INTRODUCTION. THE OBLIGATION TO CARRY OUT ENERGY AUDITS 

On February 13, 2016, Royal Decree 56/2016, of February 12, was published in the Official Gazette of the Spanish State (“BOE”), partially transposing Directive 2012/27/EU of the European Parliament and of the Council of October 25, 2012, on energy efficiency, as regards energy audits, the accreditation of service suppliers and energy auditors, and the promotion of efficiency in the supply of energy (“RD 56/2016” - Link: RD 56/2016). 

The new regulation, in line with the actions for encouraging and promoting energy efficiency within the European Union established under the Directive, sets forth the obligation for large-scale enterprises and groups of companies to carry out energy audits, in the terms provided in RD 56/2016, as a measure for organizations to know their situation as regards energy use, and to contribute to the saving and efficiency of the energy consumed. 

Under the Seventh Final Provision, RD 56/2016 came into force on February 14, 2006.

SCOPE OF APPLICATION OF THE OBLIGATION TO CARRY OUT ENERGY AUDITS 

The obligation established in RD 56/2016 to carry out energy audits is applicable to: 

  • Large-scale enterprises, meaning those with over 250 employees, and those that, while not meeting this requirement, have a turnover exceeding €50 million and a general balance sheet exceeding €43 million.
  • The obligation also applies to groups of companies (defined in accordance with the provisions of art. 42 of the Commercial Code) that, taking into account the aggregate figures of all the companies comprising the consolidated group, meet the requirements of large-scale enterprises. 

Micro and small- and medium-sized enterprises (SMEs) are exempt from this obligation. 

SCOPE OF THE OBLIGATION

The energy audits to be carried out by large-scale enterprises and groups of companies included within the scope of RD 56/2016 must cover at least 85% of the total energy consumption of all their facilities located in Spain that are involved in the industrial, commercial and service activities that these enterprises and groups carry out to conduct their business. They must perform these audits at least every four years from the date of the previous energy audit.

The energy audit may be replaced by implementing an energy or environmental management system certified by an independent body, pursuant to the applicable European or international regulations, provided it includes an energy audit carried out under the minimum guidelines specified in RD 56/2016. Enterprises or groups of companies holding a valid energy efficiency certificate —obtained in accordance with RD 235/2013, of April 5, approving the basic procedure for certifying the energy efficiency of buildings— can include it in the energy audit in relation to the building it covers, provided it contains recommendations on improving the optimum or profitable levels of energy efficiency under the guidelines of RD 56/2016. 

Energy audits must be performed by qualified energy auditors. An enterprise’s energy audit may be carried out by its own qualified technicians, provided they are not directly related to the audited activities and they belong to an internal control department of the enterprise.

Noncompliance with this obligation will be penalized according to the provisions of articles 80 and 82 of Act 18/2014, of October 15, approving urgent measures for growth, competitiveness and efficiency, under which the failure to perform an energy audit within the period provided by law or regulations will be considered a very serious infringement. Under RD 56/2016, the obligation to fulfill this requirement will be subject to inspection by the competent authorities in matters of energy efficiency of the autonomous region or the cities of Ceuta and Melilla, which will carry out yearly inspections on a random selection of at least a statistically significant percentage of the energy audits performed in each period. 

An Administrative Energy Audit Register will be created in the Ministry of Industry, Energy and Tourism, public and free of charge, to record the information notified by largescale enterprises under the scope of RD 56/2016 and any information other companies provide voluntarily on the audits carried out. 

DEADLINES FOR COMPLYING WITH THE OBLIGATION

Enterprises included within the scope of RD 56/2016 have nine months from its coming into force to perform the energy audits. 

Audits performed after December 5, 2012, the date when the Community Directive came into force, will be considered valid, provided they meet the requirements established by RD 56/2016.

OTHER AMENDMENTS INTRODUCED BY RD 56/2016 

RD 56/2016 establishes other new aspects summarized below:

  • It establishes the requirements for carrying out the professional activity of energy service suppliers and energy auditors, and the requirements for accrediting qualifications. 
  • It regulates the assessment of the potential for high-efficiency cogeneration and of urban heating and cooling systems. 
  • It amends RD 1955/2000, of December 1, regulating transportation, distribution, retailing and supply activities, and authorization procedures for electrical power stations, and establishes new authorization criteria for thermal power stations whose thermal power is greater than 20 MW to generate electricity or for their substantial renewal, including the obligation of the administrative authorization applicant to submit a cost-benefit analysis to adapt the planned facility to high-efficiency cogeneration. 
  • It amends RD 616/2007, of May 11, on the fostering cogeneration, in relation to the determining the efficiency of cogeneration.
  • It amends RD 1027/2007, of July 20, approving the Regulations on Thermal Installations in Buildings, in relation to the technical instructions established in its annex.