If granting of a licence would be in conflict with the public interest, in particular related to the security of the state (including energy security) or the raw material interest of the state, or the protection of the environment, including the rational management of mineral deposits or the realisation of the energy transition, including the possibility of obtaining funds for the implementation of this transition, the Minister of Climate and Environment, acting as the concession authority, may temporarily suspend the granting of licences for: exploration and prospecting of mineral deposits (including hydrocarbons), mining of minerals specified in Article 10(1) (i.e. of key economic importance), mining of minerals from deposits located in maritime areas of the Republic of Poland (art. 29a of the Geological and Mining Act). The basis for temporary suspension of licencing for other types of activities specified in the Geological and Mining Act (including others covered by the tasks of the Minister of Climate and Environment) is the Entrepreneurs’ Law (art. 39 para. 2). The premises for such suspension are partly different. In both cases, the form of such temporary suspension is a notice of the competent concession authority, published in the Official Gazette “Monitor Polski”. Suspension of licencing is subject to judicial-administrative control. However, numerous details of the solutions in question raise significant doubts, in particular regarding constitutionality.

For over 40 years, the law has mandated the protection of mineral deposits, considered as ensuring that they can be mined, which can interfere with local development plans and landownership requirements. In hitherto practice, these solutions have operated to an extremely limited extent. The amendment to the Geological and Mining Act (GMA) made by the Act of 16 June 2023 introduces the concept of a "strategic deposit". The inclusion of a deposit in this category is decided by the minister responsible for the environment, following the premises set out in the GMA. This entails an obligation to shape the spatial development plan in a way ensuring that the mining of such deposit can be provided, including restrictions on the development (especially permanent development) of the property. The minister's decision is binding the spatial planning authorities and, indirectly, also the landowners. The aim of the study is to critically analyse the regulations concerning strategic deposits.

The interior of the earth's crust is sometimes used for tourism, recreational, therapeutical and even sports, entertainment or other purposes. Example includes closed excavations of underground mining plants, caves and other similar objects, especially of a military nature. Their legal situation is extremely varied and full of doubts. Most of the requirements of the Geological and Mining Act apply, mutatis mutandis, to the use (for the purposes described above) of underground excavations workings of liquidated mining plants. The space within which the said objects are located is not covered by land ownership; it is the subject of a mining property right vested in the State Treasury. There are no grounds to apply these solutions to other underground facilities. In most cases, they are located within the spatial boundaries of land properties. An additional difficulty is the fact that it is extremely difficult to establish the criteria separating the space covered by the boundaries of land properties from those constituting the subject of mining property. Both of the above-mentioned categories of underground objects may qualify for monument protection, but they do not always fill into the division of monuments into "movable" and "immovable" (real property) objects. Therefore, it is doubtful whether they can be protected as monuments at all.

According to the Supreme Administrative Court, Art. 143 paragraph 3 of the Geological and Mining Act (GMA) means that if it is not established who, without the required decisions, carries out prospective or exploration activity or mines an amber deposit, the increased fee for such violation of the law should be imposed on the landowner. This assessment is incorrect, as there are no grounds for interpreting this provision of the GMA in the manner described above. Furthermore, the sanction for illegal performance of geological works and the sanction for illegal mining are different. The Supreme Administrative Court also failed to notice that the said "increased fee" is de facto an "administrative fine" within the meaning of section IVa of the Code of Administrative Procedure, and therefore the decisions concerning it must be made taking into account the requirements provided for in Art. 189a et seq. of the above-mentioned code. Although the NSA revoked all judgments in this case, it erroneously ruled on the liability of the property owner for the consequences of actions performed without the consent and knowledge of the latter.

According to the Supreme Administrative Court, the Minister of Climate and Environment is the competent authority to examine the application for approval of the geological operations plan for drillings to explore deep ground. This assessment is fully justified by provisions of Art. 161 sec. 3 point 9 of the Geological and Mining Law. The circumstances of the discussed case may, however, justify the assessment that the planned geological operations were aimed for using the Earth's heat or for identifying geological conditions for the construction of a heat pump. The estimated depth of the borhole was to be 100 m. If this was the case, the geological operations plan was only subject to notification to the starost and did not require approval by any administrative authority. The analysis of the requirements shaping the conditions for the performance of geological works leads to the conclusion that they do not comply with Directive 2011/92 /EU of 13.12.2011 on the assessment of the effects of certain public and private projects on the environment.

By the decision of 20 March 2020, the Minister of Climate and Environment of Poland extended, until 2026, the license granted in 1994 for lignite mining from the Turów deposit, located in the area adjacent to the Czech Republic. In the opinion of the claimant, the said decision was issued in breach of the requirements of European law regarding environmental impact assessments, and the extraction of the mineral from this deposit (that started over 100 years ago) will cause the lowering of water level on the adjacent Czech territory. By an order of 21 May 2021 the Vicepresident of the Court of Justice of the European Union ordered the Republic of Poland the immediate suspension of mining of lignite from the aforementioned deposit, until the judgment concluding the case will be announced. The legitimacy of this decision is questionable for many reasons. First, the mining of the aforementioned mineral is not carried out by the Republic of Poland, but by an entrepreneur, who is a commercial company. Secondly, the immediate suspension of the mining will not stop the drainage process (and thus damage or the threat of its occurrence) on the Czech territory. Thirdly, the order to cease mining may be complied only with the requirements of Polish law, which requires taking appropriate decisions, in particular regarding the approval of a change in the mining plant operation plan. However, there is no legal basis for the implementation of the order described above. The circumstances of the dispute also justify the assessment that, in fact, it is of civil-law nature and concerns the liability of a Polish entrepreneur for damage caused (or likely to arise) in the territory of an adjacent state.

Despite numerous amendments, geology and mining legislation does not meet the current needs. This assessment refers to almost all of the issues governed by the Geological and Mining Act of 2011, as well as some solutions outside of it. First of all, it regards the scope of this Act and the unreasonable rigors of many of its solutions, that cause its evasion as well as discourage from the investment in the discussed area. Polish system of environmental impact assessment of the projects in the field of geology and mining is more rigorous than the requirements set by the European Union, while on the other hand it does not meet all of its requirements. Five years ago a complaint was submitted to the Polish Constitutional Tribunal regarding the conformity of Art. 41 of GMA that defines the concept of a party in the concession proceedings with the Constitution. Also the requirements for the licensing of hydrocarbons are excessively complicated. These problems (and many others) are well known, both to those concerned by the provisions discussed above and to the public authorities responsible for their application. Still, there is no information about initiatives aimed for amending the law in this regard. The aim of the article is to signal the key shortcomings of the aforementioned legal problems and the urgent need for their radical change.