Transposition of the Energy Efficiency Directive (EED) [EU]

The deadline for the transposition of the European Energy Efficiency Directive (Directive 2012/27 EU of 25 October 2012 – EED) expired on 5 June 2014, but Germany has not yet fully transposed  it. This especially concerns its provisions regarding energy audits.

I ) Requirements on Energy Audits

The Parliament is currently treating a draft law aiming to transpose Article 8 paragraphs 4-7 of the EED (Directive 2012/27/EU) through a modification of the law on “energy services and other energy efficiency measures of 4 November 2010 (“Gesetz über Energiedienstleistungen und andere Energieeffizienzmaßnahmen /  EDL-G). The amendments are contained in Article 1 of the proposal which was adopted on 5 November 2014 by the Federal Cabinet  before transmission to Parliament. According to our information, the first reading took place on 18 December 2014 in the Bundestag and the text is planned to enter into effect in spring 2015.

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If the draft enters into effect in its current form, all companies which do not fall under the EU definition of Small and Medium Enterprises (see introduction of a new §1 number 4 EDL-G which refers to the recommendation of the Commission 2003/361/EG dated 6 May 2003) will regularly have to carry out energy audits. [For recall: the EU definition of SME’s concerns companies with a head count of less than 250 employees, a turnover smaller or equal to 50 million or a balance sheet total of maximum 43 million Euro].

The Government expects about 50.000 companies to be concerned by the new obligations in Germany. According to its estimations, based on those of the European Commission, companies will have to spend about 4000 Euros each per year in average to comply. But interest groups consider probable costs to be much higher for companies with several sites especially if these are not similar in construction.

The draft law EDL-G contains the following central points:

1.        Obligation to carry out energy audits

According to the new §1 number 4 EDL-G which refers to the recommendation of the Commission 2003/361/EG dated 6 May 2003) companies with a head count of  more than 250 employees, a turnover greater than 50 million or a balance sheet total of more than 43 million Euro] are concerned. Audits need to be carried out until 5 December 2015 (see § new § 8 paragraph 1 number 1 EDL-G).

After that, the audit needs to be carried out and supervised at least every 4 years (see new § 8 paragraph 1 number 2 EDL-G) by qualified experts (see § 8 b EDL-G). Minimum requirements for the energy audits are set in § 8a EDL-G. For example they need to comply with relevant European and International Norms such as EN 16247-1.

According to the norm DIN EN 16247-1 the stages of the energy audit would be as follows:

  • Energy audit launch meeting
  • Collection of data regarding energy consumption
  • Site Visit
  • Analysis
  • Preparation of a report
  • Closing meeting

Please note that the above obligation also applies to decentralised sites and companies of which a company has the majority of shares.

The  Federal Authority for Energy Efficiency,  BFEE (Bundesstelle für Energieeffizienz) will keep a list of companies and persons that offer energy audits as a service (see § 7 as modified)  [they are included insofar as they are fit and proper to perform their functions respecting § 8b EDL-G].

The Federal Office of Economics and Export Control, BAFA (Bundesamt für Wirtschaft und Ausfuhrkontrolle ) may ask for proof of the energy audits to be provided (see § 8c EDL-G). Non-compliance with the obligation to carry out energy audits can entail fines of up to 50.00 Euros.

2.       Exemption from the obligation to carry out energy audits for companies with an Energy Management System or an Environmental management system

§ 8 paragraph 3 EDL-G exempts those companies from the obligation to carry out energy audits which have a certified Energy Management System (compliant with DIN ISO 50001, version December 2011) or an Environment Management System respecting the requirements detailed under §8 paragraph 3 number 2 EDL-G). This especially may be the case for the manufacturing industry, particularly those companies having applied for compensation under electricity and energy regulations (“Spitzenausgleich”). [For details on the latter compensation, please see Stromsteuergesetz  (StromStG) of 24 March 1999, particularly §10 and Energiesteuergesetz (EnergieStG) of 15 July 2006.]

According to the motivations of the draft, different systems and modes of documentation can be used for different parts or sites of a company. For certain companies which have a wide range of ‘not energy-relevant’ sites or parts of an entity, the energy management or environmental management system (which exempts from the obligation to carry out energy audits) may be carried out “with proportionate effort/expense”.

 3.    Nomination of an energy officer (“Energiebeauftragter“)

This is no explicit legal requirement, nor explicitly required by ISO 50001. Nevertheless it seems adequate to nominate either an in-house or external person responsible for energy questions to coordinate the audits.

II) Further topics related to EED requirements on energy efficiency

Regarding another central point of the European EED, the obligation to carry out a cost-benefit analysis regarding the cogeneration of heat and power when building or modernizing power plants or industrial installations (see e.g. Article 14 number 5 and annex IX EED), please particularly note the draft decree on the transposition of article 14 of the EED regarding energy efficiency and modifying several environmental texts (“Verordnung zur Umsetzung von Artikel 14 der Richtlinie zur Energieeffizienz und zur Änderung weiterer umweltrechtlicher Vorschriften“).

The article 1 of the decree contains a new decree entitled “Cost-benefit analysis for the cogeneration of heat and power (KWK-Kosten-Nutzen-Vergleich-Verordnung – KNV-V) which applies to the installation or modernisation of heating installations with a capacity of more than 20 MW. For cases without use of waste heat, the application for the authorisation to the responsible authority will e.g. have to include a profitability analysis including a cost-benefit comparison.

Among other, the draft further contains related amendments to

  • the Decree on the limitation of emissions of volatile organic compounds  (Verordnung zur Emissionsbegrenzung von leichtflüchtigen halogenierten organischen Verbindungen) in the version of 10 December 1990,
  • the Decree on installations requiring authorisation (Verordnung über genehmigungsbedürftige Anlagen) of 2 May 2013,
  • the Decree on Emission and Accident Officers (Verordnung über Immissionschutz- und Störfallbeauftragte) of 30 July 1993,
  • the Decree on large combustion plants, gas turbines and combustion installations (Verordnung über Großfeuerungs-, Gasturbinen und Verbrennungsanlagen) of 2 May 2013.

To our knowledge, the draft it is currently still being processed by the Chamber of the Länder, Bundesrat.

III. Overview of EED transposition in Germany

The communication platform of the German Energy Agency (dena) offers a full overview of what Germany has done transpose the EED, including governmental obligations.

By way of conclusion please also note the following Federal texts regarding energy efficiency

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