EN Official Journal of the European Union C 342/119

Opinion of the European Committee of the Regions — Energy efficiency and buildings

(2017/C 342/14)

Rapporteur: Michiel Rijsberman (NL/ALDE) Member of the Executive Council of the Province of Flevoland Reference documents: Proposal for a Directive of the European Parliament and of the Council amending Directive 2012/27/EU on energy efficiency COM(2016) 761 final Proposal for a Directive of the European Parliament and of the Council amending Directive 2010/31/EU on the energy performance of buildings COM(2016) 765 final

I. RECOMMENDATIONS FOR AMENDMENTS

Amendment 1

EED Recital 4

Text proposed by the Commission CoR amendment (…) The need for the Union to achieve its energy efficiency targets at EU level, expressed in primary and final energy consumption, in 2020 and 2030 should be clearly set out in the form of a binding 30 % target. (…) The need for the Union to achieve its energy efficiency targets at EU level, expressed in primary and final energy consumption, in 2020 and 2030 should be clearly set out in the form of a binding 40 % target.

Reason

Aiming for 40 % will lead to stronger economic growth, more jobs and fewer imports of fossil fuels than the 30 % savings target would. This is in line with the stance adopted by the European Parliament to date. The amendment is linked to amendment 2 and policy recommendation 5.

Amendment 2

EED Recital 7

Text proposed by the Commission CoR amendment Member States are required to achieve a cumulative end-use savings requirement for the entire obligation period, equivalent to ‘new’ savings of 1,5 % of annual energy sales. This requirement could be met by new policy measures adopted during the new obligation period from 1 January 2021 to 31 December 2030 or by new individual actions as a result of policy measures adopted during or before the previous period, but in respect of which the individual actions that trigger energy savings are actually introduced during the new period. Member States are required to achieve a cumulative end-use savings requirement for the entire obligation period, equivalent to ‘new’ savings of 2 % of annual energy sales. This requirement could be met by new policy measures that are adopted during the new obligation period from 1 January 2021 to 31 December 2030 or by new individual actions as a result of policy measures adopted during or before the previous period, but in respect of which the individual actions that trigger energy savings are actually introduced during the new period.

Reason

This amendment follows on from amendment 3 and policy recommendations 5 and 7. In order to reach the desired level of 40 %, annual savings need to be at least 2 %.

Amendment 3

EED Article 1(1)

Text proposed by the Commission CoR amendment This Directive establishes a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s 2020 20 % headline targets and its 2030 30 % binding headline targets on energy efficiency are met (…). This Directive establishes a common framework of measures to promote energy efficiency within the Union in order to ensure that the Union’s 2020 20 % headline targets and its 2030 40 % binding headline targets on energy efficiency are met (…).

Reason

The reason for this amendment is linked to amendment 1 and policy recommendation 5.

Amendment 4

EED Article 7(1)

Text proposed by the Commission CoR amendment new savings each year from 1 January 2021 to 31 December 2030 of 1,5 % of annual energy sales to final customers by volume, averaged over the most recent three-year period prior to 1 January 2019; new savings each year from 1 January 2021 to 31 December 2030 of 2 % of annual energy sales to final customers by volume, averaged over the most recent three-year period prior to 1 January 2019; Member States shall continue to achieve new annual savings of 1,5 % for ten-year periods after 2030, unless reviews by the Commission by 2027 and every 10 years thereafter conclude that this is not necessary to achieve the Union’s long-term energy and climate targets for 2050. Member States shall continue to achieve new annual savings of 2 % for ten-year periods after 2030, unless reviews by the Commission by 2027 and every 10 years thereafter conclude that this is not necessary to achieve the Union’s long-term energy and climate targets for 2050.

Reason

The reason for this amendment follows on from amendment 3 and ties in with policy recommendations 5, 7 and 8.

Amendment 5

EED Article 7

Text proposed by the Commission CoR amendment Energy savings obligation Energy savings obligation 1. Member States shall achieve cumulative end-use energy savings at least equivalent to: 1. Member States shall achieve cumulative end-use energy savings at least equivalent to: (a) new savings each year from 1 January 2014 to 31 December 2020 of 1,5 % of annual energy sales to final customers by volume, averaged over the most recent three-year period prior to 1 January 2013; (a) new savings each year from 1 January 2014 to 31 December 2020 of 2,0 % of annual energy sales to final customers by volume, averaged over the most recent three-year period prior to 1 January 2013; (…) (…) For the purposes of point (b), and without prejudice to paragraphs 2 and 3, Member States may count only those energy savings that stem from new policy measures introduced after 31 December 2020 or policy measures introduced during the period from 1 January 2014 to 31 December 2020 provided it can be demonstrated that those measures result in individual actions that are undertaken after 31 December 2020 and deliver savings. For the purposes of point (b), and without prejudice to paragraphs 2 and 3, Member States may count only those energy savings that stem from new policy measures introduced after 31 December 2020 or policy measures introduced during the period from 1 January 2014 to 31 December 2020 provided it can be demonstrated that those measures result in individual actions that are undertaken after 31 December 2020 and deliver savings. The sales of energy, by volume, used in transport may be partially or fully excluded from these calculations . Member States shall decide how the calculated quantity of new savings is to be phased over each period referred to in points (a) and (b) as long as the required total cumulative savings have been achieved by the end of each period. Member States shall decide how the calculated quantity of new savings is to be phased over each period referred to in points (a) and (b) as long as the required total cumulative savings have been achieved by the end of each period. 2. Subject to paragraph 3, each Member State may: (a) carry out the calculation required by point (a) of paragraph 1 using values of 1 % in 2014 and 2015; 1,25 % in 2016 and 2017; and 1,5 % in 2018, 2019 and 2020; (b) exclude from the calculation all or part of the sales, by volume, of energy used in industrial activities listed in Annex I to Directive 2003/87/EC; (c) allow energy savings achieved in the energy transformation, distribution and transmission sectors, including efficient district heating and cooling infrastructure, as a result of implementing the requirements set out in Article 14(4), point (b) of Article 14(5) and Article 15(1) to (6) and (9), to be counted towards the amount of energy savings required under paragraph 1; (d) count energy savings resulting from individual actions newly implemented since 31 December 2008 that continue to have an impact in 2020 and beyond and which can be measured and verified, towards the amount of energy savings referred to in paragraph 1; and (e) exclude from the calculation of the energy savings requirement referred to in paragraph 1 the verifiable amount of energy generated on or in buildings for own use as a result of policy measures promoting new installation of renewable energy technologies.

Reason

The Energy Savings Obligations are due to deliver a substantial part of energy efficiency gains. It is therefore important to avoid too many exceptions, which also adds to the clarity of the legislation.

Amendment 6

EED Article 9a

Text proposed by the Commission CoR amendment 2. In multi-apartment and multi-purpose buildings with a central heating or cooling source or supplied from district heating and cooling systems, individual meters shall be installed to measure the consumption of heat or cooling or hot water for each building unit. 2. In multi-apartment and multi-purpose buildings with a central heating or cooling source or supplied from district heating and cooling systems, individual meters shall be installed to measure the consumption of heat or cooling or hot water for each building unit if technically feasible and cost-efficient, as well as proportionate in relation to the overall improvement of the energy performance of the building as defined in Directive 2010/31/EU . Where the use of individual meters is not technically feasible or where it is not cost-efficient to measure heating or cooling in each building unit, individual heat cost allocators shall be used to measure heat consumption at each radiator unless it is shown by the Member State in question that the installation of such heat cost allocators would not be cost efficient. In those cases, alternative cost-efficient methods of heat consumption measurement may be considered. The conditions of technical non- feasibility and non- cost effectiveness shall be clearly set out and published by each Member State. Where the use of individual meters is not technically feasible or where it is not cost-efficient or not proportionate to measure heating or cooling in each building unit, individual heat cost allocators shall be used to measure energy consumption at each radiator unless it is shown by the Member State in question that the installation of such heat cost allocators would not be cost efficient or proportionate . In those cases, alternative cost-efficient methods of heat consumption measurement may be considered. The conditions of technical feasibility cost effectiveness and proportionality shall be clearly set out and published by each Member State. In new buildings of the kind referred to in the first sub-paragraph or when such a building undergoes major renovation, as set out in Directive 2010/31/EU, individual meters shall always be provided. (…) (…) 4. For the purposes of this Article, as of 1 January 2020 meters and cost allocators installed shall be remotely readable devices. 4. For the purposes of this Article, as of 1 January 2020 meters and cost allocators newly installed shall be remotely readable devices. Meters and cost allocators that have already been installed but which are not remotely readable shall be provided with this capability or be replaced with remotely readable devices by 1 January 2027, except where the Member State in question shows that this is not cost-efficient.

Reason

Under Article 9a paragraph 2, the unconditional roll-out of individual metering for new buildings and buildings undergoing major renovations would have major negative impacts on social and energy efficiency policy in some Member States.

Some Member States like Finland and Sweden have a ‘gross rent’ regime by which the landlord is under legal obligation to cover all the tenant’s energy costs. The purpose of this rent regulation is to protect citizens from energy poverty. It is also very positive in terms of energy efficiency because as, under the ‘gross rent’ regime, the tenant has no incentive to save energy, energy efficiency renovation by the owner is the only way to reduce the tenant’s energy consumption. The Directive as currently drafted would oblige countries like Finland and Sweden to either:

— mandate installation of individual meters and keep the ‘gross rent’ regime, which means that the meters would be installed at great cost for no purpose,

— or mandate installation of individual meters and revert to a ‘net rent’ regime under which the tenant would pay for his energy consumption.

Ending gross rent would result in a significant reduction of social protection against energy poverty because gross rent ensures uninterrupted heating at optimal levels for those at risk of energy poverty.

Member States that do not have ‘gross rent’ regimes but that have a pressing need to renovate large amounts of the housing stock should be free to prioritise renovation over individual meter roll-out, especially if an unqualified metering obligation creates an incentive for renovations below the ‘major renovation’ threshold so as to avoid the metering obligation. IMB must not be ring-fenced from Member State decisions on the overall issue of how to improve the energy performance of buildings.

Article 9a(4), subparagraph 2 means nothing less than the replacement or transformation by 1 January 2027 of all individual meters and cost allocators already installed or to be by 2020 but which are not remotely readable. This concerns the majority of meters in case of heating, cooling and hot water. Given the tremendous work and financial investment already devoted, or in the process to be devoted, to the roll-out of such individual meters in multi-residential and/or commercial buildings, the proportionality of such a measure compared to the limited additional envisaged benefit — between a remotely readable and a not remotely readable meter — has clearly not been demonstrated. Therefore, proportionality demands that remotely readable devices be required only when a meter or a heat cost allocator is replaced, something that Article 9a(4), subparagraph 1 already requires as of 2020.

Amendment 7

EPBD Recital 9

Text proposed by the Commission CoR amendment In order to adapt this Directive to the technical progress, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to supplement it by defining the smartness indicator and enabling its implementation. The smartness indicator should be used to measure buildings’ capacity to use ICT and electronic systems to optimise operation and interact with the grid. The smartness indicator will raise awareness amongst building owners and occupants of the value behind building automation and electronic monitoring of technical building systems and will give confidence to the occupant about the actual savings of these new enhanced-functionalities.

Reason

This provision is redundant and should be deleted, as the discussion on what the ‘smartness’ of a building or a home entails is still in its early stages. When introducing an instrument of this kind, extensive consultation of the various stakeholders is necessary. It unnecessarily increases the administrative burden on firms and households. Therefore, its added value and cost-effectiveness should be demonstrated and the instrument should be evaluated. The subsidiarity test is negative for the smartness indicator. This amendment is linked to amendment 6 and policy recommendation 17.

Amendment 8

EPBD Article 1(2)

Text proposed by the Commission CoR amendment after Article 2, an Article 2a ‘Long-term renovation strategy’, to be submitted in accordance with the integrated national energy and climate plans of the Regulation (EU) XX/20XX [Governance of the Energy Union], is inserted: after Article 2, an Article 2a ‘Long-term renovation strategy in close coordination with regional and local authorities’ , to be submitted in accordance with the integrated national energy and climate plans of the Regulation (EU) XX/20XX [Governance of the Energy Union], is inserted: (a) the first paragraph consists of Article 4 of the Directive 2012/27/EU on energy efficiency, other than its last subparagraph; (a) the first paragraph consists of Article 4 of the Directive 2012/27/EU on energy efficiency, other than its last subparagraph; (b) the following paragraphs 2 and 3 are inserted: (b) the following paragraphs 2, 3 and 4 are inserted: ‘2. In their long-term renovation strategy referred to in paragraph 1, Member States shall set out a roadmap with clear milestones and measures to deliver on the long-term 2050 goal to decarbonise their national building stock, with specific milestones for 2030. ‘2. In their long-term renovation strategy referred to in paragraph 1, Member States shall set out a roadmap with clear milestones and measures to deliver on the long-term 2050 goal to decarbonise their national building stock, with specific milestones for 2030. In addition, the long-term renovation strategy shall contribute to the alleviation of energy poverty. In addition, the long-term renovation strategy shall contribute to the alleviation of energy poverty. The drafting and monitoring processes of such national strategies should include the necessary mechanisms to articulate a system of multi-level governance, geared towards ensuring that renovation measures have a territorial impact; 3. To guide investment decisions as referred to in point (d) in paragraph 1, Member States shall introduce mechanisms for: 3. To guide investment decisions as referred to in point (d) in paragraph 1, Member States shall introduce mechanisms for: (a) the aggregation of projects, to make it easier for investors to fund the renovations referred to in points (b) and (c) in paragraph 1; (a) the aggregation of projects, to make it easier for investors to fund the renovations referred to in points (b) and (c) in paragraph 1; (b) de-risking energy efficiency operations for investors and the private sector; and (b) de-risking energy efficiency operations for investors and the private sector; and (c) the use of public funding to leverage additional private-sector investment or address specific market failures’; (c) the use of public funding to leverage additional private-sector investment or address specific market failures; 4. To drive further developments in energy-efficient renovation, Member States shall introduce mechanisms for: (a) promoting cooperation between SMEs in groups and consortia so they can offer bundled packages to potential clients; (b) providing support for new forms of training and qualifications and structural improvements to existing training; (c) consolidating informal learning pathways; (d) earmarking European Social Fund resources for training and educating construction industry workers in energy efficiency matters; (e) providing information and training measures for building administrators and users regarding the need to renovate buildings.’

Reason

The long-term renovation strategy should be devised in close cooperation with regional and local authorities, as they are the most affected by this. In addition, construction workers’ knowledge and skills are crucial for improving the energy performance of buildings. Cooperation between contractors means that potential clients can be offered a more complete package of measures. Furthermore, information and training measures should primarily be aimed at administrators and users, with the goal of raising their awareness about the usefulness of renovating buildings.

Amendment 9

EPBD Article 8(6)

Text proposed by the Commission CoR amendment The Commission is empowered to adopt delegated acts in accordance with Article 23 supplementing this Directive with a definition of ‘smartness indicator’ and with the conditions under which the ‘smartness indicator’ would be provided as additional information to prospective new tenants or buyers. The smartness indicator shall cover flexibility features, enhanced functionalities and capabilities resulting from more interconnected and built-in intelligent devices being integrated into the conventional technical building systems. The features shall enhance the ability of occupants and the building itself to react to comfort or operational requirements, take part in demand response and contribute to the optimum, smooth and safe operation of the various energy systems and district infrastructures to which the building is connected.

Reason

This provision is superfluous and should be deleted. This amendment follows on from amendment 7 and ties in with policy recommendation 17 on subsidiarity.

Amendment 10

EPBD Article 10

Text proposed by the Commission CoR amendment Article 10 is amended as follows: Article 10 is amended as follows: (a) paragraph 6 is replaced by the following: (a) paragraph 6 is replaced by the following: ‘6. Member States shall link their financial measures for energy efficiency improvements in the renovation of buildings to the energy savings achieved due to such renovation. These savings shall be determined by comparing energy performance certificates issued before and after renovation.’; ‘6. Member States shall link their financial measures for energy efficiency improvements in the renovation of buildings to the energy savings achieved due to such renovation. These savings shall be determined by comparing energy performance certificates issued before and after renovation.’; (b) the following paragraphs 6a and 6b are inserted: (b) the following paragraphs 6a, 6b and 7 are inserted: ‘6 a. When Member States put in place a database for registering EPCs it shall allow tracking the actual energy consumption of the buildings covered, regardless of their size and category. The database shall contain the actual energy consumption data of buildings frequently visited by the public with useful floor area of over 250 m2 which shall be regularly updated. ‘6 a. When Member States put in place a database for registering EPCs it shall allow tracking the actual energy consumption of the buildings covered, regardless of their size and category. The database shall contain the actual energy consumption data of buildings frequently visited by the public with useful floor area of over 250 m2 which shall be regularly updated. 6 b. Aggregated anonymised data compliant with EU data protection requirements shall be made available on request, at least for the public authorities for statistical and research purposes.’ 6 b. Aggregated anonymised data compliant with EU data protection requirements shall be made available on request, at least for the public authorities for statistical and research purposes. 7. The Commission shall ensure the dissemination of knowledge about best practice in public and private funding arrangements and the grouping of small energy renovation projects. The Commission shall also ensure the dissemination of information about financial incentives to renovate.’

Reason

There is a need to share knowledge about best practice. A variety of inspiring examples have been developed in regions and Member States over the last few years.

II. POLICY RECOMMENDATIONS

THE EUROPEAN COMMITTEE OF THE REGIONS (CoR)

General recommendations

1. welcomes the vision of the role of regions and cities which the Commission sets out in the ‘Clean Energy for All Europeans’ package. It is in the cities and regions that the energy transition is actually taking place. The Committee of the Regions recommends developing this vision by indicating in what way the European Commission is supporting regions in the energy transition;

2. supports and welcomes the legislative proposals formulated by the European Commission on: pursuing the aims of smarter, cleaner energy for everyone; implementing the Paris objectives; supporting economic growth; promoting investment and technological leadership; creating new opportunities for employment; and improving people’s well-being. These proposals affect regional policy and the Committee of the Regions sees a role for the regions in the implementation thereof. The Committee of the Regions calls on Member States to involve local and regional authorities in shaping integrated national energy and climate plans;

3. supports and welcomes the Commission’s rationale in giving priority to energy efficiency. The cheapest energy is the energy we do not use. Energy efficiency can be viewed as a source of energy in itself, inexhaustible and available everywhere. Energy efficiency is crucially important for achieving climate and energy targets and is the most cost-effective way to achieve the energy union goals;

4. recalls that the fight against energy poverty is a crucial challenge for European energy policy which requires a multi-level response; therefore calls for the development of a common definition of energy policy as well as a set of targeted policy measures to address it; suggests in this context that a fixed share (at least 10 %) of the energy-saving obligations should be derived from measures or policies aimed at the most vulnerable consumers and that special financial instruments should be devised to allow the most vulnerable consumers to participate in, and to benefit from, energy efficiency measures;

5. points out that freedom of choice as regards the energy mix adopted runs the risk that the energy policy goals up to 2030 and beyond cannot be reached. The directives should therefore be made binding at EU level and accompanied by measures at national level;

Recommendations on the EED

6. notes that achieving the Paris targets will represent a major challenge for Europe. Europe will need to aim higher (40 % in 2030) in energy efficiency in order to meet the targets; it will not be enough to continue on the current path of 1,5 % energy saving a year. Raising this energy saving target level to 2 % per year will generate more economic growth and more employment and will lead to lower energy imports. In this context, it will also be necessary to adapt Annex V of the revised directive to ensure that only those energy-saving measures may be counted towards the ESOs which do not compromise other aims of EU climate policy (such as CO2 reduction) and that long-term sustainable solutions are incentivised;

7. for some regions and Member States this task is harder than for others, but energy savings and energy efficiency leads to more employment and higher economic growth everywhere;

8. understands the complexity of the situation that the European Commission finds itself in, but supports the target proposed by the European Parliament of 40 % by 2030;

Obligations

9. notes that the energy obligation is the most important instrument for achieving energy efficiency. A growing number of Member States are adopting this system. Over a period of five years, the number of Member States using this instrument has grown from 5 to 15. The regions in the Member States which have applied it are satisfied with the tool. The Committee of the Regions recommends that the other Member States also go over to using it;

10. when revising Article 8, recommends adopting a critical approach to the size of the firms which come under this regulation, because there is significant savings potential amongst smaller firms too;

Audits

11. notes that Article 8 stipulates that energy audits must be carried out on certain companies. The European Commission has not amended this article. The Committee of the Regions recommends that the article indeed be amended so that the same type of companies come under the directive in all the Member States. This would provide a level playing field for all the Member States and ensure that legislation is uniform. The requirement for energy audits in larger companies should include a selection criterion for the extent of energy use. This would be more proportionate than targeting just turnover and number of staff. In order to avoid double regulation, Article 8 should allow energy use already covered by the energy certificates of the EPBD to be excluded from audits;

12. advocates combining with the energy audit the obligation to take all energy measures whose costs can be recouped within 5 years. This obligation exists in the Netherlands, for example, in the form of a package of recognised measures per branch of industry. This makes it easier to enforce;

Metering

13. welcomes the fact that the European Commission is proposing to further empower consumers on the energy market by improving the information provided on their heating and cooling energy consumption and by strengthening their rights in the metering and billing of thermal energy, in particular for people living in multi-apartment buildings. However, the requirements regarding individual metering and billing for heat should be made conditional on cost-effectiveness and technical feasibility. Additionally, given the tremendous work and financial investment already devoted to the roll-out of individual meters, the proportionality of imposing remote readability compared to the limited additional envisaged benefit is questioned. In order to make sure information is provided more often, an obligation is being introduced for heat meters to be remotely readable. This requirement may be perceived as an invasion of privacy. The Committee of the Regions recommends that Member States take measures to safeguard people’s privacy and ensure appropriate data security, and that installation be voluntary, not mandatory;

14. the Committee of the Regions welcomes such measures being introduced, on condition that they are assessed for cost-effectiveness and technical feasibility. This is an important safeguard for the various rental systems operated in the Member States;

Funds

15. calls on the European Commission to earmark resources for clean energy for all Europeans after 2020 too, drawing not only on the Structural Funds, but also on the directly managed funds and the financial engineering instruments. The CoR supports the Commission’s commitment to reducing energy poverty and recommends making resources available via the Structural Funds (Social Funds, Regional Fund, Cohesion Fund) after 2020 for local and regional authorities to tackle such poverty;

16. calls on the European Commission to develop appropriate tools and measures to mobilise public funds and attract private investment from European, national, regional and local levels in the energy efficiency sector;

Recommendations on the EPBD

17. welcomes the Commission’s proposal to improve the energy performance of buildings. Around 75 % of buildings in Europe are energy inefficient and every year only 0,4 % to 1,2 % of building stock is renovated. There is huge energy-saving potential in increasing the energy performance of buildings, especially in Central-Eastern Europe;

18. recommends that public authorities and market players provide home owners with better information about energy renovation opportunities for houses (what, how and where), for example via an easily accessible website and attractive packages. In addition, the Committee of the Regions advocates requiring knowledge about energy renovation in houses and buildings to be included in education curricula for workers in the construction industry, aimed at SME businessmen and workers in the sector;

Electricity charging points in non-residential buildings

19. shares the European Commission’s view on the transition to sustainable transport (electric vehicles); supports the proposal to put infrastructure in place for electric transport in all new non-residential buildings, existing non-residential buildings (being extensively renovated) and new large residential buildings; and recommends that the Commission develop a European standard for charging points for electric vehicles so as to speed up the transition to sustainable transportation (electric vehicles);

20. expects that the ‘Smart finance for smart buildings’ initiative will help free up and attract large-scale private investment and endorses the initiative for supporting the scheme. One prerequisite is that the financial aspects thereof not be passed on to regions and municipalities. Local and regional authorities can play an active role in pooling applications for funding;

Public buildings

21. agrees with the moving of EED Article 4 on building renovation to the EPBD; regrets that EED Article 5 on the exemplary role of public bodies’ buildings is not included in the same move. The Committee of the Regions thinks that local and regional authorities likewise have an exemplary role to play in energy efficiency in the use of public buildings. The Committee calls on local and regional authorities to undertake to play such a role;

Competence, subsidiarity and proportionality

22. concurs with the legal basis upon which the European Commission is basing the EU’s competence in this. In accordance with TFEU Article 194, the EU is competent to take measures to promote, amongst other things, energy efficiency. Measures to combat energy poverty should come under TFEU Article 151. The assessment of subsidiarity principle compliance is partly positive and partly negative. The Committee of the Regions deems it to be warranted to set up and maintain a European target in energy efficiency. The Committee of the Regions is, however, opposed to the introduction of the smartness indicator by means of a delegated act, since the debate on the smartness indicator is still in its early stages. The assessment of proportionality principle compliance is positive.