Mineral extraction outside the mining area specified in the concession as a premise for establishing an increased fee under Article 140, section 1 of the Act of 9 June 2011 – Geological and Mining Law – commentary on the judgment of the Supreme Administrative Court of 12 February 2025, Case II GSK 1542/21

Abstract

The subject of this commentary is the judgment of the Supreme Administrative Court of 12 February 2025, II GSK 1542/21, in which the Court departed from the previous judicial line of adjudication, which considered mineral extraction outside the mining area specified in the concession to be an activity performed in gross violation of the terms and conditions of the concession, which should result in the imposition of an additional fee. The Supreme Administrative Court found that this activity is carried out without the required concession, which should result in the imposition of an increased fee. The commentary is approving. The approach proposed in the commented judgment better takes into account the essence of a concession for the extraction of minerals from a deposit as an act granting the right to perform this activity only within the space designated by the boundaries of the mining area. It also more closely corresponds to the structure of liability for violating the rules of performing this activity adopted by the legislator. Consolidating this approach may be of significant importance for practice, as the application of an increased fee, which due to the method of calculation is by its nature higher than the additional fee that would be established in a similar situation, will result in an actual “tightening” of the liability for the extraction of minerals outside the mining area specified in the concession.