Tertiary Decree Deadlines: They're approaching!

The first deadlines for the Tertiary Decree are approaching. Declarations, controls, and penalties: here's what you need to know to ensure compliance.

Monique Argaud
Consultante HSE
Publication : 
27.05.2021
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Please note: This article concerns French legislation. The requirements described may not apply in other countries.

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If your company is affected by the deadlines for the Tertiary Decree, be aware that some are fast approaching.

Therefore, no later than September 30, 2021, you must enter on the OPERAT platform :

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

– Your energy consumption for 2020, by energy type and expressed in the unit used for its purchase. This declaration remains mandatory 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 entered values into final energy expressed in kWh LHV (Lower Heating Value) according to the conversion factor table presented in the annex of the decree of November 24, 2020, known as the "absolute values I" decree, published in January 2021.

Various regulatory sources and tools must be considered for these declarations: the "absolute values I" decree, FAQ, and accompanying guide provided by the OPERAT platform.

The legal tools to implement to meet the deadlines of the Tertiary Decree

Thus, the "absolute values I" decree defines, for the first decade (2030 horizon), taking into account, in particular, the best available techniques, the final energy consumption levels expressed in absolute value (Cabs) for the activity categories of Offices, Pre-primary & Primary, Secondary, and Higher Education, and Logistics (warehousing and storage).

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

  • Standard offices (partitioned – assigned),
  • Open-plan offices (non-partitioned – assigned),
  • Flex offices (non-partitioned – unassigned).

Logistics activities are also segmented into three sub-categories:

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

For these logistics activities, all consumption is based on the value USE*, which can be adjusted based on the height of the storage area, the number of door openings, the floor area, the setpoint temperature, and the number of operating hours.

However, if your company operates other activities, such as a retail business, a hotel, or sports facilities, you must await the publication of the "absolute values II" decree, as it has not yet been submitted for public consultation by the Ministry of Ecological Transition.

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

The OPERAT FAQ provides clarification on covered buildings through FAQs A4, A7, and A11, and reminds of the deadlines for the tertiary decree (FAQ-PO2):

  • In the case of an industrial site, buildings, parts of buildings, or groups of buildings used for tertiary activities are subject to this obligation provided that their cumulative floor area is greater than or equal to 1,000 m2. This notably includes offices, restaurants, association premises, logistics facilities, sports facilities, etc. Specifically excluded from the floor areas used to assess eligibility are the floor areas of technical rooms necessary for the operation of a group of buildings or a building other than a detached house, including waste storage rooms (See Article R111-22, 6° of the Urban Planning Code). While these areas are not considered when assessing eligibility for the tertiary decree's provisions, once the building or group of buildings is subject to the decree, the areas of technical rooms (boiler room, air handling unit, machinery, waste storage) are taken into account for energy consumption calculations.
  • Regarding R&D laboratories, if they are located on an industrial site, they fall under industrial research and development and are therefore not covered by the scheme. Consequently, if they are integrated into a building primarily used for tertiary activities, it will be necessary to isolate the energy consumption of energy-intensive processes through sub-metering to deduct them from the other energy consumptions of the tertiary building.

A guidance document is announced on OPERAT ; it would clarify all the provisions (concerned buildings, tertiary decree deadlines, objective modulation, financial aid, 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 reconstructing reference energy consumption for functional entities that include other activities not falling under the regulated tertiary sector and that do not have differentiated energy consumption data for the reference year between regulated tertiary activity premises and other non-regulated activity premises:

  • Conducting a measurement campaign over a sufficiently representative period: this notably includes measurements during heating and cooling periods. To do this, your company must organize itself to be able to carry out measurements by the end of 2021,
  • Implementing sustainable sub-metering,
  • Simulation with substantiated data (e.g., thermal simulation).

Please note, future deadlines must then be prepared for:

  • September 30, 2026: deadline for submitting a technical file required as part of a request for objective modulation,
  • December 31, 2031: first check in OPERAT to determine if the first decade's objective has been met.

Penalties for non-compliance with the Tertiary Decree deadlines

Finally, as a reminder, the penalties for this scheme are governed by Article R.131-44 of the Construction and Housing Code and consist of administrative fines and "Name & Shame":

  • In case of unjustified failure to transmit information on OPERAT, after formal notice from the prefect to comply with these obligations within three months, "Name & Shame" will be implemented (publication on a state services website of the document detailing the formal notices),
  • In case of unjustified non-compliance with the energy consumption reduction objective, after formal notice from the prefect to establish an action plan within six months, "Name & Shame" will be implemented along with an administrative fine of up to 7,500 euros for legal entities,
  • In case of non-compliance with the action plan and the prefect's establishment of a default finding, the default order is published on a state services website; the prefect may also impose an administrative fine of up to 7,500 euros for legal entities.

It is essential to have a good grasp of the Tertiary Decree deadlines and the regulatory tools to use in order not to expose one's company to administrative fines and "Name & Shame." This is conditional on the implementation of a regulatory monitoring effective.

A draft decree, under public consultation until July 8, 2021, refers the annual data transmission procedures on OPERAT to an order. This order, also in draft and under consultation, allows for adaptation to the health crisis since data for the year 2020 would be transmitted no later than September 30, 2022, or with a possible one-year deferral.

Furthermore, an amendment adopted by the National Assembly to the draft Law on Fighting Climate Change and Strengthening Resilience to its Effects, extends the scope of the Tertiary Decree to buildings constructed since the ELAN Law (Law No. 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