Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

once, by a maximum of 6 months. A decision to grant a licence shall be published in the
Staatscourant. 144
The grounds for refusal are set out in Article 9. A licence can only be refused:
a. on the basis of the technical or financial capabilities of the applicant,
b. on the basis of the manner in which the applicant intends to carry out the activities for which the
licence is applied for,
c. on the basis of lack of efficiency and sense of responsibility, which shall include sense of
responsibility for society that the applicant has demonstrated in activities as meant in Article 6.1 and
Article 25.1, under a previous licence, or
d. if a choice has to be made out of two or more applications for a licence that within the scope of an
evaluation on the basis of the items 1.a., 1.b. and 1.c. have shown to be equal, in the interest of the
efficient and energetic exploration and production.
Here, it seems that the protection of the environment cannot be taken into account as a ground for
refusal. This interest has to be considered somewhere else in the process. This is also confirmed
by Article 40 Mining Act, which declares that it only applies in those cases where Chapter 8 of the
Wet algemene bepalingen omgevingsrecht (the Environmental Permitting (General Provisions) Act)
- in short: Wabo - does not apply in relation to a mining work, after which it states in paragraph 3
that the license can be refused on grounds of protection of the environment. Hence, it seems that
the Mining Act only provides for environmental protection if this is not possible in other regulation.
This restrictiveness towards the inclusion of the environment in the Mining Act stands in contrast
with the Hydrocarbons Directive, which makes it in Article 6 possible to attach several conditions
and requirements to the permit for the protection of the environment. The same applies with regard
to spatial planning for which this Directive offers more regulation. 145 However, these
(environmental) aspects are covered by other legislation. Moreover, this restrictiveness is also
visible with regard to the Mining Waste Directive, from which the Mining Act is also an
implementation. Remarkably, the Mining Act is very economical of nature, which is confirmed by
the fact that it does not take environmental aspects into account. This contradicts with the EU
Directives on Mining, which have mainly an environmental perspective.
Moreover, the license will contain several restrictions and conditions. According to Article 11, the
license will specify the activities, the period (not longer than necessary) and the area. The
delineation of the area shall be done in such a manner that the activities can be carried out in a
good possible manner from a technical and economical point of view. Furthermore, the operator is
under a duty of care with regard to
aspects such as the environment, soil
and safety (Article 33 Mbw). The
holder of the license must take all
steps that can reasonably be required
of him to prevent that as a result of the
activities carried out by using the
licence adverse consequences for the
environment are caused (a); damage
as a result of soil movement is caused
(b); safety is jeopardized (c); or the
interest of a systematic management
of reservoirs of minerals or of
terrestrial heat is jeopardized (d).
144
Article 17 of the Mining Act.
145
Woldendorp (2012), part 1, p. 5.
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