Tertiary decree deadlines approaching!

If your company is affected by the tertiary sector decree deadlines, you should be aware that some of them are fast approaching.

Therefore, by September 30, 2021 at the latest, you must enter the following information on the OPERAT platform:

- Your building data (type of building, address, surface area, etc.),

- Your energy consumption in 2020, by type of energy and expressed in the unit in which it was purchased. This declaration remains compulsory even if the year 2020 is not subject to an "Eco Energie Tertiaire" rating due to the health context.

The OPERAT platform then automatically converts the values entered into final energy expressed in kWh LCV (Lower Calorific Value) according to the table of conversion factors presented in the appendix to the decree of November 24, 2020 known as the "absolute values I" decree published in January 2021.

Various regulatory sources and tools need to be taken into account when making these declarations: the "Absolute values I" decree, the FAQ and support guide offered by the OPERAT platform.

The legal tools needed to meet the tertiary sector decree deadlines

The "absolute values I" decree defines, for the 1st decade (horizon 2030), taking into account the best available techniques, the levels of final energy consumption expressed in absolute values (Cabs) for the categories of activity Offices, Pre-primary & primary, secondary and higher education and Logistics (warehousing and storage).

Office activities are segmented into three sub-categories, based on the differentiated layout of these premises:

• Standard offices (partitioned - allocated),
• Open space (not partitioned - allocated),
• Flex office (not partitioned - not allocated).

Logistics activities are also segmented into three sub-categories:

• Negative cold logistics - Base at - 18°C
• Storage from + 1 to + 8°C (fresh products) - Reference at + 3°C
• Storage from + 12 to + 17°C (fresh products) - Reference at + 15°C

For these logistics activities, all consumption is based on the USE* value , which can be modulated according to the height of the storage area, the number of door openings, the floor area, the set temperature and the number of working hours.

However, if your company operates other activities, such as a shop, hotel or sports facilities, you'll have to wait for the publication of the "absolute values II" decree, which has not yet been submitted for public consultation by the French Ministry of Ecological Transition.

*"USE": component of energy consumption relating to specific energy uses specific to the activity, as well as other building uses such as the production of domestic hot water and lighting. It is defined for a standard intensity of use and for each activity category.

The OPERAT FAQ sheds light on the buildings subject to the decree, through FAQs-A4, A7 and A11, and reminds us of the deadlines for the tertiary sector decree (FAQ-PO2):

• In the case of an industrial site, buildings, parts of buildings or groups of buildings used for tertiary purposes are covered by this obligation if their combined floor area is greater than or equal to 1,000^m2. These include office, catering, association, logistics and sports premises, etc. Not included in the floor areas used to assess liability are the floor areas of technical premises required for the operation of a group of buildings or a building other than a single-family home, including waste storage areas (Cf. 6° of article R111-22 of the Code de l'Urbanisme). If these surfaces are not taken into account when assessing whether the building or group of buildings is subject to the provisions of the tertiary sector decree, the surfaces of technical premises (boiler rooms, air handling units, machinery, waste storage) are taken into account when calculating energy consumption.

• If R&D laboratories are located on an industrial site, they come under the heading of industrial research and development, and are therefore not covered by the scheme. Therefore, if they are integrated into a building used mainly for tertiary purposes, the energy consumption of energy-intensive processes should be isolated by sub-metering, and deducted from the tertiary building's other energy consumption.

An accompanying guide has been announced for OPERAT; it will explain all the provisions (buildings concerned, deadlines for the tertiary sector decree, modulation of targets, financial assistance, etc.).

The declaration of reference energy consumption is possible until September 30, 2022, based on a full year of operation between 2010 and 2020 comprising 12 consecutive months. The "absolute values I" decree lists three methods for reconstituting reference energy consumption for functional entities that include other activities not falling within the scope of the tertiary sector subject to reporting and that do not have energy consumption data for the reference year differentiated between tertiary activity premises subject to reporting and other activity premises not subject to reporting:

• Carry out a measurement campaign over a sufficiently representative period of time: this implies, in particular, measurements during heating and cooling periods. To achieve this, your company needs to organize itself in such a way as to be able to carry out measurements by the end of 2021,
• Installation of permanent sub-metering,
• Simulation with justified data (e.g. thermal simulation).

And don't forget to prepare for future deadlines:

• September 30, 2026: deadline for producing the technical file required for a target modulation request,
• December 31, 2031: First check in OPERAT to determine whether the target for the first decade has been reached.

Penalties for non-compliance with tertiary decree deadlines

Finally, as a reminder, the penalties for this system are set out in article R.131-44 of the French Construction and Housing Code, and include administrative fines and a "Name & Shame":

• In the event of unjustified failure to transmit information to OPERAT, following formal notice from the Prefect to comply with these obligations within three months, implementation of the "Name & Shame" procedure (publication on a government services website of the document detailing the formal notices),
• In the event of unjustified non-compliance with the energy consumption reduction target, after formal notice from the Prefect to draw up an action program within six months, implementation of the "Name & Shame" procedure and an administrative fine of up to 7,500 euros for legal entities,
• In the event of non-compliance with the action program and the establishment of a "constat de carence" by the prefect, the "arrêté de carence" is published on a government services website; the prefect may also impose an administrative fine of up to 7,500 euros for legal entities.

To avoid exposing your company to administrative fines and "Name & Shame", it is essential to have a good grasp of the deadlines of the tertiary sector decree and the regulatory tools to be used. This is only possible if an effective regulatory watch is in place.

A draft decree, under public consultation until July 8, 2021, refers the modalities of annual data transmission on OPERAT to a decree. This decree, also in draft form and under consultation, will enable us to adapt to the health crisis, since data for 2020 will be transmitted by September 30, 2022 at the latest, i.e. with a possible postponement of one year.

In addition, an amendment adopted by the National Assembly to the bill to combat climate disruption and strengthen resilience to its effects, extends the scope of the tertiary decree to buildings constructed since the ELAN law (law n°2018-1021 of November 23, 2018). This bill will be debated in the Senate on June 29, 2021.

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Photo credit: Declan Sun