Mining Law and Raw Materials: The BBergG, Geothermal Energy and the CRMA

The framework of German mining law

German mining law is primarily set out in the Federal Mining Act (Bundesberggesetz, BBergG) of 1980, supplemented by ordinances – for example on environmental impact assessment for mining projects and on health and safety – and by state law on mining authorities. The BBergG governs the exploration, extraction and processing of mineral resources, the safety of mining operations, the protection of the surface and the rehabilitation of land after mining. It also applies to underground storage, such as gas storage, and to deep geothermal energy.

For decades, mining law was associated mainly with coal and potash. Today, its relevance comes from new sources: lithium from geothermal brines and hard rock, graphite and other critical raw materials, deep geothermal energy for heat networks, natural hydrogen and helium exploration, and underground storage of hydrogen and carbon dioxide. EU law adds a strategic layer through the Critical Raw Materials Act. This article explains the core concepts of mining law, the licensing and operating plan systems, recent German acceleration measures and the EU framework.

Who owns the minerals? Bergfrei and grundeigen

A central concept of mining law is the distinction between minerals that belong to the landowner (grundeigene Bodenschätze) and minerals that are not covered by land ownership (bergfreie Bodenschätze). Under § 3(2) BBergG, land ownership does not extend to minerals free for mining. Their exploration and extraction require a state licence, regardless of who owns the surface.

§ 3(3) BBergG contains the list of minerals free for mining, which includes metals such as lithium, energy resources such as hydrocarbons, salts, and – in the current version – helium and hydrogen.

In addition, all minerals in the area of the continental shelf, and, subject to old rights, all minerals in coastal waters and geothermal heat from boreholes of 400 metres or more, together with other energies occurring in connection with its extraction, are deemed free for mining. Near-surface geothermal energy, such as ground-source heat pumps, is therefore generally outside mining law and is governed by water law. Minerals such as clay, quartz sand and certain construction raw materials are either landowner's minerals or not subject to mining law at all, depending on the type.

Licences for exploration and extraction

Anyone who wants to explore for minerals free for mining needs an exploration licence (Erlaubnis); anyone who wants to extract them needs an extraction authorisation (Bewilligung) or mining property (Bergwerkseigentum) (§ 6 BBergG). These rights can be granted only to natural and legal persons and commercial partnerships.

• The exploration licence grants the exclusive right to explore for the specified minerals in a defined field, to extract minerals that must necessarily be removed during exploration, and to build the necessary facilities (§ 7 BBergG).
• The extraction authorisation grants the exclusive right to explore for and extract the specified minerals in a defined field, to acquire ownership of them and to build the necessary facilities (§ 8 BBergG).

Licences are granted for defined fields, minerals and periods, and the applicant must present a work programme and demonstrate financial capacity. Competing applications are decided according to statutory criteria, with the first applicant having priority in many cases. Field fees and production royalties may be payable to the state, subject to exemptions that differ between states. For geothermal and lithium projects, securing the right licence for the right minerals – including by-products such as lithium dissolved in geothermal brine – is a key early step.

Operating plans and environmental assessment

Licences confer rights; operating approvals come through operating plans. Exploration, extraction and processing operations may only be built, run and closed on the basis of operating plans prepared by the operator and approved by the competent mining authority (§ 51(1) BBergG). The system has several layers:

• Main operating plans (Hauptbetriebspläne) cover the construction and running of operations, generally for periods of no more than two years, extendable to between four and eight years where the authority can monitor the operation adequately (§ 52(1) BBergG);
• Framework operating plans (Rahmenbetriebspläne) give an overview of the project over a longer period; where a project requires an environmental impact assessment, a framework operating plan must be prepared and approved through a planning approval procedure with public participation (§ 52(2a) BBergG);
• Special operating plans cover specific parts of the operation, and closure plans cover decommissioning and rehabilitation.

The planning approval of a framework operating plan has concentration effect and is the main forum for weighing environmental and land use interests. For large mining and deep geothermal projects, preparing the EIA report and handling public participation are the most time-consuming parts of the process, so environmental baseline studies should start as soon as the licence is secured.

Mining damage, security and underground storage

Liability for mining damage

Mining law contains a special strict liability regime. If a person is killed or injured, or property is damaged, as a result of mining activities or facilities (mining damage, Bergschaden), compensation is owed under §§ 115 to 120 BBergG (§ 114(1) BBergG). Where damage of a type typical for mining – subsidence, uplift, compression, strain, cracks or vibrations – occurs within the area of influence of underground exploration or extraction, or of activities using boreholes, there is a statutory presumption that it was caused by the mining operation (§ 120(1) BBergG). For deep geothermal and other borehole projects, this presumption makes community relations, monitoring networks and insurance particularly important.

Security and rehabilitation

The mining authority can make the approval of an operating plan conditional on the provision of security (§ 56(2) BBergG), typically to cover the costs of closure and rehabilitation. Authorities have become more demanding about such security after experiences with insolvent operators. Investors should factor security requirements into financing structures and check existing security in acquisitions.

Underground storage, hydrogen and natural gas infrastructure

Underground storage facilities – for natural gas today and increasingly for hydrogen – are subject to large parts of the BBergG, including the operating plan system (§ 126 BBergG). Converting salt caverns from natural gas to hydrogen storage requires new operating plans and safety assessments. The permanent storage of carbon dioxide follows a separate regime under the Carbon Dioxide Storage Act, explained in our article on carbon capture and storage. Natural hydrogen and helium, now listed as minerals free for mining, may attract new exploration licences, although commercial deposits in Germany are not yet proven.

Deep geothermal energy and the Geothermal Acceleration Act

Deep geothermal energy is expected to play a growing role in decarbonising heat networks. The Geothermal Acceleration Act (Geothermie-Beschleunigungsgesetz, GeoBG) of 22 December 2025 aims to create a simplified and accelerated legal framework for exploration, extraction and use of geothermal energy and for heat pumps and heat storage (§ 1 GeoBG). Under § 4 GeoBG, the construction and operation of such installations are in the overriding public interest and serve public health and safety until net greenhouse gas neutrality in 2045, and they should be given priority in balancing decisions – except vis-à-vis national and alliance defence interests. The Act implements parts of the revised EU Renewable Energy Directive.

For project developers, the overriding public interest strengthens geothermal projects in decisions under mining, water and nature conservation law. Combined with the clarification that geothermal heat from boreholes of 400 metres or more is free for mining, it provides a clearer path for heat network operators and municipal utilities planning deep geothermal plants. Insurance against exploration risk and liability for induced seismicity remain important commercial issues, and early, transparent engagement with neighbouring communities is often decisive for acceptance of drilling sites.

The EU Critical Raw Materials Act

The EU Critical Raw Materials Act (Regulation (EU) 2024/1252) aims to secure the Union's supply of critical and strategic raw materials. It sets benchmarks for 2030: EU extraction capacity to produce at least 10%, processing capacity at least 40% and recycling capacity at least 25% of annual EU consumption of strategic raw materials, and no more than 65% of EU consumption of any strategic raw material from a single third country (Article 5).

Projects can apply for recognition as strategic projects. For strategic projects in the Union, the permit-granting process must not exceed 27 months for projects involving extraction and 15 months for projects involving only processing or recycling, with shorter periods for projects already in the permitting process when recognised (Article 11). Member States must designate national points of contact, and strategic projects benefit from priority status in administrative and judicial procedures. Companies also face supply chain obligations: large companies manufacturing certain strategic technologies must carry out risk assessments of their strategic raw material supply chains.

For German projects, the CRMA overlays mining law: its permitting deadlines apply to the overall permit-granting process, which involves several German authorities. Developers seeking strategic project status should prepare their application and permitting strategy together.

Beyond permitting, strategic projects can benefit from coordinated access to financing through EU and national instruments, and the Act provides for joint purchasing and stockpiling mechanisms. For German industry, the more immediate effect may be on supply chains: manufacturers of batteries, electric motors, semiconductors and other strategic technologies will need to understand where their raw materials come from and how concentrated their sources are. Contracts with suppliers should therefore address traceability, diversification and information rights, in line with the risk assessment obligations. Mining law and supply chain law are thus becoming two sides of the same raw materials strategy.

How TRW & Co helps with mining law

We advise raw material companies, geothermal developers, municipal utilities, investors and offtakers on mining law. We secure exploration licences and extraction authorisations, plan and support operating plan and planning approval procedures, coordinate water, nature conservation and immission control approvals, advise on CRMA strategic project applications and conduct regulatory due diligence in transactions and financings. We also draft offtake, royalty and joint venture agreements. Our work connects with our energy and infrastructure and planning and environmental practices and our articles on heat planning and carbon capture and storage. Please contact us. This article is general information and not legal advice.