The implications of the amendment of regulations concerning the principles and time limits for the delivery of geological information pursuant to Article 82 of the Geological and Mining Law (GML) with respect to the holders of concessions granted before 31 December 2014 are an interesting question to examine.
The issue is fairly complex as holders of concessions for hydrocarbon exploration and prospecting are to be treated differently in this regard than the holders of concessions for other minerals being subject to mining ownership.
The amendment introduced statutory time limits for the delivery of geological data (within 14 days of the acquisition), samples (within 60 days of the acquisition) and results of sample tests (within 14 days of being prepared). At the same time, the Act removed the obligation for the concession holders to provide the interpretation of geological data. The scope of the geological samples to be delivered should be defined in the concession or in the decision approving geological operations. So far, the concession also set out the time schedule.
In principle, all the samples (cores and cuttings) were classified as long-term storage samples. The scope of samples to be provided comprised ½ of the core (vertical section) and ½ of the volume of other geological samples. The timing of delivery varied from several to 10+ months of the date on which the collection of core and other samples was finished.
Thus, the question arises, given that the existing concessions defined both the scope and the timing of sample delivery, which provisions are applicable here – those of the concession or the amended GML?
Transitional provisions are key here, as this is how the legislators determine, either explicitly or implicitly, the future of the rights and obligations previously specified in relevant decisions. In practice, two implementation approaches are possible: either through the interference in the binding force or the content of the individual norm directly, by way of a normative act, or by authorizing the governmental agency to interfere by way of a new implementing decision.
As far as hydrocarbons are concerned, the issue seems to be a bit simpler. In Article 8 of the Amending Act of 11 July 2014, the legislators opted for the first solution and stipulated that, in principle, the previously existing regulations were applicable to the concessions for hydrocarbon exploration and prospecting granted prior to the entry of the Act into force, provided, however, that with regard to the delivery of geological data and samples, and of the related test results, the new wording of Article 82 applies.
There is no relevant regulation for concessions concerning other minerals. The choice of the first option in this situation is consistent with the general law-making principle that in case of the absence of any transitional provisions new regulations should apply directly. However, on the other hand, there are specific obligations provided for under the decision and the issue deserves further investigation in order to verify whether this position is supported by legal doctrine and judicial decisions, and specifically whether the protection of acquired rights or the principle of sustainability of administrative decisions expressed in Article 16 of the Code of Administrative Proceedings (CAP).
For example, in its judgement of 21 April 2009 II SA/Kr 228/09, the Provincial Administrative Court in Krakow stated that: “the abolition or amendment of regulations which were the basis for the issuance of an administrative decision does not, in principle, directly affect nether the legal existence nor the binding force of such decision. The decision and the resulting individual norm exist, to some extent, independently of each other, and are immune to the changes of their legal determinants. Under administrative law, there is no direct relationship between general norms and relevant facts, on the one hand, and absolutely concrete rights and obligations, on the other, and this is exactly because these two aspects are always separated by an authoritative judicial act. A change of the legal situation may lead to the loss of the binding force by the act in question and, consequently to the abolishment of the resulting individual norm only when so provided for under the new regulations. Accordingly, in order to achieve such outcome, the legislators must not merely revoke the previous act but must also make a reference, either direct or implied, to the decisions concerning individual cases made on the basis of the revoked act.”
The resolution of this question will also depend on the position and practice of the concession authority and the state geological service as well as the outcome of the process of drafting the regulation of the Minister of the Environment on the disclosure of information based on current reports from the conduct of geological works to be published pursuant to Article 82a of the Geological and Mining Law.
It is worth noting that until a new regulation is published pursuant to Article 98 sec. 8 of the Geological and Mining Law regarding the scope and format of geological information collected in geological archives and the methods of record-keeping, organization of geological archives and the scope of information protection, the regulation on the collection and disclosure of geological information published pursuant to Article 98 sec. 2 of the Geological and Mining Law still remains in force. In § 4 sec. 4 and 5, the Regulation stipulates how the samples are to be delivered.
“4. The geological samples subject to long-term storage shall be delivered to the sample repository indicated by the national geological service by the date specified, as applicable, in the licence or the decision approving the programme of geological operations.
5. The sample delivery referred to in section 2 above shall be confirmed with a protocol, the copy of which shall be sent by the party delivering the samples to the competent authority with respect to, as applicable, granting the license or the decision approving the programme of geological operations.”