Following on from Decree No. 2019-771 of July 23, 2019, “regarding obligations to reduce energy consumption in commercial buildings” (known as the “Commercial Buildings Decree”), a recently published order is intended to provide the relevant stakeholders with concrete data to help them achieve their goals for reducing final energy consumption. Here is a brief overview of the applicable framework and the obligations that operators will soon be required to fulfill.
It is an understatement to say thatthe decree of November 24, 2020 , “amending the decree of April 10, 2020, regarding obligations to take measures to reduce final energy consumption in commercial buildings, ” published in the Official Journal of the French Republic on January 17, 2021, marks a crucial milestone for all operators subject to the “tertiary decree.”
For the record, Article L. 111-10-3 of the Construction and Housing Code establishes the obligation to implement, within commercial buildings as well as the commercial portions of “mixed-use” building complexes, measures aimed at reducing final energy consumption by 40% by 2030, 50% by 2040, and 60% by 2050, compared to a so-called “base year, ” which cannot be earlier than 2010. Alternatively, the operators concerned may choose to comply with reduction targets set by decree “in absolute terms” and calculated based on the final energy consumption of new buildings in the same category.
This requirement applies to buildings or parts of buildings housing “tertiary” activities—a category defined in the decree of November 24, 2020, as distinct from primary and secondary activities—provided that the floor area of these buildings is 1,000 m² or more. It therefore applies, in particular, to logistics warehouses, office buildings, public buildings, healthcare facilities, and retail stores.
Also pursuant to Article L. 111-10-3 of the Construction and Housing Code, the targets may be adjusted to take into account, for example, technical or architectural constraints or “costs of the measures that are clearly disproportionate to the expected benefits in terms of final energy consumption.”
Following the decree of April 10, 2020, the decree of November 24, 2020 is significant in that it sets “absolute” final energy consumption reduction targets for numerous categories of activity, thereby enabling operators to move on to the practical phase of implementing reduction measures.
To put it very simply, the maximum final energy consumption target is expressed in kWh/year/m² and is the sum of two components known as energy “uses”:
- The component of “energy consumption related to the general thermal environment and ventilation of the premises” (“HVAC”), which depends primarily on the climate zone and the elevation of the building or the part of the building in question;
- The component representing “energy consumption related to energy uses specific to the activity, as well as other building-related uses such as domestic hot water production and lighting” (“USE”).
In practical terms, the implementation of the “tertiary decree” relies primarily on a reporting requirement imposed on the relevant operators, whether landlords or tenants.
It would be in their best interest to specify, in the lease agreement or in an amendment thereto, the person or persons specifically responsible for filing the required reports, provided that the “tertiary decree” (provisions codified in sections R. 131-41 and R. 131-41-1 of the Housing Construction Code) refers to the “landlord and, where applicable, the tenant” as the authors of the declaration and encourages them to structure their contractual relationship accordingly, while giving them the option to delegate this responsibility to a third party, such as the energy distribution network operator.
The content of this declaration, which must be submitted annually via the OPERAT[1] online platform (set up by ADEME), is important, but two elements deserve special attention:
- The report must cover “the annual energy consumption, by energy type, of buildings, parts of buildings, or groups of buildings”;
- For operators who have decided to set their reduction targets “in absolute terms, ” this declaration must also include the chosen base year and the baseline energy consumption
Since most of the regulatory provisions have now taken effect, operators are reminded that they have until September 30, 2021, to submit their data for the year 2020.
An important clarification on this point was provided by the decree of November 24, 2020: given the public health situation over the past calendar year, it is specified that the baseline energy consumption may be reported until September 30, 2022, “based on a full year of operation between 2010 and 2020 comprising 12 consecutive months, ” as 2020 is not considered a reference year.
However, the decree does not make any changes to the timeline for reporting the energy consumption of the building in question, meaning that two deadlines would apply:
- The deadline for reporting a building’s energy consumption is September 30, 2021;
- The deadline for reporting the reference year and energy consumption for that reference year is September 30, 2022.
While the “financial” penalties for failing to comply with these reporting obligations and, more broadly, for failing to meet the targets for reducing final energy consumption may seem limited[2], it should nevertheless be noted that a “name and shame” mechanism is provided for in the “Tertiary Sector Decree.”
More generally, given in particular the complexity of calculating final energy consumption “in absolute terms, ” it is essential to promptly implement the necessary measurement tools and, for operators that do not have dedicated administrative departments, to contact providers of legal and technical solutions that meet the objectives of the “Tertiary Sector Decree.”
[1] Observatory on Energy Performance, Renovation, and Initiatives in the Service Sector.
[2] An administrative fine of up to 1,500 euros for individuals and 7,500 euros for legal entities.