The European Union non-discriminatory access principle and methods of granting authorizations in Polish geological and mining law

Abstract

The non-discrimination principle of the European Union has become a core basis of the Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994, which introduced the non-discriminatory access to prospection, exploration and production of hydrocarbons. According to this directive, the EU members were obliged to choose between the non-discriminating methods of granting authorizations of hydrocarbons: either an open door system or a licensing round system. Directive 94/22/WE caused changes in Polish geological and mining law related to introduction of the obligatory tender procedure for licenses (concessions) for prospection, exploration and production of hydrocarbons. As a result of case C-569/10, the Court of Justice of the European Union ordered the next changes in Polish law involving, e.g., the possibility to apply for Polish concessions by entrepreneurs with no legal seat or industrial plant in Poland. This article comments changes in Polish geological and mining law in 1994-2017, caused by Directive 94/22/WE and jurisdiction of the Court of Justice of the EU. It shows that, due to European legislation, the two-sided proceedings have been introduced depending on the type of mineral resources constituting the mining usufruct in Poland. These different procedures for granting authorizations of hydrocarbons and other resources may justify creation of new, distinct hydrocarbons law in Poland or introduction of non-discriminative procedures, irrespective of the type of deposit