For many years there has been a legal discussion between companies and municipalities. The core of that discussion is that many municipalities believe they can force companies to take energy-saving measures. Simply because - in short - certain measures in an industry are considered "best available technology" and the payback period of investing in that measure is generally less than 5 years.
A ruling by the Administrative Law Division on May 23, 2018 shows (finally) that only this reasoning is not valid. It must always be assessed whether an energy-saving measure for the specific establishment itself is recouped within 5 years. If this is not the case, a measure cannot be imposed compulsorily.
What was going on?
In this case, seven Aldi supermarkets were required by various city districts in Amsterdam to cover its refrigeration units. If they failed to do so, penalties were forfeited. The city districts based this on Section 2.15 of the Activities Decree. This stipulates that - in short - anyone running an establishment must take all energy-saving measures that can be recovered within 5 years.
For the supermarket industry in a general sense, research has been carried out, from which it follows that the investment in covering (vertical) refrigeration units is recovered within 5 years. This is evident from, among other things, information sheets prepared by SenterNovem/Infomil following the studies conducted. Hence, the city districts consider themselves authorized to impose the obligation to take this measure.
Industry level or establishment level?
Aldi disagrees with this position. Aldi argues in this regard that it has already implemented several energy-saving measures in its supermarkets. Therefore, for the supermarkets where the city districts have imposed the obligation to cover, the payback period of taking measures to cover its refrigerated cabinets will be longer than 5 years.
In doing so, the Department must answer the question of whether a branch-level or establishment-level calculation should be made.
The Division takes a principled stand on this: it must always be considered whether an energy-saving measure for a specific facility is profitable (will pay for itself within 5 years). Although general industry data may be used as a starting point, there is always room for business owner to demonstrate that an energy-saving measure has a payback period of more than 5 years.
Endless discussion: the Activities Decree simply sets the standard
The Division ignores the position of the city districts that this leads to endless discussion and uncertainty in practice about what an establishment can be obliged to do. To the extent that these consequences would occur at all, the Division indicates that this simply follows from the standard set, which requires further interpretation.
In this case, Aldi has shown for all of its seven establishments that the payback period is longer than 5 years, leading the Division to rule that city departments cannot require Aldi to cover its (vertical) refrigeration units.
Conclusion
It can thus be deduced from this ruling that if you are faced with an obligation to take an energy-saving measure, it is always advisable to check whether that measure will be profitable for you (within 5 years).
