Current regulatory framework: The French continental shelf
The French continental shelf is subject to the provisions of Law 68-1181 of 30 December 1968 and its Decree 71-360 of 6 May 1971 as amended by Law 77-485 of 11 May 1977 and its Decree 85-1289 of 3 December 1985.
Mineral resources on the continental shelf belong to the mining category. Prospecting, exploration and exploitation activities (aggregates, hydrocarbons...) are therefore subject to the rules set by the Mining Code.
Prospecting and extracting marine materials
The regulations in force for the exploitation of marine materials previously varied according to their siliceous or limestone nature but were simplified by the promulgation of Law 97-1051 of 18 November 1997. Article 57 of this law, by deletion of the term “exploitation of marine amendments” in Article 7 of Law 76-646 of 16 July 1976, placed thereafter all marine materials [siliceous aggregates and calcareous substances (maerl and shell sands)] in the same legal framework.
The materials contained in the seabed of the maritime public domain, considered as products of mines, are therefore governed by the mining code. They are subject to Law 76-646 of 16 July 1976 (last amended by Law 97-1051) and its Implementing Decree 80-470 of 18 June 1980 (as amended).
Extractions of materials are subject to the joint acquisition of three administrative acts:
- mining title, pursuant to decree 95-427 of April 19, 1995 (amended);
- an authorisation for temporary occupation of the maritime public domain, known as a "federal authorisation", pursuant to decree 80-470 of 18 June 1980 (amended);
- an authorisation to begin work pursuant to decrees 80-470 of 18 June 1980 (amended) and 95-696 of 9 May 1995.
To this end, three instructions are required:
- a mining instruction for obtaining the mining title
- and a public domain instruction for obtaining the public domain authorisation,
- and then a mining instruction to obtain authorisation to start work.
of 6 July 2006 aligns the legal regime (regulation on the content of legal documents, extension of application to territorial level, creation of a consultation body integrated into the authorisation procedures, generalisation of public inquiries) with in particular the establishment of a joint procedure (simultaneous application for TM, AOTDPM and AOTR and AOTE). However, the separate procedure remains available to applicants who wish to do so.
Mining title application(1) (obtaining a mining title)
Mining title application is carried out in two stages:
- first at local level (prefecture)
- and then at central level (ministry).
(1) The same procedure applies to an application for an exclusive exploration concession or permit.
Local applications
The applicant will draw up his application in accordance with the procedures laid down in the decree of 29 June 1982 (amended) and submit it to the Minister responsible for mines (Ministry of Economy), who in turn will forward it to the Prefet of the “département” in which the holding will be located for instruction and, if applicable, to the Director of the Autonomous Port concerned.
After consulting the Maritime Prefet, the regional Prefet instructs the Regional Directorate of Environment, Planning and Housing (DREAL) to examine the application. The latter, having ascertained the "admissibility" of the application, after the competitive bidding procedure, consults the State services (in charge of equipment, maritime affairs, telecommunications, the environment, national defence, cultural affairs), the scientific and technical bodies concerned (primarily Ifremer), as well as the mayors of the municipalities concerned (Decree 85-448 of 23 April 1985).
Simultaneously, DREAL sends a copy of the application to the Fiscal Services to examine the federal authorisation application (see below).
A one-month public inquiry is conducted simultaneously.
Reviews by the different services and mayors, and the results of the public inquiry are the subject of a report prepared by the DREAL delivered to the Prefet. The latter convenes the local ad hoc commission (“mining commission”) as well as the applicants, for an official hearing. This Committee then provides its opinion on the application.
The Prefet then addresses the application, the documents of the public inquiry, the report and decision of the DREAL, together with his own decision, to the Minister in charge of Mines.
Central application
The Minister in charge of Mines consults the relevant ministries (Environment...) and the General Secretariat of the Sea. If a negative or very reserved opinion is expressed, an inter-ministerial meeting is held. The General Council for Economics, Industry, Energy and Technology (CGEIET) also provides its judgment.
In the case of a concession, the French Council of State provides an opinion on the draft decree granting the mineral title. Refusal is made by ministerial order.
In the case of an exclusive exploration permit, the decision takes the form of a decree.
Public Domain Application (Obtaining Public Domain Authorisation)
Based on the Code of public domain of the State, the Departmental Directorate of Territories and the Sea (DDTM) processes the application for temporary occupation authorisation of the marine public domain known as “state property authorisation”. This authorisation, issued by the Prefet of the department, is subject to the granting of the mining title (Decree 84-285 of 13 April 1984). It mentions, in particular, the tariff of the state property fee retained by the departmental director of Fiscal Services on the basis of the minimum and maximum rates set by the Minister in charge of Public Domains (Finance).
Since the determination of the fee does not take place at central level, it is not uniform throughout the national territory and may vary considerably between two neighbouring departments.
For the record... the regulatory framework of the exploitation of shell sands and maerl until the publication of the law 97-1051 of November 18, 1997.
The exploitation of calcareous marine resources, considered for a long time as fishery products, was not subject to any authorisation or fee, but to a simple declaration.
The activity was governed by the Ministerial Decree of 12 April 1963 regulating the extraction and removal of marine resources, as amended by the Decrees of 4 August 1976 and 24 August 1978. In this text, the marine resources are defined as follows (Article 1): "The marine resources shall include shell sands, maerl, sea ash, and sea mud." Applications to exploit these resources were addressed to the Maritime Affairs District, which posed a problem of consistency in the management of the maritime public domain. To rectify this situation, Circular No. 1138 D-80 of 29 February 1980 of the Directorate General of the Merchant Navy, transferred the state property application for any extraction of materials at sea to the Maritime Services of the Equipment; authorisations still issued by Maritime Affairs.
Lastly, Circular 85/544 of 10 December 1985 of the Secretariat of State responsible for the Sea entrusted the Maritime Equipment Service with the task of examining applications for authorisation to extract marine amendments by delegation of the Prefects of the four departments of Brittany(2) and the Channel.
(2) Brittany is the only French region with a high proportion of maerl and shell sands in its seabed. These materials are extracted primarily in Finistère and Côtes d'Armor.
Reference to main texts
“Continental shelf” texts
- Law 68-1181 of 30 December 1968 on the exploration of the continental shelf and the exploitation of its natural resources (JORF* of 31 December 1968).
- Law 77-485 of 11 May 1977 amending Law 68-1181 of 30 December 1968 on the exploration of the continental shelf and the exploitation of its natural resources (JORF of 12 May 1977).
- Decree 71-360 of 6 May 1971 implementing Law 68-1181 of 30 December 1968 (JORF of 15 May 1971) as amended by Decree 85-1289 of 3 December 1985.
- Decree 85-1289 of 3 December 1985 amending Decree 71-360 of 6 May 1971 implementing Law 68-1181 of 30 December 1968 on the exploration of the continental shelf and the exploitation of its natural resources, and Decree 80-470 of 18 June 1980 implementing Law 76-646 of 16 July 1976 on the prospecting, exploration and exploitation of mineral substances not referred to in Article 2 of the Mining Code and contained in the seabed of the metropolitan public domain (JORF of 7 December 1985).
“Mining” texts
- The Mining Code as last amended by the Law 2000-1207 of 13 December 2000 on Overseas Guidance (JORF of 14 December 2000).
- Decree 80-204 of 11 March 1980 on mining titles (JORF of 16 March 1980).
- Decree 80-330 of 7 May 1980 relating to the police of mines and quarries (JORF of 10 May 1980) repealed by Decree 99-116 of 12 February 1999 relating to the exercise of the police of quarries pursuant to Article 107 of the Mining Code (JORF of 20 February 1999).
- Decree 95-427 of 19 April 1995 relating to mining titles (JORF of 22 April 1995) amended by Decree 2001-50 of 17 January 2001.
- Decree 95-696 of 9 May 1995 concerning the opening of mining works and the police of mines (JORF of 11 May 1995) amended by Decree 2001-209 of 6 March 2001.
- Decree 98-970 of 26 October 1998 amending various provisions adopted under the Mining Code (JORF of 31 October 1998).
- Decree 2001-50 of 17 January 2001 amending Decree 95-427 of 19 April 1995 on mining titles and adapting its provisions to the overseas departments (JORF of 19 January 2001).
Specific "marine materials" texts
- Law 76-646 of 16 July 1976 on prospecting, exploration and exploitation of mineral substances not referred to in Article 2 of the Mining Code and contained in the seabed of the metropolitan public domain (JORF of 17 July 1976).
- Law 76-646 of 16 July 1976 on prospecting, exploration and exploitation of mineral substances not referred to in Article 2 of the Mining Code and contained in the seabed of the metropolitan public domain (JORF of 17 July 1976).
- Decree 80-470 of 18 June 1980 implementing Law 76-646 of 16 July 1976 (JORF of 27 June 1980), amended by Decrees 84-185 of 14 March 1984, 85-448 of 23 April 1985, 85-1289 of 3 December 1985 and 98-970 of 26 October 1998.
- Decree 84-185 of 14 March 1984 amending decree 80-470 of 18 June 1980 implementing law 76-646 of 16 July 1976 on prospecting, exploration and exploitation of mineral substances not referred to in article 2 of the mining code and contained in the seabed of the metropolitan public domain (JORF of 17 March 1984).
- Decree 85-1289 of 3 December 1985 modifying decree 71-360 of 6 May 1971 applying law 68-1181 of 30 December 1968 relating to the exploration of the continental shelf and the exploitation of its natural resources, as well as decree 80-470 of 18 June 1980 applying law 76-646 of 16 July 1976 relating to the prospection, exploration and exploitation of mineral substances not referred to in article 2 of the mining code and contained in the seabed of the metropolitan public domain (JORF of 7 December 1985)
- Order of 29 June 1982 relating to the content of applications for mining titles and authorisations for temporary occupation of the maritime public domain relating to substances not referred to in article 2 of the mining code and contained in the seabed of the metropolitan public domain (JORF of 8 August 1982).
“Public Domain” texts
- The State Domain code.
- Law 63-1178 of 28 November 1963 on the public maritime domain (JORF of 29 November 1963).
- Law 89-874 of 1 December 1989 on maritime cultural property and amending the law of 27 September 1941 regulating archaeological excavations (JORF of 5 January 1990).
- Law 2001-44 of 17 January 2001 on preventive archaeology (JORF of 18 January 2001).
- Decree 80-470 of 18 June 1980, as amended, applying Law 76-646 of 16 July 1976 (JORF of 27 June 1980).
- Decree 82-389 of 10 May 1982, on the powers of prefects and the action of public services and bodies of the State in the departments.
- Decree 84-285 of 13 April 1984 on the decentralization of procedures and modification of various provisions relating to the management of the State domain (JORF of 18 April 1984).
- Decree 2002-89 of 16 January 2002 taken for the application of law 2001-44 of 17 January 2001 and relating to administrative and financial procedures in the field of preventive archaeology (JORF of 19 January 2002).
- Decree of 11 December 198: application of article 13 of decree 80-470 of 18 June 1980 fixing the conditions for the collection and revision of the state fee due for the extraction of mineral substances not referred to in article 2 of the mining code and contained in the seabed of the French metropolitan public domain (JORF of 19 December 1981).
“Environment” texts
- The Environment Code
- Law 76-629 of 10 July 1976 on nature protection (JORF of 13 July 1976).
- Law 83-630 of 12 July 1983 on the democratisation of public enquiries and environmental protection (JORF of 13 July 1983).
- Law 86-2 of 3 January 1986 on the development, protection and enhancement of the coastline (JORF of 4 January 1986).
- Law 92-3 of 3 January 1992 on water (JORF of 4 January 1992).
- Decree 77-1141 of 12 October 1977 taken for the application of article 2 of law 76-629 of 10 July 1976 on the protection of nature (JORF of 13 October 1977).
- Decree 85-453 of 23 April 1985 taken for the application of law 83-360 of 12 July 1983 relating to the democratisation of public enquiries and environmental protection (JORF of 24 April 1985).
- Decree 93-245 of 25 February 1993 relating to impact studies and the scope of public enquiries amending decree 77-1141 of 12 October 1977 taken for the application of article 2 of law 76-629 of 10 July 1976 relating to the protection of nature and the appendix to decree 85-453 of 23 April 1985 taken for the application of law 83-630 of 12 July 1983 relating to the democratisation of public enquiries and the protection of the environment (JORF of 26 February 1993)
Old texts (shell sands and maerl)
- Decree of the Ministers of Public Works, the Navy and the Colonies, and of Finance, of 10 May 1876, relating to the extraction, on the seashore, of shellfish sands and other materials constituting marine amendments.
- Ministerial order of 12 April 1963 regulating the extraction and removal of marine amendments (JORF of 3 May 1963).
- Order 2615 P4 of 4 August 1976 amending the order of 12 April 1963 regulating the extraction and removal of marine amendments.
- Order 2372 P3 of 24 August 1978 amending the order of 12 April 1963 regulating the extraction and removal of marine amendments.
- Circular n° 1138 D-80 of 29 February 1980 from the Direction Générale de la Marine Marchande: competence in terms of extraction of materials at sea.
- Circular 85/544 of 10 December 1985 from the Secretary of State for the Sea: authorisations for the extraction of marine amendments - delegation of signature of the Commissioner of the Republic of the department.
Other texts...
- Law 71-1060 of 24 December 1971 on the delimitation of French territorial waters (JORF of 30 December 1971) [JORF: Journal Officiel de la République Française].
- Law 76-655 of 16 July 1976 on the economic zone off the coast of the territory of the French Republic (JORF of 18 July 1976).
- Decree 72-612 of 27 June 1972 relating to the maritime public domain taken for the application of law 71-1060 (JORF of 8 July 1972).
- United Nations Convention on the Law of the Sea, Part VI, 10 December 1982.