European Union: Changed Legal Situation From May Due To EnEV 2014 (Energy Savings-Regulation 2014)

Last Updated: 2 April 2014
Article by Elmar Günther

Keywords: Energy Savings-Regulation, EnEV, European Union, EU, energy performance,

The new Energy Savings-Regulation (EnEV) comes into force as of May 1, 2014, which should primarily implement further European legal requirements for new buildings. However, the new version also has significant implications for the sale and ongoing management of existing buildings. Here, reference should be made to the obligation to present and hand over the energy performance certificate upon sale or lease, the mandatory disclosure of data from energy performance certificates when marketing in commercial media, and the tightening of modernization obligations. Infringement of any of these obligations may constitute an administrative offence. In contrast, the revision of the energy performance certificate itself has no impact on existing energy performance certificates. These remain valid for ten years from the date of issuance, unless a recalculation as if for a new building is required by material constructional changes.

Obligation to present and hand over upon sale or lease

Until now, an obligation to present existed only if the purchaser or prospective tenant requested the presentation of the energy performance certificate. If the seller or landlord did not present the certificate, it could be punished as an administrative offence. Upon the sale of an existing building, it was also customary to include in the purchase agreement an express waiver of the presentation obligation and thus do away with the risk of an administrative offence. This waiver option no longer exists. Due to the revision of Section 16 Para. 2 of the EnEV, the energy performance certificate, or a copy, must now be handed over or be notified by being displayed or laid out at the property. Even without an inspection, the original or a copy must be presented promptly, at least upon the buyer's request. Upon the conclusion of a purchase contract, the energy performance certificate (or a copy) must be provided immediately to the buyer. These provisions apply equally where the property is rented. Both the deliberate or reckless breach of the obligation to present the certificate in case of an inspection or upon request, as well as the deliberate or reckless breach of the duty to transfer, are considered administrative offences. Each may be punished with a fine of up to EUR 15,000.00.

The EnEV provides specific exceptions to this rule only for small buildings (i.e. those with less than 50 square meters of usable space) and monuments. No obligation exists in respect of demolition properties either as long as they are no longer being heated.

Mandatory disclosure for real estate ads

Another new introduction is the obligation of the seller, under Section 16a EnEV, to ensure that certain information about the energy performance certificate is disclosed in real estate ads in commercial media (printed or electronic). However, this applies only if an energy performance certificate exists at the time. For energy performance certificates issued after September 30, 2007, the required information includes that information which can be found on the certificate, depending on the type of certificate. Accordingly, new energy performance certificates do not need to be specially applied for in the case of advertisements.

Here again, deliberate or reckless breaches are considered administrative offences, which may incur a fine of up to EUR 15,000.00.

Tightening of the obligation to modernize

The retrofit requirements listed in Section 10 EnEV for existing buildings have been tightened even further. On the one hand, from 2015, boilers installed before January 1, 1985, or as soon as they are older than thirty years, may no longer be used and must be replaced. Previously, the cut-off date for installation was October 1, 1978. The exceptions for certain installations remain unchanged (low temperature and condensing boilers and heating plants with a nominal capacity of less than four or more than 400 kilowatts).

In addition, it has been clarified that the insulation requirement for accessible ceilings of heated rooms applies only to on the top floor ceiling to the attic. For the technical requirements to be met, reference is made to specific DIN standards. The cut-off date for proper insulation is December 31, 2015.

Both breaches of either of these two retrofit obligations or of the existing insulation requirements for pipes and heating fittings in unheated rooms have in general been re-designated as misdemeanors, punishable by a fine of up to EUR 50,000.00.

Outlook

This was certainly not the last change or tightening- up of the EnEV. But the obligations introduced with this amendment are already enough to keep existing property owners in suspense and cause considerable expense.

Originally published March 27, 2014

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© Copyright 2013. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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