Directive 2012/27/EU on energy efficiency, as last amended by Directive (EU) 2018/2002 of December 11, 2018 (Energy Efficiency Directive, EED), serves to implement the EU Commission’s “Framework Strategy for a Crisis-Resilient Energy Union with a Forward-Looking Climate Change Strategy” of 2015.

DIRECTIVE OBJECTIVES:
The aim of the directive is to increase energy efficiency throughout the entire energy chain, including energy generation, transmission, distribution and final consumption. This contributes to environmental protection, improves air quality and public health, reduces greenhouse gas emissions, increases energy security due to reduced dependence on energy imports from third countries, reduces energy costs for households and businesses, reduces energy poverty, and increases overall competitiveness, employment, and economic activity, thereby improving the quality of life for citizens. This is in line with the Union’s commitments under the Energy Union and the global climate change agenda launched by the 2015 Paris Agreement on Climate Change, concluded on the occasion of the Conference of the Parties to the United Nations Framework Convention on Climate Change (4 ) (hereinafter the Paris Agreement), according to which the average temperature increase on Earth should be kept well below 2 °C above pre-industrial levels and, if possible, limited to 1,5 °C.

MEASURES OF THE DIRECTIVE

• Setting national energy efficiency targets for 2030
• Establishment of national strategies for the renovation of the building stock
• Targets for the energy savings obligations of the member states
• Exploitation of savings potentials through consumption measurement and consumption-based cost sharing
• Obligation of regular energy audits etc.

NEW RULES FOR SUBMETERING:
The amendments to the EED dated Dec. 11, 2018, include regulations for individual consumption metering (submetering) in the directive for the first time. In the newly inserted Articles 9b and 9c, the directive now contains specifications for the design of billing rules in the member states and for the obligation to install remotely readable meters and heat cost allocators.

Articles 10a and 11a and Annex VII set out requirements for regular intra-year billing and consumption information and for the content of invoices.

REMOTE READABILITY OF METERS:
According to Art. 9c EED, installed meters and heat cost allocators must in principle be remotely readable after 25.10.2020.
Meters and heat cost allocators that are not remotely readable and have already been installed must be retrofitted or replaced with remotely readable devices by 01.01.2027.

REGULAR BILLING AND CONSUMPTION INFORMATION
According to Art. 10a EED in conjunction with Annex VIIA, Member States shall ensure that – if remotely readable meters or heat cost allocators are installed – billing and consumption information based on actual consumption or heat cost allocator readings is provided at least twice a year. Insofar as the transmission is made electronically or this is requested by the end customer, the billing and consumption information must even be provided at least quarterly.

In a 2nd stage, billing and consumption information from remotely readable meters and heat cost allocators must be made available at least monthly from 01.01.2022.

Which concrete values have to be transmitted as consumption information will be the counterpart of the implementation in the HeizKV.

MINIMUM INFORMATION IN INVOICES:
In addition to the information on actual prices and actual energy consumption or total heating costs and reading values of heat cost allocators, the following minimum information must also be provided in the invoices in accordance with the requirement in Annex VIIA EED:

• Information on the fuel mix used and the associated annual amounts of greenhouse gas emissions.
• Explanation of the taxes, duties and customs tariffs levied
• Comparison of the end user’s current energy consumption with the energy consumption in the same period of the previous year, preferably in graphical form, with climate-related correction
• Comparisons with the normalized average end user or the average end user determined by comparative tests for the same user category.
• Contact information for consumer organizations, energy agencies, or similar entities from which information can be obtained on energy efficiency improvement measures offered, end-user comparison profiles, and objective technical specifications for energy-using equipment
• Information about complaint procedures, ombudsman services, or alternative dispute resolution procedures.

BILLING RULES:
According to Art. 9b EED, the member states have to ensure that the distribution of the costs of heating, cooling and domestic hot water consumption is carried out according to transparent, publicly accessible national rules.

These rules should also include guidelines for allocating the costs of energy consumption of domestic hot water, heating of common areas and distribution facilities.

Whether the reference to rules of technology (as now in the HeizkV) fulfills the requirements of transparency and public access is doubtful.

COST ALLOCATION TO THE END USER
According to Art. 11a EED, end-users shall receive all their energy consumption bills and related billing information free of charge. However, costs for preparing the statements and transferring the data can then be passed on to the end user if the task has been transferred to a third party – such as a service provider or the local energy supplier. To ensure the reasonableness of service providers’ costs here, member states can stimulate competition in this service area by taking appropriate measures. As such measures, the directive mentions the implementation of tenders or the use of interoperable devices and systems that facilitate provider switching. In this context, the legislator finds suggestions for measures to improve competition in the Bundeskartellamt’s sector inquiry into submetering of May 2017.

TRANSPOSITION OF THE DIRECTIVE INTO NATIONAL LAW:
The rules of the Directive do not apply directly to the citizens of the Member States. They must first be transposed into the national law of the member states. For this purpose, the member states have been given an implementation deadline of June 25, 2020, or October 25, 2020, for the rules on submetering.

The basis for implementation in Germany is the adoption of the Building Energy Act (draft dated May 28, 2019), which is to replace the previous regulations in the Energy Conservation Act. Based on the Building Energy Act, the federal government can then amend the Heating Cost Ordinance . This means that the Building Energy Act would now have to be passed in the short term and the Heating Costs Ordinance would subsequently have to be revised by the end of the implementation period on October 25, 2020.

RA Martin Alter
RA Sebastian Tempel
RA René Illgen
RAin Noreen Walther
Attorney Eva-Maria Meichsner
RAin Michelle Friday
RA Dietmar Strunz

Zschopauer Street 216
09126 Chemnitz
Phone 0371/5353800
Fax 0371/5353888

kanzlei@strunz-alter.de
www.strunz-alter.de