Summary of the main aspects of Decree of 23 July 2019
The obligation to undertake actions for reducing energy consumption in commercial use buildings has been defined initially by the Law of 23 November 2018, known as the "ELAN" Law. This obligation is inserted in Article L.111-10-3 of the French Construction and Housing Code. A Decree dated 23 July 2019 (published on 25 July 2019) specifies conditions for implementing this obligation.
The obligation to reduce buildings energy consumption as defined in the ELAN Law applies to owners (or tenants, if the lease expressly imposes such an obligation on the tenant) of buildings, parts of buildings or buildings complexes intended for commercial use. The obligation is:
- to reduce energy consumption by 40% in 2030, 50% in 2040 and 60% in 2050, in comparison to the "reference energy consumption" of the relevant building as recorded in 2010;
- to comply with an energy consumption level fixed in absolute terms in relation to newly erected buildings (depending on their respective category).
However, these objectives may be adjusted in three cases:
- where the building is subject to technical, architectural or cultural heritage constraints;
- where there is a change in the activity carried out in the building or in the volume of such activity; or
- when costs relating to implementation of these objectives are manifestly disproportionate to the expected benefits in terms of final energy consumption.
The Decree of 23 July 2019 specifies the process for implementing this obligation. The main provisions of the Decree can be summarised as follows:
1° Scope of the obligation: the obligation to reduce energy consumption applies to any building, part of a building or buildings complex for commercial use with a surface area greater than or equal to 1,000 sqm. The obligation does not apply to seasonal constructions, religious buildings and those dedicated to a defense, civil security or territorial internal security activity.
2° Determination of the objectives of energy consumption reduction: the Decree refers to further Ministerial orders which shall set-out (i) methods and elements of calculation of energy consumption reduction targets compared to an energy consumption reference, and (ii) the level of energy consumption fixed in absolute terms (for new buildings) for each deadline of 2030, 2040 and 2050. Actions to achieve the objectives shall relate to:
- energy performance of buildings;
- installation of high-performance equipment and devices for the control and active management of this equipment;
- operating conditions applicable to these equipment and devices;
- adaptation of the buildings to an energy efficient use and occupational behaviour rules.
3° Adjustments of energy consumption reduction objectives: objectives for reducing energy consumption can be adjusted when actions:
- create a construction risk to the building (in particular in relation to structural elements, enclosure and roof);
- cause significant changes in the exterior parts or architectural and decorative elements inconsistent with the rules applicable mainly to "protected" constructions; or
- do not comply with any other applicable easements.
Terms of adjustment of the objectives, including where the costs of the energy improvement actions are obviously disproportionate, will be determined by ministerial order.
4° Data collection and monitoring of the energy consumption reduction: a digital platform will be set up and owners or tenants (according to the provisions of the lease) will have to make certain statements; these statements concern (i) the buildings falling within the scope of the obligation, (ii) the activity operated and (iii) the energy consumption of the relevant building. Each year, starting from 2021, data relating to a given year will have to be sent by 30 September in the following year at the latest.
5° Control of compliance with the obligation: a verification of the achievement of the objectives will be carried out by the manager of the digital platform at the latest on 31 December 2031, 2041 and 2051. As part of the verification, persons subject to the obligation to reduce energy consumption may, according to procedures still to be specified by ministerial order, pool the results at the scale of all or part of their buildings subject to the obligation.
6° Publicity of energy consumption monitoring: final energy consumption and consumption objectives must be publicly disclosed by way of official signage or other means of information visible to employees and the public.
7° Control and administrative sanctions in the event of non-compliance with the obligation: where a person has not complied with the obligation to reduce energy consumption and has not complied with formal notices, fines may be issued. The amount of these fines will be up to EUR 1,500 for individuals and EUR 7,500 for legal entities.
Although the Decree is due to have come into force on 1 October 2019, ministerial orders required for full implementation of the obligation have not been issued yet.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.