Lignite in Polish State Policies as a Regulatory Instrument

Abstract

Poland is a country with significant lignite resources. Prospecting for and exploring lignite deposits, as well as lignite extraction, requires prior acquisition of an appropriate concession. As concessions serve as instruments for regulating economic activity—and thereby constitute a form of permissible restriction on such activity under the Polish Constitution—the legal provisions governing them must be enacted by statute. This article analyzes the role of state policies relating to lignite extraction and its use in electricity generation, and examines the concession procedure as a regulatory instrument, with a particular focus on one specific ground for refusing to grant a concession: inconsistency with the state’s raw material interest. The main research question addresses whether the incorporation of the state’s raw material interest as grounds for refusal complies with constitutional standards and whether policy documents—specifically the State Raw Materials Policy and the State Energy Policy—can effectively guide its interpretation. The analysis concludes that, while the constitutional framework permits such a ground for refusal, current policy documents require updates and greater specificity to ensure legal certainty and consistency in administrative practices.

1. Introduction

In 2018, the Polish legislator, through an amendment to the Geological and Mining Law [1], introduced a new and independent ground for refusing to grant a concession: the inconsistency of the intended activity—involving the prospecting, exploration, or extraction of a mineral from a deposit—with the state’s raw material interest. Prior to this amendment, the concept of the state’s raw material interest was neither recognized in Polish legislation nor discussed extensively in the legal or industry literature. The primary objective of this study is to assess whether invoking such an extra-legal concept satisfies the minimum constitutional [2] standards required to lawfully restrict the freedom of economic activity in Poland. Additionally, this study seeks to determine whether public policy documents, such as the State Raw Materials Policy [3] and the State Energy Policy [4], may serve as interpretive guidelines for specifying the notion of the state’s raw material interest.

Lignite remains a critical energy resource for Poland, and its role is expected to temporarily increase until lignite- and hard-coal-fired power plants are replaced by nuclear power plants [5,6]. For these reasons, it is crucial for both investors and concession authorities to develop clear interpretative rules regarding the concept of the “state’s raw material interest” as a ground for refusing to grant a concession for the prospecting, exploration, or extraction of minerals from a deposit.

Although the Polish legal framework governing lignite extraction is comprehensive, it diverges significantly from the approaches adopted by other European Union Member States undergoing energy transition. Countries, such as Germany and the Czech Republic, have introduced legal mechanisms aimed at phasing out lignite mining and encouraging the shift towards renewable energy sources. In contrast, Poland continues to prioritize the protection and potential exploitation of domestic lignite resources, reflecting a distinctive legal-institutional structure that emphasizes national resource sovereignty within the broader context of European decarbonization policies.

This paper employs a normative and doctrinal research approach, focusing primarily on the interpretation of relevant legal instruments and constitutional principles applicable to the concession process for mineral resource exploitation. The analysis is limited to legal evaluation and does not involve quantitative modeling, technological forecasting, or scenario-based assessments related to energy transition strategies. Although the primary focus is on lignite as an energy resource, the interpretative principles developed herein are intended to be broadly applicable to the assessment of the state’s raw material interest in relation to other types of mineral resources as well.

2. Lignite Deposits in Poland

Lignite is a strategic energy mineral and remains a key fuel for the operation of domestic power plants within the national energy system. The documented resources of this mineral in Poland are estimated at approximately 23 billion tonnes, the vast majority of which comprise energy-grade coals, with bituminous coals representing only 0.64 million tonnes of the total [7]. Currently, approximately 936 million tonnes of these reserves are being exploited across four active lignite mines. In 2023, the total annual lignite production in Poland amounted to approximately 42.5 million tonnes, with the Bełchatów Lignite Mine alone accounting for nearly 31 million tonnes. Historical data on lignite extraction for the period 1989–2023 are presented in Figure 1 (based on statistics provided by the Polish Geological Institute—National Research Institute).

These resources are currently exploited only in four mining plants, of which the two largest belong to PGE Górnictwo i Energetyka Konwencjonalna S.A. (Brown Coal Mine “Bełchatów” and Brown Coal Mine “Turów”), one to ZE PAK S.A. (Brown Coal Mine Konin opencast “Tomisławice”) and one to Kopalnia Węgla Brunatnego “Sieniawa” sp. z o.o. (Brown Coal Mine “Sieniawa”).

3. Lignite-Based Power Generation

Of the 17 active conventional professional power plants, 4 are lignite-fired: Bełchatów Power Plant (the second largest coal-fired power plant in the world in terms of installed capacity), Turów Power Plant, Pątnów I Power Plant, and Pątnów II Power Plant. The Bełchatów and Turów plants are operated by PGE Górnictwo i Energetyka Konwencjonalna S.A., while the Pątnów I and Pątnów II plants are operated by ZE PAK S.A.

The total installed capacity of lignite-fired power plants amounts to 8284 MW, representing over 12% of Poland’s total installed electricity generation capacity (Figure 2).

In 2023, lignite-fired power plants generated approximately 21% of the total electricity produced in Poland (Figure 3), a figure comparable to the share generated from renewable energy sources. Despite the increasing share of renewables, lignite- and hard-coal-fired plants continue to play a critical role in stabilizing the national power system, particularly given the intermittency of renewable energy production.

Consequently, until the planned nuclear power plants are commissioned and capable of fulfilling the role of system stabilizer, it is expected that conventional coal-based power plants will continue to perform this function within the Polish power system [6,8].

4. State Policies in Poland

4.1. National Policy Anchor

National policies are programmatic documents adopted by the Council of Ministers. According to Article 4(1) of the Act of 6 December 2006 on the Principles of Development Policy [9], the Council conducts a development policy through strategies, programs, programmatic documents, and public policies. A development policy is defined as a set of interrelated actions aimed at ensuring long-term and sustainable national development, socio-economic and spatial cohesion, enhancing economic competitiveness, and creating new jobs at national, regional, and local levels [9], Art. 2.

Under Article 5(7b) of the same Act, public policy is understood as a document that outlines the key determinants, objectives, and directions of the country’s development in a given domain or area and which directly derives from national development strategies. On this basis, the following should be assumed:

(1)

Public policy constitutes one of several formal instruments used to implement national development policy (others include development strategies, programs, and programmatic documents, such as partnership agreements, and also legal and financial instruments specified in legal regulations);

(2)

Both the Council of Ministers and individual ministers are obliged to implement public policies in accordance with the guidelines they contain.

The legislation does not prescribe a detailed structure for public policy documents. Instead, it sets basic requirements regarding their temporal scope (the period covered by the policy should not extend beyond the period of validity of the medium-term national development strategy) and outlines minimum content elements, such as the following:

(1)

Conclusions from the diagnosis of the social, economic, and spatial situation, prepared for the needs of this policy, in relation to the field or area covered by this policy;

(2)

Strategic objectives in the scope of this policy, taking into account the medium-term national development strategy and possibly another appropriate strategy;

(3)

Directions of intervention in the scope of this policy, taking into account the medium-term national development strategy and possibly another appropriate strategy;

(4)

Principles of implementation of this policy.

The most important public policies concerning lignite are the State Energy Policy [4] and the State Raw Materials Policy [3].

4.2. Public Policies and Sources of Law

Public policies are not sources of law [10]. Article 87(1–2) of the Constitution [2] provides a closed list of such sources, including (in hierarchical order) the following:

(1)

The Constitution;

(2)

Statutes;

(3)

Ratified international agreements;

(4)

Regulations;

(5)

Local law acts—within the area of operation of the bodies that established them.

Because public policies are adopted by a resolution of the Council of Ministers, i.e., by an act not mentioned in Art. 87 of the Constitution, they do not constitute a source of law in Poland. This is clearly indicated by the provision of Art. 93 Sec. 1 of the Constitution, which states that “Resolutions of the Council of Ministers and orders of the Prime Minister and ministers are of an internal nature and are binding only on organizational units subordinate to the body issuing these acts” (see also [11]). This means that they cannot constitute the basis for imposing any obligation on an individual (person). In addition, these documents must be consistent with generally applicable law (Constitution [1], Art. 93 Sec. 3; [12]). “Acts of domestic law cannot regulate issues that have been reserved for the matter of an act, regulation or act of local law, and therefore, they cannot interfere with the freedoms and rights of an individual acting outside the sphere of organizational subordination. In accordance with Art. 93 Sec. 2 second sentence [of the Constitution—authors’ note], acts of domestic law do not constitute the basis for decisions or similar authoritative decisions towards citizens, legal persons and other entities”. However, it is necessary to note the view expressed in the doctrine that denies strategies, programs, or plans the status of acts of domestic law [13], which would mean that the norms of Art. 93 of the Constitution will not apply to such acts either. These resolutions will therefore remain acts that only set out the general directions of administrative bodies and do not constitute the basis for acts of administrative authority over an individual. “The Constitution treats internal law as an insufficient basis for decisions. Its usefulness is also limited in the sense of making it the basis for court judgments. Both forms of application of internal law are not identical, however. The ratio legis of the constitutional recognition of internal law as an insufficient basis for decisions is to prevent a situation in which this law could regulate the status of participants in an administrative-legal relationship differently than statutes and regulations. As a result, administrative courts must respect this principle when ruling on the legality of decisions” [13].

4.3. State Energy Policy

The State Energy Policy (hereinafter referred to as: “PEP”) was adopted by resolution of the Council of Ministers No. 22/2021 of 2 February 2021 [4] and constitutes public policy. The policy outlines that the domestic demand for lignite will be met through local deposits, preferably located in close proximity to consumption points.

Although prospective deposits (Ościsłowo and Złoczew) and reserve deposits (Gubin) are mentioned, their future exploitation remains undecided and is ostensibly left to the discretion of investors. According to the policy document [4] (p. 8), the primary factors threatening the future utilization of lignite resources are the cost of CO₂ emission allowances and increasingly stringent environmental protection requirements. In practical terms, however, the decision to continue energy production based on lignite will not rest solely with investors. This is because key climate policy instruments—such as the pricing and allocation of emission allowances—are regulated jointly at both the national and EU levels. The policy explicitly acknowledges this institutional dependency by linking climate protection measures and escalating environmental obligations with the investment climate in the energy sector, projecting a gradual decline in demand for lignite as a result.

While PEP does not envisage a complete abandonment of lignite, it emphasizes the need to develop low-emission, flexible, and efficient technologies—including underutilized methods such as coal gasification [14,15]. Currently, however, the two largest entrepreneurs controlling lignite deposits are not conducting research in this area. This indicates that the assumptions made in this section of the Policy may be overly optimistic or not adequately aligned with the actual strategic directions of key market actors. Limited efforts to utilize lignite in sectors such as agriculture and the cosmetics industry are currently being undertaken by the operator of the “Sieniawa” deposit [16]. However, the scale of these activities does not justify the exploitation of the aforementioned perspective or reserve deposits, whose development would require substantial capital investment—economically viable at present only in the context of lignite’s use as an energy resource.

The State Energy Policy, in its current form, does not provide detailed guidance regarding lignite-related activities. Instead, it refers for specifics to the earlier Programme for the Brown Coal Mining Sector in Poland, adopted several years prior [17]. The programme outlines the prospective use of lignite deposits primarily in the context of their role as a fuel for conventional—albeit modernized—power generation units. While the document acknowledges the necessity of developing and implementing clean coal technologies, it falls short of specifying concrete measures or implementation pathways in this regard.

In the entire perspective until 2040, PEP 2021 provides for the following:

-

Protection of documented mineral deposits (unconditionally in the case of prospective and reserve deposits);

-

Conducting rational management of deposit resources;

-

The development and implementation of new, cleaner technologies for lignite processing.

The lack of clear guidance regarding the development of new lignite technologies is not the only shortcoming of PEP 2021. The document also fails to comprehensively address the social impacts associated with the energy transition [18]. It should further be noted that PEP 2021 was adopted a year before the outbreak of the conflict between Ukraine and Russia, rendering it outdated in light of the significant geopolitical shifts that followed. Notably, the policy does not take into account the consequences of sanctions imposed on the Russian Federation, which have altered the structure and direction of Poland’s energy imports, particularly with regard to hydrocarbons.

The assumptions for the update of Poland’s Energy Policy until 2040 (PEP2040), adopted by the Council of Ministers and based on the 2021 policy, along with the draft update prepared in the first quarter of 2023, were not subject to further legislative proceedings. Furthermore, the announced comprehensive update, initially scheduled for the turn of 2023 and 2024, was not implemented.

4.4. State Raw Material Policy

The process of developing the State Raw Materials Policy (PRMP) took a relatively long time, despite the fact that, as a non-binding strategic document, it does not carry normative authority and thus should not have posed major barriers from a legislative standpoint. In contrast to binding legal acts, which often provoke legal or social controversy (such as concession decisions or spatial planning for mining projects), PRMP sets general directions and priorities for the state’s raw material management without generating enforceable obligations. Nonetheless, after several years of preparatory work, the Council of Ministers adopted Resolution No. 39 on the State Raw Materials Policy on 1 March 2022 [3].

Although formally adopted after the outbreak of the full-scale conflict between Russia and Ukraine in February 2022, the document had been largely prepared prior to this geopolitical shift. As a result, many of its assumptions—particularly those relating to energy security and resource supply chains—did not fully reflect the post-invasion reality, including the European Union’s sanctions regime against the Russian Federation and the resulting embargo on hydrocarbon imports. Consequently, the PRMP was already partially outdated at the time of its adoption.

Among the key goals of the PRMP was the reduction in coal’s share in Poland’s electricity generation to 56–60% by 2030 [3], (p. 8). In the context of current geopolitical developments, it is particularly noteworthy to underscore the importance of national raw material security, especially as it relates to the process of a just transition. However, the State Raw Materials Policy (PRMP) fails to provide any analytical framework for the decommissioning of mining operations extracting hard coal and lignite, which continue to serve as Poland’s primary energy resources.

In the context of mine decommissioning, the State Raw Materials Policy (PRMP) merely highlights the need to protect mineral deposits, which should be understood as the obligation to safeguard unexploited mineral resources [3]. Notably, the legislator had originally included such an obligation in Article 129(1)(2) of the Geological and Mining Law (GML 2012) as part of the statutory duties associated with the mine closure. However, this provision was repealed as of 1 January 2015, effectively eliminating the legal requirement to ensure deposit protection during the decommissioning process [19].

In terms of projections, the PRMP envisaged a rise in lignite demand to 62–63 million tonnes annually between 2025 and 2030. However, this forecast is already questionable in light of observable trends: both actual production and consumption of lignite are declining, driven by tightening EU climate regulations and market pressure under the EU Emissions Trading Scheme (ETS). Indeed, the medium-term forecasts included within the same policy document acknowledge a downward trajectory, consistent with the EU’s goal of achieving climate neutrality by 2050.

Furthermore, the PRMP does not identify which domestic lignite deposits are expected to be exploited in the future. It also lacks any mention of prospective large-scale investments—such as the potential activation of the Złoczew deposit—that would be necessary to meet the assumed production levels. This lack of specificity significantly limits the document’s utility for evaluating the coherence and credibility of governmental action in relation to lignite policy. In this respect, the PRMP offers only a general framework, rather than a detailed roadmap for the future of Poland’s lignite sector.

5. Instruments of Regulation

5.1. Legal Nature of the Concession

The primary regulatory instrument governing the extraction of mineral resources and electricity generation in Poland is the concession issued by competent public authorities [20,21]. To assess the degree of regulatory control over these activities, it is essential to consider the scope of administrative discretion—that is, the extent to which a public authority may exercise judgment in granting a concession. The traditional dichotomy between binding (obligatory) and discretionary administrative decisions is often insufficient in practice. Certain legal frameworks oblige the authority to issue a concession when specific conditions are met, whereas in other cases, broader decision-making latitude is granted. This variability blurs the rigid binary distinction and introduces intermediate regulatory models that combine elements of both approaches.

The true legal nature of concession decisions—specifically, the extent to which they are discretionary—is best analyzed through the lens of statutory grounds for refusal, particularly in light of two key factors:

(1)

Whether the list of grounds for refusal is closed or open;

(2)

Whether the refusal is obligatory or merely optional once such grounds are established.

To facilitate the interpretation of the legal framework set out in Article 29 of the Geological and Mining Law (GML),

Table 1. Classification of Refusal Grounds for Concessions According to Article 29 Geological and Mining Law (GML).

Legal Clause	Ground for Refusal	Type of Refusal
Art. 29(1)	Refusal is required if the intended activity contradicts public interest, including: - national security, - state raw material interest, - environmental protection (including rational mineral management), or prevents proper land/marine area use according to spatial plans or legal provisions.	Mandatory
Art. 29(1a)	Refusal is required if the application overlaps in area and activity (or mineral type in case of exploration/extraction) with an existing valid concession.	Mandatory
Art. 29(2)	Refusal is required for underground waste storage if technically, environmentally, or economically justified alternatives exist.	Mandatory
Art. 29(3)	Refusal is permitted if public interest is at stake following a decision under the Act on control of certain investments (e.g., national security, environmental protection, rational resource use).	Discretionary

presents a structured summary of the grounds on which the concession-granting authority is either obliged or permitted to refuse the issuance of a concession. The table distinguishes between mandatory and discretionary grounds for refusal, indicating the relevant legal provisions and specifying the types of public interest concerns to which they apply—including national security, raw material sovereignty, environmental protection, and spatial land-use compatibility.

Only in cases involving a decision declaring the inadmissibility of exercising rights attached to shares or stocks does the concession authority “may refuse”—and not “refuse”—to grant a concession, rendering this ground discretionary in nature.

In the legal literature, two opposing views have emerged. According to the first, concessions under the Geological and Mining Law (GML) are of a binding nature. One interpretation states the following: “If, in the case of an entrepreneur applying for a geological or mining concession, none of the grounds for refusal listed in Article 56(1) (Act on the Freedom of Economic Activity) or in Article 29 of the GML occur, the concession authority cannot refuse to issue the concession. Therefore, if the entrepreneur meets all statutory (i.e., as provided for by the GML) and individually determined conditions set by the authority for the activity in question, the concession authority is legally obliged to grant the requested concession and cannot lawfully withhold it” [21].

The second line of thought supports broader administrative discretion, recognizing the non-binding nature of concession decisions. One commentator notes the following: “In public economic law doctrine, it is frequently emphasized that the legal basis for a concession decision includes elements of administrative discretion. This implies that, when issuing a concession within the framework of discretionary authority, the decision-maker must determine both the legal consequences and the content of the decision itself” [22].

It is also argued that concession authorities should retain a degree of flexibility in order to adapt to evolving socio-economic conditions [23]. In special provisions, administrative discretion is often accompanied by the phrase “the authority may”, signaling that the issuing body is not bound to apply the standard in a strictly mechanical way but rather must interpret and apply it within the scope of its judgment [24].

This discretionary character of concessions is also supported by scholars such as C. Kosikowski [25] and P. Tracz [26], who cite the opinion of M. Sieradzka and M. Zdyb [27]: “the legislator has determined that the legal form of granting a concession is an administrative decision, and considering the nature of concession decisions, it should be noted that they are so-called discretionary decisions”. Nevertheless, even proponents of discretionary concessions emphasize the need to clearly delimit the scope of the authority’s discretion [28].

5.2. General Clauses as Grounds for Refusing to Grant a Concession

The comparative analysis of the occurrence and interpretation of selected general clauses—such as public interest, important public interest, and state’s raw material interest—across constitutional, legislative, and strategic documents is summarized in the diagram below (Figure 4). As illustrated, while not all concepts appear uniformly across all documents, their consistent legal and strategic presence underscores their foundational role in shaping concession decisions and broader resource governance.

The inclusion of general clauses—such as “public interest”, “raw material interest”, or “rational management of mineral deposits”—as grounds for a refusal to grant a concession underscores the inherently discretionary nature of concession-related decisions. These clauses, being undefined in statutory law, function as normative tools that introduce flexibility into the legal system, enabling administrative bodies to adapt legal interpretation to changing socio-economic and environmental conditions [29].

Scientific consensus suggests that the concept of the “public interest” lacks a fixed, descriptive meaning. Instead, it is understood as a dynamic, context-sensitive construct, shaped by evolving societal values and policy priorities [30,31]. The notion of “rational management of mineral deposits” is inherently difficult to define, primarily because the assessment of what constitutes “rationality” must be made on a case-by-case basis. Such an evaluation requires an interdisciplinary approach, incorporating standards from Earth sciences (in relation to the geological characteristics of the deposit), technical disciplines (including mining engineering and extraction technologies), and economic considerations [32].

Attempts to define this concept in the doctrine will always leave a margin of indeterminacy [33]. By introducing general clauses as autonomous grounds for refusing to grant a concession, the legislator has not only authorized but also obligated the concession authority to interpret the meaning of these clauses on a case-by-case basis. Moreover, the authority must refuse to issue a concession if the proposed activity is found to be inconsistent with any of these clauses.

This raises the question of whether it is constitutionally permissible to introduce general clauses as grounds for refusing a license, given that Article 22 of the Constitution allows restrictions on the freedom of economic activity only by statute—and only in the name of an important public interest. Such a possibility appears to be accepted by P. Tuleja [34].

By their very nature as undefined legal concepts, general clauses require that their content be determined on the basis of extra-statutory considerations. As such, they serve as a vehicle for introducing into the statutory catalog of grounds for refusing concession elements that are not only extra-statutory but, in some cases, even extra-legal. Such conceptual categories include the state’s raw material interest, as discussed below.

In agreement with the Constitutional Tribunal’s position that the public interest is synonymous with the common good, the author notes the following: “The determination of what constitutes the common good is made primarily by reference to the constitutional principles set out in Chapter I of the Constitution. The principle of the common good is of fundamental importance (M. Safjan (ed.), L. Bosek (ed.), Constitution of the Republic of Poland. Volume I. Commentary to art. 1–86, Warsaw 2016, p. 627). The content of an important public interest is also determined by reference to other constitutional principles, such as social justice or the concept of a social market economy” [34].

In its judgment of 17 December 2003, the Constitutional Tribunal linked the admissibility of restricting the freedom of economic activity to the principle of proportionality, while simultaneously recognizing the public interest as a valid ground for such a restriction: “The admissibility of restricting economic freedom should also be considered from the point of view of the principle of proportionality, i.e., with regard to the protection of other constitutional values, in particular state security, public order, environmental protection, health and public morality, and the freedoms and rights of other persons. These values specify the more general concept of public interest” [35]. L. Garlicki [36] in turn, cited the theses from the Constitutional Tribunal’s judgment of 6 October 2014 [37], noting the following: “The Constitutional Tribunal identified four perspectives for assessing the constitutionality of the criterion of an “important public interest”:

-

First, the interpretation of the notion of “important public interest” must not be detached from the values protected under the principle of a democratic state governed by the rule of law. The introduction of restrictions on the freedom of economic activity that merely serve a statutory purpose, yet lack justification grounded in the values of a democratic rule-of-law state, constitutes a violation of Article 22 of the Constitution.

-

Second, only those restrictions on economic freedom that—in addition to being useful—serve the protection of state security, public order, the environment, public health, or the rights and freedoms of other persons, will be consistent with Article 22 of the Constitution. Not every public interest justifies a restriction on economic freedom; only such an interest that may be constitutionally recognised as “important” meets this threshold (cf. findings in judgment Kp 1/09).

-

Third, the interpretation of the term “important public interest” is inseparably linked to the internal hierarchy of constitutional values. The more valuable the interest being restricted, and the more severe the restriction, the more compelling the value must be that justifies such a limitation.

-

Fourth, the grounds that may justify statutory restrictions on the freedom of economic activity are not subject to expansive interpretation” [36].

6. The State’s Raw Material Interest as a Basis for Refusing to Grant a Concession

As a result of the amendment to Article 29(1) of the GML, which entered into force on 29 August 2018, the inconsistency of the intended activity with the state’s raw material interest was introduced as a new ground for refusing to grant a concession. Already at the stage of legislative work within the Council of Ministers, the Government Legislation Centre expressed concerns about this approach, pointing to the absence of any reference points that would allow this term to be defined.

Article 29(1) contains an open definition of the “public interest” explicitly distinguishing, first—state security, within which the state’s raw material interest is included—and second—environmental protection, which encompasses the rational management of mineral deposits [38].

Since the legislator has identified the state’s raw material interest as a component of the broader public interest—alongside other elements such as state security, environmental protection, and the implementation of the energy transition—it is subject to the same constitutional constraints that, according to the cited scholarship and case law, apply to the public interest in general. Therefore, in interpreting the general clause of the “state’s raw material interest” one must take into account other constitutional values, the need to serve the common good, and the limitations imposed by the constitutional principle of proportionality.

In examining those limitations, it is essential to determine the legislative objective behind introducing this specific ground for refusing to grant a concession, and whether that objective could be achieved by less restrictive means (in accordance with the principle of proportionality). Moreover, the state’s raw material interest must be distinguished from other values, such as environmental protection, state security, or other elements of the public interest, since the legislator clearly enumerated these as separate and independent grounds in the structure of Article 29(1) of the GML.

Although the legislator, when formulating the grounds for refusing to grant a concession, referred to the “public interest” rather than the “important public interest” there is no doubt that, in practice, this provision must be interpreted in a qualified manner—namely, as referring to an important public interest, rather than to any broadly defined or arbitrary one. This conclusion follows from the requirement that Article 29 Sec. 1 item 1 of the GML must comply with Article 22 of the Constitution, which explicitly refers to an “important public interest”.

Translating the above considerations into the context of the state’s raw material interest, it should be concluded that this concept can be described as follows:

(1)

Cannot be extended to include issues other than those strictly related to the raw material interest;

(2)

May therefore include only matters directly concerning mineral resources, and thus—for example, include the following:

(a)

Protection of the national resource raw materials base;

(b)

Ensuring the availability of essential raw materials for domestic industry;

(c)

Striving for self-sufficiency in raw materials (or reducing excessive dependence on foreign supply);

(d)

Stimulating the development of the mining industry to secure future demand for critical raw materials (e.g., for technologies still in the development phase).

Accordingly, it is necessary to distinguish the state’s raw material interests from other public interests, even if they may occasionally intersect or overlap in practice. Therefore, issues related to environmental protection, protection of jobs, or the country’s energy security will remain outside the scope of the concept of the state’s raw material interest—due to the fact that these are separate components of the concept of public interest, although they may be indirectly related to the state’s raw material interest.

Given the complexity and indeterminacy of the concept, it is crucial to identify normative and practical sources that can assist in shaping its interpretation within administrative practice. It is therefore essential to identify authoritative sources that may serve as a basis for interpreting the meaning of the state’s raw material interest. Given that this is a relatively recent legal concept—introduced only in 2018—it has not yet been substantively developed in legal doctrine or jurisprudence, having appeared thus far only in a limited number of administrative court rulings. As a general clause, it is inherently undefined, making it impossible to establish a precise definition or an exhaustive list of interpretative criteria. Nevertheless, certain sources appear particularly relevant in guiding its interpretation, including the following:

(a)

Constitutional values, such as the obligation to protect mineral deposits;

(b)

Strategic policy documents issued by the Council of Ministers related to raw material governance, such as the State Raw Materials Policy and the State Energy Policy, as well as sectoral strategies applicable to non-energy industries;

(c)

Academic and technical publications on the national mineral resource base, the availability of raw materials for domestic industry (including sources of import), and other issues relevant to raw material security.

Among these sources, particular emphasis should be placed on the strategic policy documents adopted by the Council of Ministers, which set out the state’s long-term objectives in the field of raw material management. In light of the above, it should be recognized that the State Raw Materials Policy (PRMP) serves as a source of interpretative guidance for one of the grounds for refusing to grant a concession—namely, the concept of the state’s raw material interest. For this reason, it is of critical importance that the PRMP is a document that can be described as follows:

(a)

Addresses as comprehensively as possible the issues outlined above in relation to raw materials, including current demand, projected future demand, and strategic directions for sourcing raw materials for the Polish economy;

(b)

Is up-to-date, meaning that it reflects the current state of knowledge.

The effectiveness and relevance of the State Raw Materials Policy can also be assessed through specific monitoring criteria established within the document itself. The State Raw Materials Policy (PRMP) identifies criteria for monitoring the implementation of the Policy, which may also be useful in assessing the document’s current relevance. These criteria, as specified in the PRMP 2022, include the following:

(a)

The number of concessions granted for the exploration, identification, and extraction of mineral deposits (excluding hard coal and lignite);

(b)

The number of approved geological work projects;

(c)

The number of drillings conducted, as follows:

-

Under concessions for exploration or identification carried out by private operators;

-

As part of the tasks performed by the entity acting as the state geological service.

The constitutional framework outlined above gains practical significance when examined in light of recent concession-related disputes in Poland. There are several notable cases in which its logic—either explicitly or implicitly—has shaped concession decisions. For example, in the case concerning the extension of the Turów lignite concession, the Ministry of Climate and Environment justified its decision primarily on the basis of ensuring national energy security, a priority directly linked to the state’s raw material interest. Similarly, in the dispute between KGHM and the Canadian company Miedzi Copper regarding copper deposits near Bytom Odrzański, the Ministry awarded the concession to KGHM. While the justification did not explicitly refer to the state’s raw material interest, it was widely interpreted as a move to support a strategic domestic enterprise, aligned with national resource security considerations.

By contrast, in the case regarding one of the Polish hard coal projects, the refusal to extend the concession deadline was based on “public interest” and “rational management of the deposit”. However, the Provincial Administrative Court in Warsaw annulled the decision, finding that the authority had not provided sufficient justification. This case illustrates that invoking broad clauses, such as “public interest” or “resource interest”, requires careful and transparent reasoning, especially when the refusal or granting of a concession significantly impacts investor rights.

These examples demonstrate how the idea of the state’s raw material interest has begun to inform administrative and judicial reasoning, even if its application remains inconsistent and often implicit.

The case law and administrative practice outlined above highlight the urgency of clarifying the constitutional limits of discretion, particularly to safeguard legal certainty and the rule of law. From a constitutional perspective, the use of general clauses as grounds for concession refusal remains acceptable only when interpreted within the strict limits imposed by the rule of law. The requirement that any restriction on economic freedom must pursue an “important public interest” entails not only legislative precision, but also substantive alignment with fundamental constitutional values. As such, administrative authorities are entrusted with a delicate task: interpreting undefined legal concepts without undermining legal certainty or exceeding the bounds of legitimate public objectives.

To fully appreciate the practical ramifications of the state’s raw material interest, one must also consider how it affects various stakeholder groups. The legal framework discussed above has direct and tangible relevance for key stakeholders, particularly investors, concession-granting authorities, and policymakers. For investors, understanding the role of undefined legal concepts, such as the state’s raw material interest, is critical when assessing regulatory risks associated with concession procedures. The potential for discretionary interpretation increases the uncertainty surrounding investment decisions, especially in sectors heavily reliant on secure and long-term access to mineral resources. Consequently, due diligence must extend beyond statutory texts to include an analysis of strategic state policies and administrative practices.

For concession-granting authorities, the use of undefined legal clauses necessitates a heightened commitment to applying decision-making standards that are consistent, transparent, and proportionate. Authorities must not only align their decisions with constitutional principles but also provide clear and well-substantiated justifications whenever invoking the state’s raw material interest as a ground for refusal.

Policymakers, in turn, bear the responsibility of ensuring that strategic documents, such as the State Raw Materials Policy and the State Energy Policy, are sufficiently detailed, up-to-date, and harmonized with broader constitutional and EU legal standards. Only a coherent and forward-looking approach to policy-making can reduce interpretative ambiguities and foster an environment conducive to stable and sustainable investments in the raw materials sector.

7. Summary and Conclusions

Considering both the constitutional freedom of economic activity and the permissible limitations thereof, the following conclusions may be drawn:

(1)

It is constitutionally permissible—pursuant to Article 22 of the Polish Constitution—to introduce statutory restrictions on economic activity on the grounds of the public interest. Consequently, the inconsistency of a proposed undertaking with the state’s raw material interest, understood as a distinct component of the public interest, may constitute an independent legal basis for refusing to grant a concession.

(2)

In each concession procedure, the licensing authority is required to assess the relevance of the state’s raw material interest in light of the specific circumstances of the case. Given the nature of this concept as a general clause, it cannot be assigned an abstract or universal meaning detached from the factual context. In other words, invoking the public interest as a basis for concession refusal must be concretely justified; the authority must explicitly identify which type of public interest—e.g., raw material interest—underpins its decision in a given case.

(3)

As an element of the public interest, the state’s raw material interest must be interpreted in light of other constitutional values, and its application is subject to the limitations imposed by the principle of proportionality, as enshrined in Article 31(3) of the Constitution.

Since the State Raw Materials Policy (PRMP) serves as one of the interpretative sources for defining the state’s raw material interest, it is necessary to emphasize that the current version of the document fails to meet the required standards of precision and relevance. As previously noted, the PRMP was adopted by the Council of Ministers after the outbreak of the conflict between Ukraine and Russia, yet it does not reflect its consequences—such as the restrictions on hydrocarbon imports from the Russian Federation. This leads to the conclusion that the PRMP should not be uncritically relied upon by concession authorities when determining the legal meaning and scope of the raw material interest of the state. Its utility in this regard depends on two essential conditions: substantive specificity and contemporaneity.

Similar reservations apply to the State Energy Policy (PEP), particularly due to the fact that it was adopted a year prior to the outbreak of the conflict. As a result, it does not account for the significant shifts brought about by the imposition of international sanctions, nor the resulting structural changes in the sourcing of energy resources within the Polish energy sector.

In 2023, lignite accounted for slightly more than 12% of total electricity generation in Poland. However, it played a disproportionately significant role in stabilizing the national power system, constituting nearly one-quarter of the so-called baseload energy capacity. This stabilizing role may expand in the near future, especially in light of the decline in electricity production from hard coal. Although the commissioning of Poland’s first nuclear power plant is currently scheduled for 2036, the phasing out of lignite as an energy source is likely to span many years. Only a revised and detailed version of the PEP [4] and PRMP [3]—reflecting updated forecasts regarding the role of lignite in the domestic energy mix—can serve as a valid normative benchmark for interpreting the notion of the state’s raw material interest in a manner consistent with constitutional standards and justifying its application as a legitimate basis for concession refusal.

To ensure that administrative decisions concerning the refusal to grant concessions are both constitutionally sound and operationally effective, it is necessary to strengthen the normative clarity of policy instruments. In particular, strategic policy documents—namely, the State Raw Materials Policy (PRMP) and the State Energy Policy (PEP)—should be periodically reviewed and updated. These revisions should aim to provide more specific regulatory benchmarks that are compatible with Article 22 of the Polish Constitution and the principle of proportionality enshrined in Article 31(3). A more detailed articulation of the state’s raw material interest within these documents would enhance legal certainty, improve administrative transparency, and reduce the risk of arbitrary decision-making.

Moreover, the findings of this analysis have broader policy implications within the context of the EU’s Green Deal and the accelerating energy transition. The undefined nature of the “state’s raw material interest” poses a challenge to legal certainty and investment predictability, particularly in sectors undergoing decarbonization. If Poland is to align its concession framework with European objectives of sustainability, transparency, and legal coherence, it will be essential to ensure that general clauses such as this are clearly grounded in updated and coherent policy instruments. Enhanced alignment between national resource policies and EU environmental targets would strengthen Poland’s legal-administrative credibility and contribute to a more coordinated European raw material strategy.