Energy Audit Obligations in Germany

25.11.2015

Implementing the European Energy Efficiency Directive, the German national law stipulates that many enterprises in Germany must conduct an energy audit.

The first audit must be conducted by 5 December 2015 and repeated audits must be carried out every four years. However, as the energy audit obligation has not been implemented in German national law before April 2015, the German Parliament asked the Federal Government to handle cases where an enterprise was not able to conduct an energy audit by 5 December 2015 with leniency.

We summarise the energy audit obligations below. Please contact Jan Dinter, if you need further advice with regard to your enterprise.

Scope of the energy audit obligation

Enterprises, which do not fall within the definition of micro, small and medium-sized enterprises (SME) as set out in the Recommendation 2003/361/EC of the EU Commission dated 6 May 2003, are obliged to conduct an energy audit pursuant to sec. 8 para 1 of the German Energy Services Act (Energiedienstleistungsgesetz – EDL-G).

A SME (which is not subject to the energy audit obligation) has less than 250 (full time) employees and an annual turnover not exceeding EUR 50 million or an annual balance sheet total not exceeding EUR 43 million. All enterprises which exceed these thresholds are in general obliged to conduct an energy audit.

If an enterprise is member of a group, the group structure is taken into account when determining whether the relevant enterprise is a SME. The head count and financial data of so called linked enterprises and partner enterprises are considered when determining the SME status of an enterprise:

  • Enterprises are deemed to be linked enterprises, if:

(a) an enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;

(b) an enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;

(c) an enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association; or

(d) an enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders’ or members’ voting rights in that enterprise.

In this case, the head count and financial numbers of all linked enterprises have to be taken into account when determining the SME status of one of the concerned enterprises. Indirect participations are also taken into account.

  • If an enterprise holds at least 25% of the capital or voting rights of another enterprise (and is not a linked enterprise), both enterprises are deemed to be partner enterprises. Some exemptions from this rule apply, e.g. for venture capital funds.

In case of a partner enterprise, the head count and financial numbers of a partner enterprise are taken into consideration pro rata to the capital or voting rights participation. Only direct participations (upstream or downstream) are taken into account. However, if a partner enterprises is linked with other enterprises, the head count and financial data of all linked enterprises are added to the data of the partner enterprise.

Foreign partner or linked enterprises will also be taken into account when determining the SME status of a German enterprise, as the wording of the provision does not contain any restrictions and the official working paper of the competent authority (Federal Office for Economic Affairs and Export Control – BAFA) expressly states this.

As a result, all German entities are addressees of the energy audit obligation, if

  • they exceed the thresholds for a SME on their own;
  • they are connected with another entity by a capital or voting rights participation of at least 25% and the thresholds for an SME are exceeded jointly by taking into consideration both the relevant enterprise and the partner enterprise (pro rata to the capital or voting rights participation); or
  • they have or are subject to a controlling influence of another enterprise and all linked enterprises jointly exceed the thresholds for an SME.

Exemptions from the energy audit obligation

The addressees of the energy audit obligation outlined above are, however, exempt from this obligation, if an energy management system (pursuant to DIN EN ISO 50001) or an environmental management system (pursuant to the Directive 1221/2009/EC) is in place. If an energy management system or an environmental management system will be introduced in the near future, the enterprise may be exempt from the energy audit obligation as well: An energy audit does not have to be provided in case of an inspection between 5 December 2015 and 31 December 2016, if the enterprise declares that an energy or an environmental management system will be introduced and certain first steps have been completed by 5 December 2015.

Furthermore, an addressee of the energy audit obligation is not obliged to conduct an energy audit, if it does not consume any energy at all (for example in case of shelf companies).

Options for a streamlined audit procedure

If an enterprise is subject to the energy audit, it may opt for a streamlined audit procedure in certain cases. For example, if facilities of partner or linked enterprises are similar, one comprehensive energy audit may be conducted for all of these facilities (“multi site procedure”).

Timeline for conducting the energy audit

The first energy audit must be conducted until 5 December 2015. Subsequently, repeated energy audits must be conducted at least every four years.

However, as the energy audit obligations have not been implemented in the German legislation before April 2015, the time frame for conducting energy audits is rather short. For this reason, the German Parliament asked the Federal Government to act with leniency if an enterprise could not meet the deadline, e.g. due to a shortage of capacity at the auditors.

Further information

Please contact us if you need further advice or an assessment, if your enterprise falls within the scope of the energy audit obligations and which options for a streamlined audit procedure may be available for your enterprise.

 

Any questions?  Please contact: Dr. Jan Dinter
Practice Group: Energy