Since the 1990s, companies have been subject to an energy-saving obligation by law. Currently, this is regulated in Section 2.15 of the Activities Decree on Environmental Management. With climate change in mind, this energy savings obligation has become increasingly stringent over the years. The next tightening of the energy savings obligation is expected in 2023, in part to implement the Climate Agreement and EU obligations. The main change is that the number of functions to which the energy savings obligation will apply will be significantly expanded. Mink Oude Breuil takes you through these changes in this article.
Read more: This energy savings obligation is separate from the energy label C obligation for offices, about which Jeroen Brinkman wrote this article earlier.
The energy savings obligation: what about it?
Thresholds
Currently, companies (at least: (the operators of) establishments) with energy consumption above a certain threshold value[1] must implement all energy-saving measures with a payback period of five years or less.[2] Companies above this threshold are required to report once every four years what energy-saving measures they have implemented.[3] Companies established after Jan. 1, 2019, must do so within one year of establishment.[4]
EMLs
To make it easier for companies to demonstrate that all obligatory energy saving measures have been taken, there are "Recognized Energy Saving Measures Lists" (hereafter EMLs),[5] which are widely used in practice. When all measures from this list have been implemented, the energy saving obligation is fulfilled.[6] EMLs are not available for every sector, so it is also possible to take other measures. In that case, however, the equivalence of those measures will have to be demonstrated.
Enforcement
If a measure mentioned in the EMLs cannot be recovered within five years, there is no obligation to implement that measure. The assessment of the payback period is made per establishment, and not at branch level.[7] If an establishment does not comply with the energy savings obligation, the competent authority (usually the Municipal Executive) can take enforcement action. For example, by imposing a penalty payment.
What will change when?
The tightening of the energy savings obligation is largely regulated in the Environment Act and underlying regulations, and thus also coincides with the (intended) entry into force of that Act on January 1, 2024. These include:
What are the main changes?
The changes are not yet fixed in detail, but the four Internet consultations already provide a glimpse. The most important changes are listed here:
- the energy consumption threshold determines whether the energy savings and reporting obligation applies. It can therefore apply to all uses of buildings (except dwellings) and environmentally harmful activities, not just establishments;[8]
- the energy savings obligation is replaced by an obligation to make energy use more sustainable. This concept is broader than energy conservation and includes, for example, the generation of renewable energy or the use of energy carriers with lower CO2 emissions;
- many companies that were previously exempt from the energy savings requirement will lose that exemption;
- the energy savings obligation will be regulated through general rules and no longer through individual permits for large establishments;
- the EMLs are updated with many new (sustainability) measures; and
- one-time connection costs, unlike before, may be included in the payback methodology.
What are the practical implications of these changes now?
Increasing administrative burden
The main consequence is that the sustainability obligation will apply to all non-residential buildings that consume more than 50,000 kWh of electricity and 25,000 m³ of natural gas equivalents. For companies and user functions that consume more energy, this means an increased administrative burden. They must demonstrate whether or not the energy savings obligation is met.
Taking action
In addition, many companies will have to take measures (for the first time or more) to meet the sustainability obligation. Because of higher energy prices, measures will pay for themselves sooner. The energy prices to be used for calculating payback periods have yet to be determined. In compiling the EMLs, the September 2021 price level was assumed, but it has already been announced that the current (higher) price level will be used.
Tips for practice
- Based on your energy consumption, determine whether the sustainability requirement applies to your business;
- Keep records of measures already taken;
- Look up in the EMLs what measures you might take and also reserve money and/or personnel in time to take those measures;
- Work on the sustainability obligation and avoid legal proceedings. The government has increased funding for enforcement agencies (such as environmental agencies)[9]; and
- Keep quotations if measures are nevertheless too expensive to pay back within five years. These quotes may be needed to show that you have done sufficient research.
Do you have any further questions about the sustainability obligation? Please feel free to contact me using the form below or my colleague Juuk Hulshof.
[1] This refers to energy consumption in excess of 50,000 kWh of electricity or 25,000 m3 of natural gas or its equivalent pursuant to Section 2.15, seventh paragraph, Activities Decree. It should be noted that certain establishments, such as greenhouse construction companies, are exempted in Section 2.15, subsections seven to nine, Activities Decree.
[2] Pursuant to Section 2.15(1), Activities Decree.
[3] Pursuant to Section 2.15(2) of the Activities Decree.
[4] Pursuant to Section 2.15(10) of the Activities Decree.
[5] These EMLs are included as Appendix 10 belonging to the Environmental Management Activities Regulations.
[6] Section 2.16 of the Environmental Management Activities Regulations.
[7] ABRvS May 23, 2018, ECLI:NL:RVS:2018:1688
[8] Considering Articles 3.83 and 3.84 Bbl. The threshold value remains the same.
[9] https://zoek.officielebekendmakingen.nl/stcrt-2022-17828.html
