By 5 December 2015 every large company in Germany, irrespective of the sector, is required to have performed an energy audit in order to identify energy saving potentials. Although the deadline of this EU based duty has passed (similar regulations with similar deadlines will apply in other EU member states), it is encouraged that large companies conduct the energy audit as soon as possible. Details of the requirement and the risk of non-compliance pursuant to German law are advised within this article.

Such an audit subsequently has to be performed every four years. Exceptions apply only to so-called small and medium-sized enterprises (“SME”). In practice these are often difficult to identify. Specific care needs to be taken regarding affiliates of groups of companies.

  1.  Background

The EU and its member states have set themselves the goal of saving 20% of the energy between 2010 and 2020 in order to subsequently achieve further savings targets. In this context, the EU has adopted the Directive 2012/27/EU on energy efficiency at the end of 2012. This Directive has been implemented by the German legislator and led to amendments to the German energy services and other energy efficiency measures act (Gesetz über Energiedienstleistungen und andere Energieeffizienzmaßnahmen, "EDL-G"). The amendments include, inter alia, the obligation on the part of companies to perform an energy audit.

  1.  Affected companies

In general, all companies are affected by the new regulation irrespective of their respective branch of industry or field of activity, for example:

  • Diversified industrials and manufacturers
  • Technology, media and telecoms (TMT) and IT service providers
  • Financial services (banks/insurance companies)
  • Wholesalers and retailers
  • The Energy sector
  • The Public sector, unless active on public authority

Thus, the obligation does not only rest on companies which typically have a high energy consumption.

Exceptions only exist for SME within the meaning of the Commission Recommendation 2003/361/EC. These are defined as 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.

In this context, however, it must be pointed out that "partner enterprises" and "linked enterprises" have to be taken into account when assessing the size of a company.

With certain exceptions, "partner enterprises" means a participation of between 25% and 50% in the other enterprise and "linked enterprises" refers to a majority stake or other abilities to exercise a dominant influence on the other enterprise. This assessment of the company size is not only limited to national affiliations, but also extends to connections with companies which may have their registered office abroad, even outside the EU. All this shall serve the purpose of an efficient implementation of the EU's climate objectives.

A clear specification of whether a company has to perform an energy audit may involve some difficulties in the individual case, e.g. if the headcount (of a group of companies) fluctuates over the course of a year. This is a complex matter, which needs to be reviewed carefully.

  1.  Exemption from the performance of an energy audit

Companies which either have an energy management system pursuant to the DIN EN ISO 500001 standard or which have an eco-management system within the meaning of the Regulation (EC) 1221/2009 of the European Parliament and of the Council on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) are not obliged to perform an energy audit.

  1.  Scope of the obligations

Consequently, every company, which neither is an SME nor does have an energy or eco-management system, is required to have completed an energy audit for the first time by 5 December 2015 and to repeat such audit every four years. This constitutes "a systematic procedure to obtain adequate knowledge of the existing energy consumption profile of a building or group of buildings, of an industrial operation and/or installation or of a private or public service, to identify and quantify cost-effective energy savings opportunities, and report the findings“ (Sec. 2 no. 4 EDL-G).

In order to ensure compliance with this standard, the audit, the scope of which is defined by DIN EN 16247-1, generally has to be performed by external, independent and adequately qualified persons. However, it is also possible to assign these tasks to own staff, as long as the respective person is adequately qualified and independent to a certain degree. This requires, for example, that the respective person does not perform activities which have to be audited. Moreover, this person must report directly to the management and must not be bound by instructions in this function. The person must not suffer any disadvantages due to these tasks.

  1. Sanctions of non-compliance

The performance of energy audits and/or the existence of exceptions is reviewed on a random basis by the Federal Office for Economic Affairs and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle, BAFA) as the competent authority.

Violations of the obligation to properly perform energy audits may constitute an administrative offence, which, depending on the nature and extent, can be punished with a fine of up to EUR 50,000.00.

  1. Practical Impact

Due to their far-reaching area of application, the obligations which are effective as of 5 December 2015 have an impact on many companies in all industries. It is advisable for companies which could qualify as an SME, e.g. who are affiliated to larger groups of companies, to check yet another time whether they are possibly affected by the obligation to perform an energy audit. In case that there is a duty to perform an energy audit, it is advisable to make up leeway due to potential monetary fines. In case of an energy management system the transposition deadline will lapse on 31 December 2016, i.e. it is sufficient to prove that the company already began with the introduction of the named system.