Publication of a new decree aimed at improving energy performance in existing buildings used for tertiary sector activities

Since 2010, French law has required that actions be undertaken to improve the energy efficiency of buildings dedicated to tertiary sector activities in order to optimize their energy performance.

Following the publication of an initial decree in May 2017 (in application of the Law dated 13 December 2000 and the Law dated 17 August 2015) and subsequently annulled in June 2018 by the French High Court (Conseil d’Etat), the French government finally issued a new decree on 23 July 2019. This long-awaited decree (which was issued pursuant to Law dated 23 November 2018 known as the “ELAN Act”) will come into force on 1st October 2019.

The purpose of this decree is to determine the conditions for the application of the law, which requires the implementation of actions to reduce the final energy consumption in buildings dedicated to use by the tertiary sector (bâtiments à usage tertiaire) constructed prior to 24 November 2018 by at least 40% by 2030, 50% by 2040 and 60% by 2050, compared with a reference energy consumption which cannot predate 2010 (whereas the May 2017 decree provided for a 25% reduction in consumption by 2020 and 40% by 2030).

The buildings concerned by this obligation are any existing buildings or parts of existing buildings where tertiary sector activities (i.e. health, education, services, retail activities, etc.) are undertaken on a floor area of 1,000 square meters (sqm) or more (instead of 2.000 sqm buildings in the May 2017 decree), with the exception of certain buildings set out in an exhaustive list in the decree (buildings used for religious, national defense, public safety or security purposes or those with a temporary building permit). 

In order to comply with the obligation to take action to reduce final energy consumption in the above-mentioned buildings, the decree specifies in particular: 

  • the conditions for determining the objectives for reducing final energy consumption;
  • the type of actions that can be undertaken to achieve these objectives (installation of high-performance equipment in particular), and
  • the possibility of modulating these objectives under certain conditions (in particular, in the event that the costs of the necessary actions are clearly disproportionate to the expected benefits).

The calculation methods for determining the baseline energy performance of a building and its level of final energy consumption will be specified in a future ministerial order, as well as the specific conditions for modulating final energy consumption reduction objectives.

In addition, the decree provides that a dedicated website will be set up so that from 2021 onwards owners and/or tenants can communicate their data/information regarding progress towards the achievement of these objectives annually, allowing the platform manager (gestionnaire) to verify that the objectives have been achieved.

The data/information provided on said dedicated website will then be reviewed by the manager one year after each stage of the program (i.e. in 2031, 2041 and 2051).

If the objectives are not met by the owners and/or tenants or if they do not communicate the required information each year on the dedicated website, the prefects (préfets) will be entitled to send them a formal notice to comply with their obligations, or even require them to draw up an action program to enable them to meet the objectives aimed at reducing the final energy consumption of the building(s) concerned. An administrative penalty system (fines) is also set up to sanction non-compliance with certain provisions of the Decree.

The system thus put in place is very ambitious in nature.

Particular attention should be paid to the content of the forthcoming ministerial order supplementing the above-mentioned provisions. The provisions of this ministerial order - the date of issue of which is not known at this time - are indeed necessary to enable the operational implementation of the mechanism provided for by the decree.


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