CMS Cameron McKenna LLP’s Olivia Jamison says there is still low awareness and understanding of the various schemes around Article 8 of the Energy Efficiency Directive, regarding mandatory energy assessments for non SMEs. But there is information available…
The Energy Efficiency Directive (Directive 2012/27/EU of the European Parliament and of the Council on energy efficiency) (the “EED”), introduces a number of measures designed to increase energy efficiency across the European Union. The ultimate objective is to assist the EU in saving 20 percent of the EU’s primary energy consumption by 2020, and of making further energy efficiency improvements after 2020. Five years ahead of that delivery date, one potentially complex aspect of the EED, set out within Article 8, is the introduction of mandatory energy assessments for non-SMEs in certain circumstances.
Organisations across all industries can be affected by these energy assessment obligations and if so, will have to consider their compliance position and in many cases may be required to undertake an energy efficiency assessment of their operations by December 2015.
Under Article 8(4), Member States must ensure that large enterprises (‘that are not SMEs’) carry out regular energy audits. Article 8(4) does not exclude any sector. There is an exemption to the requirement to conduct energy audits which include when those enterprises are implementing an energy or environmental management system ‘certified by an independent body according to the relevant European or International Standards’. In order for this exemption to apply the member states must ensure that the management system concerned includes an energy audit on the basis of minimum criteria set out in the EED.
SMEs are ‘enterprises as defined in Title I of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003; the category of micro, small and medium-sized enterprises is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50m, and/or an annual balance sheet total not exceeding EUR 43m’. The EED itself notes that “As a result, small branches in one Member State may need to carry out an energy audit every four years because they do not fall within the definition of SME.”
In the UK the Energy Savings Opportunity Scheme (“ESOS”) Regulations 2014 implement the Article 8 energy assessment requirements. The Environment Agency is the administrator of ESOS and has published helpful guidance. For example, the energy accreditation IS050001 including transport would be sufficient to comply with the requirement. In other Member States different local laws apply which are at different stages of implementation and the level of guidance is variable. This is creating some uncertainty for businesses.
In order to assist organisations who may operate in more than one member state, CMS have put together an online tool for 18 member states that can assist in understanding whether and to what extent you need to take steps to comply with these energy assessment obligations. The tool is in the form of an interactive map which you can click through to select and compare the position in your countries of interest.
Please contact Olivia here if you have any further queries