24 September 2015

Energy audits in Germany – duty of implementation

Energy audits in Germany

On 4 December 2012, the EU enforced the Energy Efficiency Directive 2012/27/EU. To implement the Energy Efficiency Directive in Germany, the Energy Services and other Energy Efficiency Measures Act (“EDL-G”) was recently adapted. The changes came into effect on 22 April 2015. One of the changes concerns the implementation of energy audits.

What is an energy audit?

An energy audit is an inspection, survey and evaluation of the energy sources and energy consumption of a building in order to ensure that the energy of the building is used in the most efficient manner and waste is avoided. The energy audits are carried out by so-called “energy auditors” who must comply with the requirements of Section 8b of the EDL-G. 

Duty to implement by 5 December 2015

The duty to implement the EDL-G is time critical and must be performed within the current calendar year: According to Section 8 (1), in conjunction with Section 1 (4) of the EDL-G, every company in Germany that is not a micro, small or medium-sized enterprise, as defined in the Commission Recommendation 2003/361/EC of 6 May 2003 (“SME”), is obliged to carry out an energy audit by no later than 5 December 2015. This obligation applies regardless of the business sector or field of activity of the company. The so called “Non-SME”s must then carry out an energy audit every four years from the date of execution of the first energy audit.

Which companies are affected, especially considering the global attribution?

The Act affects companies that (i) have more than 250 employees worldwide, or (ii) companies that employ less than 250 people, but generate an annual turnover of over 50 Million euro and over 43 Million Euros on their annual balance sheet total. The reference date for determining the threshold values for the first obligation period has been set as 31 December 2014. 

When calculating the number of employees, the annual turnover and the annual balance sheet total, any global connections to other companies must be taken into consideration. Only companies that are completely independent or hold less than 25% of the capital or voting rights in another company can be considered in isolation. Companies that hold between 25% and less than 50% of the capital or voting rights in another company will have to mutually and proportionally allocate the number of employees and the financial data of the respective other company to their own data in order to confirm their Non-SME status. If: (i) a company holds the majority of voting rights in another company through shares or through members; or (ii) the company holds any other comparable controlling rights in the other company; or (iii) there is a consolidated annual financial statement, then 100% of the number of employees and 100% of the financial data of that other company must be added to the company’s own data in order to confirm its Non-SME status. Individuals can also “connect” companies if they are completely or partially active in the same market or in adjacent markets. 

Therefore, the obligation to implement energy audits can also affect companies that would not fall under the obligation when viewed in isolation in Germany, but when calculating their data based on worldwide figures, they would lose their SME status. In other words, German SME subsidiaries of foreign companies and German SME Holding companies might also be obliged to carry out energy audits in Germany because of the need to consider global attribution. However, according to German law, only locations within Germany would be included in the scope of the energy audit.

What happens if an energy audit is not carried out?

In this case a fine of up to EUR 50,000.00 can be imposed. The same applies to Non-SME companies that untruthfully claim to be an SME. Because of the late implementation of the Energy Efficiency Directive in Germany, it will be examined on an individual basis whether a company could be reasonably be expected of to carry out an energy audit in due time. 

For more detailed information, please visit the link below to access a leaflet on energy audits produced by the German Federal Office of Economics and Export:

http://www.bafa.de/bafa/de/energie/energie_audit/publikationen/index.html


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