas in the world. It offers a haven to Europe's most valuable and threatened species and habitats.”

PRINCIPAL LEGISLATION AND REGULATOR

The EU is founded on two main treaties - the Treaty on the Functioning of the European Union and the Treaty on European Union. These treaties have evolved from other treaties, been amended many times in substantive ways and are subject to numerous directives and other implementing measures and the political difficulties faced by the passage of the Treaty of Lisbon have slowed the integration of the EU significantly. The main regulator of European-wide environmental policy is the European Commission. As regards environmental aspects relevant to mining projects and activities, the EU regulates these through: 

  • the Mine Waste Directive (Directive 2006/21/EC), which introduces the requirement for a permit for building or modifying an extractive facility;

 

  • the Water Framework Directive (Directive 2000/60/EC) and the Groundwater Directive (Directive 2006/118/EC), which set water standards and introduce measures to avoid pollution;

 

  • the Habitats Directive (Directive 1992/43/EEC) and the Birds Directive (Directive 2009/147/EC), which establish conservation areas around which it will be difficult to permit a mine;

 

  • the Environmental Liability Directive (Directive 2004/35/EC), which is based on the “polluter pays” principle and requires operators to avoid environmental damage and take measures to restore impacts; and

 

  • the Environmental Impact Assessment Directive (“EIA Directive”), which requires the relevant competent authority in a given country to grant an environmental permit or authorisation for a project that has a negative impact on the environment only after public consultation and consultations with the relevant environmental agencies.

 

The European Commission’s authority in this area is increasing over time, which can be seen by the date of adoption of the foregoing pieces of policy and legislation (most of it being post-2000).

EIA PROCESS AND OTHER PERMITS

EIA Directive

The EU regulates the EIA process through standards that it expects EU countries to adopt. It does this through directives for the most part and these directives are legally binding. With respect to the EIA process, the EU passed the EIA Directive in 2011, and this was subsequently modified in 2014 (with compliance required by 15 May 2017). In the United Kingdom, the EIA Directive has been adopted into law pursuant to The Town and Country Planning (Environmental Impact Assessment) Regulations 2011, as well as regulations of a similar name in Scotland and Wales and, in the case of Northern Ireland, The Planning (Environmental Impact Assessment) Regulations (Northern Ireland).

The directive requires member states to: 

  • “ensure that, before development consent is given, projects likely to have significant effects on the environment … [are subject to an environmental impact assessment.] (Art. 2.1);

 

  • “endeavour to provide for a single assessment of the environmental impact of a particular project” (Art. 2.3); and

 

  • make available to the public information concerning projects likely to have a material impact on the environment through electronic and other means (Art. 6.2).

 

Pursuant to the EIA Directive, all quarries and open-cast mining projects where the surface of the site exceeds 25 hectares are treated as large impact extractive projects in respect to which an EIA is mandatory; other mines (including underground mines) are extractive projects that may or may not require an EIA depending on their environmental impact (see Annex I and II of EIA Directive).

Mine Waste Directive

With respect to the Mine Waste Directive (Directive 2006/21/EC), which applies to prospecting and mining operations, any waste resulting directly from such operations must be the subject of a waste management plan (WMP). The WMP must have as one of its objects the prevention or reduction in waste production, including the consideration of returning extracted waste back into the excavation area, and must also contain a closure plan. The WMP shall be reviewed every five years. Tailings and other waste rock areas constitute a waste facility and require a permit pursuant to Article 7 of the Directive, as well as a form of financial guarantee pursuant to Article 14.

There is no doubt that the Directive was meant to apply to exploration activities, as the definition of ‘prospecting’ is set out in the Directive as:

“the search for mineral deposits of economic value, including sampling, bulk sampling, drilling and trenching, but excluding any works required for the development of such deposits, and any activities directly associated with an existing extractive operation.”

That said, the scope of the Directive (Art. 2) indicates that (a) inert waste and unpolluted soil resulting from prospecting operations need not be subject to a permit, public review process or financial guarantee and (b) the competent authority may “reduce or waive the requirements for the deposit of non-hazardous waste generated from the prospecting of mineral resources, except oil and evaporites other than gypsum and anhydrite … as long as it is satisfied that the requirements of Article 4 are met [i.e., the general principles].” One of the key general principles is that Member States “take 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.”

Environmental Liability Directive

The Environmental Liability Directive (Directive 2004/35/EC) establishes the concept of ‘polluter pays’ into EU law. It also permits Member States to recover damages for pollution from the relevant ‘operator’ and provides a limitation period of five years for such purpose (Art. 10). The Directive defines ‘operator’ as a ‘natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity.’

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