Incomplete implementation of the EU Energy Performance Directive in Italy has caused complexity and confusion. New national legislation is now being progressed to resolve matters.
Research published by the European Union, shows that more than one-fifth of current energy consumption and the emission of up to 30-45M tonnes of carbon dioxide per year could be saved by 2010 by applying more ambitious standards to new and refurbished buildings, a considerable contribution to meeting the Kyoto targets. As the EU is under pressure to strengthen legislation relating to improving the "energy performance of buildings", Member States are still getting to grips with implementing the 2002 Directive on the subject1. In this article, we take a look at the implementing process in Italy.
Implementation of this Directive was supposed to occur by 4 January 2006 but this has so far only been partially implemented in Italian law creating an incomplete framework in respect of the technical aspects of the provisions causing confusion and unnecessary complexity (this is discussed further below). New secondary legislation was proposed in March 2008 which will hopefully complete the implementation of the Directive and remove the continuing confusion. We have described the framework as implemented in Italy so far below.
Basic Requirements for Energy Performance Certificates
An "Energy Certificate" must be issued in relation to particular categories of buildings, and:
- Attached by the seller to the deed upon any transfer for value of its ownership of a building,
- Provided by the building contractor upon completion of prescribed construction or restoration works of a building
- Made available or delivered to the tenant by the owner of the property if the property is to be leased but only where the building has already obtained an Energy Certificate under the above provisions.
Decree 192/2005 defines an Energy Certificate as "the document (...) evidencing the energy performance [of a building], and any measurements of energy performance that the building may feature".
An Energy Certificate is valid for ten years but is to be revised any time modification works that affect energy performance of the building are carried out.
Transitional provisions apply to bring these requirements into force depending on the "category" of building concerned:
- Construction of new, or modification of existing buildings or demolition and subsequent reconstruction of buildings where the request for authorisation to carry out the works has been filed with the competent authorities after 8 October 2005.
- Upon any transfer for value of the whole property of existing buildings:
- of usable space of more than 1,000 square metres from 1 July 2007.
- of usable space of at least 1,000 square metres, from 1 July 2008.
- upon any transfer for value of individual units within a building, irrespective of usable space and type of use (e.g., residential apartments, offices) from 1 July 2009.
In addition, from 1 January 2007, energy certification has been a necessary condition to securing tax incentives for the restructuring of buildings made to improve energy efficiency.
Italy has incorporated the following exclusions from the requirement to obtain energy certificates as permitted under the 2002 Directive:
- Buildings of cultural or artistic importance.
- Industrial, agricultural and craftsmen's buildings not used as residential properties, where the interiors are heated solely to meet the requirements of the production process or use waste energy from the production process that could not otherwise be used.
- Individual buildings with a total usable surface area of less than 50 square metres.
Subject to certain limitations, all transfers of buildings for value require an Energy Certificate to be appended. These include transfers resulting from sale and purchase agreements (to be attached upon the transfer deed) but go much wider including for example transfers of easements relating to a building or transfers of right of common (to build or maintain a building on another's land).
No Energy Certificate is needed for the creation of mortgage and security interests, gifts and gratuitous dealings and preliminary agreements for sale and purchase (but see above in respect of the subsequent transfer).
Implications of Energy Certificates
There are some important implications for breaching the requirements to provide Energy Certificates depending on the source of the requirement. If the Energy Certificate is not attached to the transfer deed (or not made available or delivered in the event of a lease) the purchaser of the building or the tenant may determine that the agreement is void (nullità relativa).
Nonetheless, transfers for value and leases are handled in different ways:
- Leases: for the obligation to be discharged it suffices that the certificate has simply been made available.
- Transfers for Value: The obligation requires the certificate to have been attached.
This distinction may reflect a desire in the legislation to provide greater protection to a purchaser than to a tenant: indeed, a judgment declaring the agreement void would mean the purchaser could require the repayment of the price they had paid (in addition to any compensation for damages). This would be a much greater sum than would be due to a tenant (who would be entitled to repayment of the rent and possibly compensation for damages). Clearly this will impact upon the evidence that must be provided by anyone applying for a judgment voiding the agreement. While the purchaser has merely to prove that the document was not attached, the tenant faces the more difficult task of showing not only that no certified copy was delivered, but also that the original was not made available.
An Incomplete Framework
Implementation of the Directive in Italy began with Decree 192/20052 establishing the main framework for the Energy Certificate regime which came into force on 8 October 2005. This was supposed to be followed by full secondary technical legislation within 180 days of its entry into force. Legislative Decree 311/2006 was adopted on 22 December 2006. Whilst Decree 311/2006 established the abovementioned timetable compulsory energy certificates, it did not provide the full technical legislation necessary to carry them out and this has left a significant gap in terms of interpretation of the technical requirements for Energy Certificates.
In particular, national guidelines for determining the energy efficiency of buildings were omitted. At a national level, there are few clear standard measurements to be used when assessors test the energy efficiency of a property and the results across the country can be very different. Discussion of the necessary technical provisions has been repeatedly put back, with the result that the full application of the Directive has been hindered.
As a result of this gap, certain Italian Regions have already adopted specific technical legislation on the matter, using their powers under the Italian Constitution.
A confusing and complex situation
In particular, as of today, Lombardia Region, Liguria Region, Piemonte Region and Emilia Romagna Region have all adopted primary legislation complementing the national legislation and secondary technical legislation giving guidance on the technical aspects. For instance, the Lombardia legislation provides that, starting from 1 September 2007, the Energy Certificate must be attached to any deed of transfer for value of individual units in a building, irrespective of the amount of usable space and type of use, if such apartments have an autonomous heating system. This clearly imposes obligations which have to be implemented earlier than the national legislation under Decree 192/2005. As a consequence, in the event of purchase of a building located in Italy, in order to understand whether it is necessary to obtain an Energy Certificate, a potential purchaser / tenant must examine the provisions of both the national legislation and applicable regional regulations, if any. Having done so, the potential purchaser / tenant must apply the more restrictive provisions.
A hopeful resolution
On 20 March 2008 the Italian Government and Regions reached preliminary agreement on a draft national legislative bill dealing with the criteria and the minimum requirements to calculate the energy efficiency of buildings, as well as, on the requirements of the assessors authorised to carry out these tests. Moreover, the Italian Government and Regions agreed on the draft decree by the Ministry of Productive Activities, which would provide for guidelines aiming at regulating the activities between the Italian State and regions on this matter.
It is hoped that this proposed legislation will remove the current uncertainty and complexity and assist in providing a consistent and practicable system for improving building efficiency throughout Italy.
1. 2002/91/CE on the energy performance of the buildings.
2. Legislative Decree No. 192 of 19 August 2005.
Copyright Clifford Chance 2008
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