ENERGY AUDIT IN THE EU: THE DEVIL IS IN THE DETAILS
HOW ARE EU MEMBER STATES
IMPLEMENTING THE NEW ENERGY
AUDIT REQUIREMENT OF ARTICLE
8.4 IN DIRECTIVE 2012/27/EC
ON ENERGY EFFICIENCY? WHY
IS EVERYONE SUDDENLY SO
INTERESTED IN THIS?
Directive 2012/27/EC (Article 8.4) introduced an
EU-wide requirement for large companies. The
latter will have to carry out an energy audit every
four years. The audit must be done by independent
qualified or accredited experts. However, large
companies which implement a certified energy or
environmental management system are exempt
from the energy audit obligation.
One reason for the rising interest in this new rule
probably resides in the closing deadline. Targeted
companies will have to carry out the first energy
audit by 5 December 2015. Another possible
reason is that this novelty will not only impact
undertakings in the manufacturing sector, but also
companies in commercial and service sectors.
The latter two are generally less often hit by
environmental rules than the former.
Beyond that, we better understood why our
clients seemed to struggle so much with this
particular requirement when we dove into the
local implementing laws to address our clients’
question. The simple question “Do I have to carry
out an energy audit?” had no clear answer. Even
more surprising was that no answer would fit the
law of all the EU countries. Rules were different in
the various countries considered.
First of all, although the Directive requires that all
EU Member States implement the energy audit
requirement by 5 June 2014, many of them still
have not done so (for example in October 2014
Germany, Finland, Spain).
Then, when we looked at countries which passed
a law on energy audits, we found that the local
regulators had translated the scope in various ways.
Let’s have a look at what Directive 2012/27/
EC says. The Directive does not define “large
enterprises”, but instead it states (Article 8.4 )
that “Member States shall ensure that enterprises
that are not SMEs (Small and Medium-sized
Enterprises) are subject to an energy audit.”
Therefore, in order to establish whom the
energy audit obligation targets, one needs to
refer to Article 2.26. It states: “SMEs means
enterprises as defined in Title I of the Annex of
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 50 million, and/or an annual balance sheet
total not exceeding EUR 43 million.”
This rather convoluted definition led the
Member States’ regulators to different
interpretations. For instance, Sweden1
and Denmark2 have retained that
the energy audit obligation applied
to companies that exceed both the
headcount threshold (≥ 250 employees)
and one of the financial thresholds
(annual turnover ≥ EUR 50 million
or balance sheet ≥ EUR 43 million).
France however considers that the
Enhesa Flash October/November 2014 | www.enhesa.com
energy audits must be carried out by companies
which exceed either the 250 employee threshold or
one of the financial thresholds . In other words, in
Sweden and Denmark a company must meet the
two conditions to be obliged to do an energy audit,
whereas in France only one condition is sufficient.
The United Kingdom (UK) has a third interpretation.
Like in France, a company that exceeds either the
headcount threshold3 or the financial one is caught
in the obligation scope. However in the UK, to be
included because of the financial threshold, an
enterprise must have an annual turnover above
EUR 50 million and a balance sheet above EUR
43 million4 (while the turnover threshold and the
balance sheet threshold are alternative financial
conditions in France, Sweden and Denmark).
As another interesting originality, the UK specifically
addresses the case of a group of undertakings. It
states that a small UK undertaking which would
meet neither the headcount threshold nor the
financial thresholds on its own would still be caught
in the energy audit obligation if it is part of a group
containing at least one large UK undertaking that
exceeds the qualifying thresholds5.
This case of corporate groups is not clearly
addressed in the other countries that we reviewed.
The above examples are just some of the features
that vary from one country to another when trying
to determine whether a company is caught in the
new energy audit scheme. Other examples of
questions with varying answers would be:
Does the pool of staff to consider include only
employees based in the country or also those
based abroad? Must the headcount be in full-time
equivalent? Are we talking about turnover including
VAT or excluding VAT? In countries not using
the Euro as currency (Pounds Sterling in the
UK, Swedish Crowns, Danish Crowns…), what
exchange rate should be used to check if the
financial