One after another, two recently adopted regulations will accelerate the “green” transition of commercial and industrial buildings. Here’s a brief overview of the main changes.
I. New Rules for Energy Efficiency in “Commercial” Buildings
With regard to buildings in the “tertiary” sector (including, in particular, hotels, shopping centers, and office buildings), the Decree of July 23, 2019, establishes new rules for reducing final energy consumption inexisting buildings.¹ The goal is to reduce this final energy consumption by at least 40% by 2030, 50% by 2040, and 60% by 2050 compared to20102. This target can also be achieved by bringing the level of final energy consumption down to that of a new building in the relevant category.
The main criterion used to determine compliance with this regulation is floor area, which must be at least 1,000 square meters.
The requirements to reduce final energy consumption in commercial buildings took effect on October1, 2019.
The actions to be taken focus on the energy efficiency of buildings in the broadest sense, the installation of high-performance equipment and systems for monitoring and actively managing that equipment, the establishment of procedures for operating the equipment, the adaptation of the premises for energy-efficient use, and the behavior of the occupants.
The Government must specify, by decree, the targets for reducing final energy consumption for each economic sector, based onenergy intensity indicators.³ This decree was presented by the Government a few days ago and is expected to be published shortly.
The Decree provides for various options for adjusting the above-mentioned objectives, taking into account the negative consequences that the measures taken may have on the environment or on other economic interests. The owner and/or tenant of the building in question must apply to benefit from thisadjustment.⁴
The Decree also requires the owner ortenant⁵ of the building to report, via an electronic platform supervised by the government, among other things, the annual energy consumption of the building as a whole, of each part of the building, or of groups of buildings subject to the targets. This reporting requirement also applies to usage intensity indicators related to the activities housed in the building.
Information regarding final energy consumption and the goals for reducing that consumption must be provided to employees in the building.
If the owner or tenant fails to fulfill their reporting obligation and/or does not take the necessary actions to achieve the final energy consumption reduction targets, the locally competent Prefect may issue a formal notice requiring them to promptly submit an action plan. Failing that, or if these actions are not implemented, the Prefect may decide to make the information public (a mechanism known as “name and shame”) and impose a relatively small fine on the offending owner or tenant (1,500 euros for an individual, 7,500 euros for a legal entity).
II. Commercial and Industrial Buildings: New Requirement to Incorporate a Renewable Energy Generation System in Order to Obtain a Commercial Operating Permit
Under the terms of the new Article L. 111-18-1 of the Urban Planning Code, inserted by the draft “Law on Energy and Climate ” (“Energy and Climate Act”) recently adopted by Parliament, the issuance of a “commercial operating permit” for new industrial and commercial buildings with a footprint exceeding 1,000 squaremeters⁶ is contingent upon the installation of:
- Either a “production process” forrenewable energy7,
- Either a “green roof system” designed to ensure a high level of thermal efficiency and insulation and promote biodiversity, or
- Any arrangement that “leads to the same result.”
The same requirement applies—with no conditions other than the size of the right-of-way created—to new industrial or commercial buildings, to warehouses not open to the public, as well as to logistics centers and covered parking lots accessible to the public.
It should be noted that the authority responsible for issuing the commercial operating permit may, in accordance with the “Energy and Climate Act, ” decide to waive the above requirement if:
- The processes, systems, or devices necessary to comply with the requirement may increase a risk, or
- Their installation presents a technical challenge that cannot be resolved, or can be resolved under economically acceptable conditions, or
- The new building is located in an area subject to special protection (particularly with regard to historic monuments).
New buildings subject to regulations governing facilities classified for environmental protection may also be exempt from the requirement or eligible for specific accommodations. On this point, the Act refers to a decree to be issued in the coming weeks by the minister responsible for these facilities.
The Act specifies that this new requirement applies to all applications for a commercial operating license submitted on or after the Act’s effective date, which has just been published in the Official Gazette.
Given the significant changes introduced by these two documents, it is essential that project owners, property managers, architects, and engineering firms familiarize themselves with these new rules as soon as possible in order to anticipate their implementation and specific consequences.
We are available to assist you with any feasibility studies and to answer any questions you may have regarding your energy efficiency projects in light of these regulations.
1 The draft order issued pursuant to the “Tertiary Decree” (“Tertiary Order”) specifies that the baseline energy consumption is determined “based on bills and consumption data for the various types of energy consumed.”
2 These objectives were established inArticle 175 of the “ELAN” Act ” (Law No. 2018-1021 of November 23, 2018 , “on the development of housing, urban planning, and digital technology, ” currently Article L. 111-10-3 of the Code of Construction and Housing). The draft “tertiary decree” specifies that the results may be “pooled” across multiple buildings belonging to the same property portfolio.
3 According to the draft “tertiary decree,” these indicators are the “benchmarks that accurately characterize the status of an activity and its impacts in terms of energy consumption.”
4 The “Tertiary Decree” specifies the contents of the technical dossier that must be submitted to qualify for the exemption.
5 The question arises as to whether all of the obligations under the “Tertiary Decree” willultimately be borne by the landlord or the tenant. Neither the Tertiary Decree nor the Tertiary Order provides clarification on this point. The landlord and tenant will therefore need to reach an agreement on this matter in the lease agreement.
6 Article L. 111-18-1 of the Urban Planning Code specifies that this requirement may be waived for buildings classified as ICPE (“Installations Classified for Environmental Protection”). A draft implementing decree currently excludes buildings containing hazardous substances or mixtures from this requirement entirely.
7 Although it is not explicitly stated, solar photovoltaics—and even solar thermal—are the most obvious “methods.” Specific rules governing the installation of photovoltaic power plants on certain buildings classified as ICPEs are contained in Annex I of the draft implementing decree.