EUROPEAN COMMISSION Brussels, 30.11.2016 SWD(2016) 402 final COMMISSION STAFF WORKING DOCUMENT EVALUATION

of

Articles 6 and 7 of the Energy Efficiency Directive (2012/27/EU) Accompanying the document Proposal for a Directive of the European Parliament and of the Council

amending Directive 2012/27/EU on Energy Efficiency {COM(2016) 761 final}

{SWD(2016) 403 final}



Table of contents 1 Introduction 1.1 Background to the initiative 1.1.1 Description of the initiative and its objectives 1.2 Evaluation questions 1.3 Method 1.4 Implementation state of play 1.4.1 Progress in the transposition of Article 6 1.4.2 Definition of‘central government’ 1.4.3 Share of public procurements covered by Article 6 1.4.4 Contract thresholds 1.4.5 Conditionalities 1.4.6 Armed forces 1.4.7 Services and buildings (Annex III) 1.4.8 Practical implementation 1.4.9 Main barriers 1.5 Answers to the evaluation questions 1.5.1 Effectiveness 1.5.2 Efficiency

1.5.3 Relevance 1.5.4 Coherence 1.5.5 Added value 2 Evaluation of Article 7 on energy efficiency obligation schemes and alternative measures 2.1 Background of the initiative 2.1.1 Description of the initiative and its objectives 2.1.2 Baseline situation 2.2 Evaluation questions 2.3 Method 2.4 Implementation state of play 2.4.1 Overall progress 2.4.2 Policy measures 2.4.3 Calculation methodologies 2.4.4 Monitoring and verification of savings 2.5 Answers to the evaluation questions 2.5.1 Effectiveness 2.5.2 Efficiency 2.5.3 Relevance 2.5.4 Coherence 2.5.5 EU added value

3 Conclusions 3.1 Conclusions on the implementation of Article 6 3.2 Conclusions on the implementation of Article 7 4 Annexes to the final report



1Introduction The Commission's Communication on a Framework Strategy for the Energy Union adopted on 25 February 2015 indicates that Energy efficiency, contributing to moderation of demand, represents one of the five mutually-reinforcing and closely interrelated dimensions designed to bring greater energy security, sustainability and competitiveness in Europe. As part of the Energy Union Strategy, the Commission announced 45 key actions to be brought forward over the course of 2015 and 2016. Review of Directive 2012/27/EU on energy efficiency (EED) was one of these. Energy efficiency plays a prominent role as the Commission called on Member States to treat energy efficiency as an energy source in its own right in its Energy Union Strategy of 25 February 2015. Directive 2012/27/EU on energy efficiency establishes a common framework of measures for the promotion of energy efficiency within the EU in order to ensure the achievement of the 20 % headline target on energy efficiency by 2020 and to pave the way for further energy efficiency improvements beyond that date. It was published in the Official Journal on 14 November 2012 and entered into force on 4 December 2012. Member States had to transpose it by 5 June 2014 (apart from certain provisions for which a different transposition date is foreseen). The Energy Efficiency Directive, Energy Performance of Buildings Directive, Energy Labelling Directive and Ecodesign Directive are the key building blocks of the current energy efficiency framework. Many climate policies, such as the CO2 performance standards for passenger cars and light commercial vehicles, also make a major contribution to improving energy efficiency. Thanks to these instruments, to national measures, and thanks also to an increase in EU and national financing, significant progress has been achieved by Member States in terms of energy savings over the past ten –years, contributing to the overall 2020 energy and climate policy objectives. The effectiveness and impact of energy efficiency investment funding strongly depends (inter alia) on the implementation of energy efficiency legislation, including the Energy Efficiency Directive. The 2012 Energy Efficiency Directive establishes a set of binding measures to help the EU reach its 20 % energy efficiency target by 2020. Under the Directive, all Member States are required to use energy more efficiently at all stages of the energy chain from its production to its final consumption. New national measures have to ensure major energy savings for consumers and industry alike. These include measures implemented under the following articles: Article 1, 3 EU countries set national energy efficiency targets for 2020 Article 4 EU countries establish long term strategies to facilitate investment in the renovation of all buildings Article 5 EU governments to carry out energy efficient renovations annually on at least 3 % of the buildings they own and occupy by floor area Article 6 the public sector in EU countries to purchase energy efficient buildings, products and services Article 7 energy distributors or retail energy sales companies have to achieve additional 1.5 % energy savings per year through the implementation of energy efficiency measures until 2020 (Member States can opt to achieve the same level of savings through alternative measures) Article 8 large companies to make audits of their energy consumption to help them identify ways to reduce it, and SMEs that benefit from incentives to undergo energy audits Articles 9-11 empowering energy consumers to better manage consumption. This includes easy and free access to data on consumption through individual metering Articles 14-15 Member States promote efficient heating and cooling and high efficiency cogeneration Member States were required to transpose the Directive's provisions into their national laws by 5 June 2014. It is early to evaluate the effects of the Directive after only one and a half years from its due date for transposition. Member States had to set their national energy efficiency targets under Article 3 and report them to the Commission by 30 April 2013. The Commission has evaluated these targets already and summarised the results in its 2014 Communication on energy efficiency. According to Article 24(8) and (9), the Commission is required to report to the Council and the Parliament in 2016 on the implementation of Articles 6 and 7 and if appropriate propose legislative changes. Given that the consumer is to be at the centre of the Energy Union, Articles 9-11 were evaluated, also in relation to the Market Design Initiative and the review of the Renewable Energy Directive, to reach the most benefits for citizens. To support Member States a Communication was published on the implementation of the Energy Efficiency Directive, to which seven Guidance Notesin the form of Staff Working Documents on various articles of the EED (Articles 5, 6, 7, 8, 9-11, 14 and 15) were attached. Moreover, timely transposition and implementation of the EED is facilitated through constant collaboration between the Commission and Member States and through a dedicated Concerted Action for the EED. DG Energy has met bilaterally with Member States on numerous occasions and organised missions to individual Member States. Information on the implementation of current energy efficiency policies is available from the regular dialogue with Member States and the reporting obligations under the EED. This information is built on: 1) Member States' Annual Reports on progress towards their national indicative energy efficiency targets; 2) the National Energy Efficiency Action Plans (NEEAPs) submitted every three years by Member States, with the most recent one submitted in 2014 and the next due in 2017; 3) the Commission's annual report assessing the progress of the EU towards reaching the 2020 target and checking the national implementation of the EED (the first, 2015 Progress report was published along with the Report on the State of the Energy Union on 18 November 2015). Feedback on practical application at Member State level is also provided through the Concerted Action for the EED and the building-related Concerted Action work on the EPBD.

A small number of formal complaints have been received through the "CHAP" system. These have been investigated and mostly found not to involve breaches of the Directive. Lessons learnt (for example, reasons for protracted implementation) are fed into the evaluation. In line with the requirement of Article 3(2) of the EED, an assessment was carried out by the Commission in 2014 to review progress towards the EU 20 % energy efficiency target for 2020, the findings of which were presented in the Energy Efficiency Communication, adopted on 23 July 2014. In summary, analysis showed that the EU is on the right track in terms of reducing its primary energy consumption which was due to some extent to economic crisis (1/3) but for large part (2/3) it was due to energy efficiency improvements taken by Member States which is a positive sign. The EU is expected to achieve energy savings of 18 %-19 % by 2020 – missing the 20 % target by 1 %-2 %. The gap could be averted if Member States implement fully the existing EU legislation on energy efficiency. An updated analysis of how Member States are achieving the 20 % 2020 target on energy efficiency was published as part of the State of the Energy Union package in November 2015. This analysis confirmed that there is significant progress in terms of energy efficiency influenced by rather high level of ambition in Member States. According to the reporting obligations laid down in Article 24 of the EED the Commission is required to review the effectiveness of implementation of Article 6 (on purchasing by public bodies) and of Article 7 (on energy efficiency obligation schemes and alternative measures) and report on progress to the European Parliament and the Council with accompanying legislative proposals where appropriate. This evaluation will support this reporting. In this context and given the recent implementation date of the EED, the evaluation is therefore focused on those elements of Directive insofar they are either subject to the reporting obligation or subject to parallel energy and climate initiatives which potentially have an impact on the EED regulated policies. The results of this evaluation will feed into the impact assessment of the Review of the EED. This evaluation is supported by a stakeholder consultation process. The scope of the evaluation of the EED therefore assesses the following elements as required by the reporting obligation under Article 24(8) and (9): 1)Article 6 on purchasing by public bodies of energy efficient buildings, goods and services This evaluation is based on the principles laid out in the Commission's Communication "Better regulation for better results - An EU agenda" of 19 May 2015 (COM(2015) 215 final) (the five Better Regulation criteria of relevance, coherence, effectiveness, efficiency and EU-added value, and includes the following elements: 1.Overview of the implementation of Article 6 of the EED in the Member States; 2.Assessment of the effectiveness, efficiency, coherence, EU added value and relevance of Article 6; 3.Conclusions and recommendations. Due to the recent transposition date (5 June 2014), there is a fragmented overview of how the Member States have transposed Article 6 and on how it is being implemented. The lack of complete data on practical implementation in the Member States inevitably impacts this evaluation which can therefore only be considered partial. 2)Article 7 on energy efficiency obligation schemes or alternative measures The evaluation on Article 7 focusses on the following elements: 1.An overview of the overall state of play regarding targets and measures notified by Member States for the purposes of Article 7; 2.A quantified assessment of progress from the measures introduced by Member States under Article 7 and their contribution to the achievement of the overall EU 2020 energy efficiency target and indications for their contribution to the 2030 target; 3. Analysis of costs and benefits including administrative burden related to the implementation of Article 7; 4.Examination of implementation of Article 7 to this date and, in particular, examination of the options for amendments contained in Article 24(9) with a view of considering any legal revisions and/or amendments of Article 7 and/or Annex V. The analysis of this report is based on information notified by Member States, on energy savings as estimated (from the measures put in place) by the Member States and on studies carried out for the purpose of assessing the national notifications. Further results on achieved savings will become available as of mid-2016 as the Member States will submit their Annual Reports under Article 24(1).



Evaluation of Article 6 on public procurement

1.1Background to the initiative Description of the initiative and its objectives Article 6 paragraph (1) of the EED states that "Member States shall ensure that central governments purchase only products, services and buildings with a high energy-efficiency performance insofar that it is consistent with cost-effectiveness, economic feasibility, wider sustainability, technical suitability and sufficient competition as referred to in Annex III.” This obligation applies for contracts passed by central governments with a value above specific thresholds described in the Public Procurement Directive. Annex III of the EED provides more details on what should be considered as high energy-efficiency performance for some products. Article 6, paragraph 3, of the EED encourages Member States to apply these public purchase requirements to other public bodies, including at the regional and local levels. One of the objectives of the EED is indeed to improve and strengthen energy efficiency via the system of public procurement. It is considered (Recital 19 of the EED) that, in the attempt to reach the 2020 target and in relation to energy efficiency, the central governments of the EU Member States should “lead by example” and make energy-efficient purchasing decisions. The main ideas behind the requirements of Article 6 of the EED are that central governments have strong market power and that the public sector is an important driver to stimulate market transformation towards more efficient products, buildings and services (Recital 15 of the EED). Every year public authorities in the EU are estimated to spend around 18 % of GDP on the purchase of services, works and supplies . 3.1.2 Baseline situation Before the adoption of the EED, the Energy Services Directive (ESD) already contained legally binding provisions for energy end-use efficiency in the public sector. These provisions were complemented with the Energy Star Communication, the public procurement framework and the Green Public Procurement initiative. The impact assessment of the EED showed that the ESD had not adequately driven Member States to oblige public bodies to purchase high energy performance products, vehicles and buildings. The same impact assessment showed estimates for primary energy savings in 2020 ranging between 8.9 and 17.9 Mtoe (and 2.5-5 % of the 20 % target) from the adoption of more stringent energy efficiency requirements for public procurement.



To be effective, energy efficiency standards must be applied at the right stage of the public procurement procedure. The link between the EU Public Procurement Directives and Article 6 of the EED will be addressed more in detail under section 3 when assessing the coherence issue.



Objective of Article 6: Each Member State shall ensure that central governments purchase only products, services and buildings with a high energy-efficiency performance insofar that it is consistent with cost-effectiveness, economic feasibility, wider sustainability, technical suitability and sufficient competition. EU public procurement framework: How to purchase? Directive 2014/24/EU on Public Procurement defines rules on technical specifications, award and evaluation criteria, exclusion and selection criteria. It allows additional conditions to be described in sectoral legislation such as the Energy Efficiency Directive. It encourages the definition of common methodologies for life cycle costing. It only covers contracts with a value above thresholds: o€134 000 for products o€134 000 for services o€5 186 000 for works Scope of Article 6: What to purchase? + + + + cost-effectiveness + economic feasibility + wider sustainability + technical suitability + sufficient competition Public procurements at central governments level. Public procurements of products, services and buildings of high energy-efficient performance. Public procurements with value above thresholds. Public procurements respecting 5 conditionalities: Article 6(2) allows Member States to exclude contracts of the armed forces. Article 6(3) encourages energy efficiency in public procurements at local and regional levels. Article 6(4) encourages aggregate energy efficiency when purchasing products package. Annex III describes in particular what should be considered as high energy-efficiency performance for some products.

External Factors: Different starting points in Member States and know-how; National and regional transposition and implementation measures; National energy mix and energy markets; Differences in national administrations and enforcement systems; Cost-effectiveness; Technological development and innovation; Access to national public and private finance. Budgetary cycle Expected Results/Impacts: Achieved energy savings that contribute to the 2020 energy efficiency target; Reduced GHG emissions and reduced energy imports; Reduced resource use for energy extraction, transformation, transportation and use; Jobs (created and retained) in the renovation, energy efficiency and energy services sectors; Benefits to human health and environment, more efficient industrial processes; Exemplary role of central government in serving as a model for other purchasers Consumer awareness of energy efficiency activities and impact; Reduced energy bills for EU citizens; New business and financing models, competitiveness, growth of SMEs.

1.2Evaluation questions This section is structured around the main evaluation questions included in the Evaluation Roadmap which are presented below: Effectiveness: To what extent have the measures referred to in Article 6 achieved its objectives? What main factors, in particular related to the national implementation of Article 6 have positively influenced, or prevented achieving the objectives? What are stakeholders and/or citizens' expectations for the EU role to ensure that the objectives related to Article 6 are achieved? Efficiency Is there potential to simplify and deliver the objectives of Article 6 more efficiently? To what extent are the costs involved justified, given the changes/effects which have been achieved? To what extent are the costs proportionate to the benefits achieved? What factors are influencing any particular discrepancies? Relevance How relevant is the EU intervention to EU citizens? Do the objectives of Article 6 correspond to the needs of the policy area concerned/ to what extent is the intervention still relevant? Are there some ways to simplify or streamline the provisions of Article 6? Coherence To what extent the provisions contained in Article 6 of the EED are internally coherent or what are the possible overlaps with other relevant EU legislation? Do provisions contained in Article 6 contradict or complement other EU interventions with similar objectives? EU added value What has been the EU-added value of Article 6 and do the issues addressed continue to require action at EU level?

Why would the objectives of Article 6 be better achieved by EU action? What is the additional value resulting from the EU intervention(s), compared to what could be achieved by Member States at national and/or regional levels? 1.3 Method Most of the findings of this evaluation are based on the external study launched in May 2015 and finalised in December 2015 (for more details on the process, see Annex 2. The results from the online public consultation on the review of the EED, that took place from 4 November 2015 until 29 January 2016, were also reflected in this evaluation (see Annex 3). 1.4Implementation state of play In 2013 the Commission published seven Guidance Notes on specific articles of the EED in order to help the Member States in their transposition and implementation process. Article 6 was the subject of one of these guidance notes . The implementation overview that follows is based on a specific and scoped methodology and does not preclude nor constitute the legal assessment of the European Commission of the transposition and implementation of EU legislation. Progress in the transposition of Article 6 According to an analysis carried out for the Commission and covering the period up to September 2015, 20 Member States have transposed Article 6 of the EED into their national legislation. A slim majority of Member States have transposed all of the individual requirements of Article 6 of the EED. One Member State announced that it would not transpose Article 6 based on the fact that the relevant energy efficiency requirements are already applied through existing policy and practice and one Member State indicated that it would rely on legislation in force before the adoption of the EED. Form of transposition Member States Countries with direct transposition BG, HR, HU, IE, IT, LT, MT, PT, RO (specific efficiency laws) DK, FI, UK (circular/policy notes/decision in principle) Countries with implementation plus additional national rules AT, CZ, LV, SE, SK (procurement and energy efficiency legislation). BE, SI, SP (public procurement legislation) Countries with planned transposition but not yet completed CY, EE, EL, FR, LU, PL Other countries NL (not transposed in legal order) DE (pre-existing law was cited) Definition of‘central government’ Most Member States transposed the term ‘central government’ identically with or in line with the Directive.). Some of these Member States refer to national lists of central government bodies or European lists such as the list of Annex IV of Directive 2004/18/EC. While the analysis carried out for the Commission revealed that there are linguistic and legal differences concerning the definition of “central government” among the Member States, the definitions used have a similar legal meaning and as such do not give rise to differences in interpretation of the term ‘central government’. Share of public procurements covered by Article 6 Previous research has shown that the proportion of procurement that is carried out by the bodies covered by the obligation of Article 6 differs strongly between Member States. Overall, the EU-share of public procurement contracts attributed to central government bodies is estimated to be approximately 16 %. At Member State level this varies between 5 % and 86 %. Including procurement by central agencies and offices, the total share of central procurement becomes 29 %, with values at Member State level ranging from 8 % to 97 %. The difference in shares can be mostly attributed to the size of the country, with central government's proportion shrinking with the size of the country. Contract thresholds 17 of the 28 Member States have opted for the same thresholds as the EU thresholds in the Public Procurement Directive. In two Member States thresholds are not applied, therefore energy efficiency requirements should be considered in public contracts of any value. In 7 Member States, lower thresholds are applicable. The evaluation showed that no structural information is collected by the Member States on the percentage of central government contracts for each of the items listed in Annex III of the EED with a value above the applicable thresholds. Analysis of European public procurement data shows that for 2010 the share of procurements of products (and not services and buildings) covered by Annex III in total procurement by central government was on average 0.23 % with values ranging between 0 % and 3.89 %.

Conditionalities Most Member States (15) have or will make use of all five conditionalities (cost-effectiveness, economic feasibility, wider sustainability, technical suitability and sufficient competition). Some of these Member States did this without defining or elaborating on the concepts in policy notes or legislative frameworks, while others gave guidance. Guidance was mostly related to the cost-effectiveness criterion, only one Member State gave guidance on multiple conditionalities. 3 Member States did not make use of any of the conditionalities, whereas 6 other Member States only implemented some of the conditionalities. From the evaluation at national level, it can be concluded that out of the list of conditionalities, “cost-effectiveness” and “economic feasibility” are the most widely implemented. Armed forces Article 6(2) of the EED contains two specific exclusions in relation to the armed forces. The majority of the EU Member States have transposed with identical words the first exclusion, i.e. "conflict with the nature and primary aim of the armed forces” in their national legal order. Other Member States appear to have implemented a broader exclusion than Article 6(2) prescribes, while a couple of Member States have not transposed this part of the Article at all. With regard to the second exclusion – “military equipment” – again the majority of the Member States have transposed this in an identical manner as set out in the Directive. At the same time, it is noteworthy that a significant number of Member States have chosen not to transpose this exclusion. Services and buildings (Annex III) While Annex III (a) to (d) of the EED sets out the purchasing obligations imposed on central governments when purchasing each category of product, Annex III (e) of the EED is designed to ensure that similar energy efficiency considerations are taken into account when central government is tendering for the provision of services, for example cleaning and IT contracts. Energy efficient products are covered under the obligations when these products are newly purchased by the service providers and (partially) necessary for providing the service.The content of Annex III(e) of the EED in relation to services has largely been transposed by 15 Member States in a similar form as expressed in Annex III of the Directive, while six Member States have not or have incompletely transposed Annex III(e). Annex III(f) - relating to contracts for buildings purchased or rented - is transposed into the national law of 15 Member States in a relatively straightforward fashion. These are mostly similar to how the Member States transposed the content of Annex III(e). Practical implementation The study carried out by the Commission included asking public authorities what kind of support they receive to help them use energy efficiency criteria in public procurement. Various support mechanisms were mentioned, including the provision of criteria documents (which include minimum requirements and award criteria for different product groups), specific advice, the provision of specific methodologies (e.g. life cycle costing), the availability of websites and web-portals, the provision of web based tools and handbooks and guidelines. Among these the added value of the provision of specific methodologies was considered highest, followed by the availability of websites/web-portals and web based tools. However, the level and quality of these measures differed among Member States, which probably relates to the awareness level and the limited availability of the resources and tools in place. Main barriers According to the analysis and the survey made by the external contractor , the main barriers which prevent procurement bodies from applying energy efficiency criteria in their public procurement procedures relate to (i) a general lack of awareness, (ii) a perceived inconsistency of energy efficiency criteria with other procurement criteria, (iii) a lack of knowledge and expertise, (iv) higher initial costs when procuring energy efficient products, services or buildings, and (v) experienced difficulties to check the requirements or the lack of information. The survey also revealed that the main reasons for not selecting the most energy efficient offer were mainly related to (i) the high initial costs compared to the savings in terms of energy efficiency, (ii) the limited number of products, services or buildings available on the market, or (iii) the fact the most efficient offers did not fulfil the technical requirements. 1.5Answers to the evaluation questions To assess the evaluation criteria of effectiveness, efficiency, relevance and coherence, and also EU added value, examples are given of how public purchasing bodies operate in the Member States and how this approach is a consequence of the implementation of Article 6 of the EED or supports its positive application. This description is complemented by an assessment of the practical implementation, such as an inventory of the processes that have been put in place to assist central government standards set by the EED, the way conditionalities were implemented in national law, and the measures put in place at regional levels. The evaluation also assesses how effective this environment is in stimulating energy efficient public procurement in terms of the scope of Article 6, the estimation of the value of all public contracts in public procurement and the barriers perceived by public purchasing bodies. This evaluation is mainly based on a qualitative assessment. The study has revealed a clear lack of data and statistics (for example increase or not of the share of public procurements using energy efficiency criteria), which prevents comparing results with an initial reference scenario. Effectiveness To what extent have the measures referred to in Article 6 achieved its objectives?

The evaluation of the implementation of Article 6 to date reveals that it is too early to judge the achievement of the objectives of Article 6 due to the following reasons: 1)The transposition deadline was 5 June 2014 and many Member States are still putting in place the needed transposition and implementation measures related to Article 6 (time constraint); 2)There is insufficient experience in the Member States on implementing Article 6; 3)There are no data allowing the quantification of progress in the rate of public procurement applying energy efficiency criteria of Article 6 of the EED (data constraint). What main factors, in particular related to the national implementation of Article 6 have positively influenced, or prevented achieving the objectives? The main factor that influenced achieving the objectives of Article 6 at national level is the existence of prior practice in terms of ‘green procurement’ and the availability of tools to support this practice, such as handbooks or methodologies for the assessment of life-cycle costs. According to the above-mentioned analysis, it appears that the main barriers preventing procurement bodies from applying energy efficiency criteria in their public procurement procedures relate to –A general lack of awareness about energy efficiency requirements in public purchasing; –Perceived inconsistency (including incompatibility) of energy efficiency criteria with other procurement criteria; –A lack of knowledge and expertise; –Higher (initial) costs experienced when procuring energy efficient products, services or buildings; and –Difficulties in checking the requirements for public procurement or in obtaining the necessary information. The survey also revealed that the main reasons for not selecting the most energy efficient offer were mainly related to (i) the high initial costs compared to the savings in terms of energy efficiency, (ii) the limited number of products, services or buildings available on the market, or (iii) the fact the most efficient offers did not fulfil the requirements. Overview of processes and tools in place to stimulate energy efficient purchasing The analysis of the processes and tools in place in the Member States to support energy efficient purchasing and/or establish whether a given product meets the requirements listed in Article 6(1) of the EED has been mainly based on individual interviews with representatives of the Member States operating at central government level. Processes and tools used in the Member States include: General website, general information centres and web based tools; Criteria documents (which include minimum requirements and award criteria for different product groups); Specific support by government experts; helpdesk, technical support, advice; Handbook and /or guidelines on certain products ;

Specific methodologies, e.g. the assessment of lifecycle costs; Specific advice/expertise, information campaigns, education, seminars, specific projects, conferences; Database ; Co-financing options. Tools and specific methodologies are, for example, mechanisms to calculate energy efficiency savings providing guidance on specific products (e.g. Total Costs of Ownership (TCO), Energy Efficiency Calculation Tools (EEC), Best Value Procurement (BVP) and LCC tools for all products). Lifecycle cost tools were explicitly mentioned by policy makers in Denmark and Germany during the interviews. Specific methodologies and web based tools were considered very useful. For example, Swedish and British procurement bodies mentioned that they used the standardised criteria documents and that this was useful in advance planning. However, the general impression is that there are strong differences between Member States on the level, quality and availability of processes in place to help the purchasing bodies. Procurement bodies from Cyprus, the Czech Republic and the UK mentioned receiving support in the form of 4 or more different measures, whereas other procurement bodies mentioned receiving only one or two of the support types. Best practice in energy efficient purchasing According to a 2010 study, the overall front runners on Green Public Procurement in the EU are the Netherlands, Denmark, Norway, Sweden and the UK. Procurement bodies in several Member States mentioned framework agreements or specific websites they use or are obliged to use when tendering. These were considered useful and effective – but drawbacks mentioned were the monopoly positions of the selected contractors and difficulties for smaller producers of energy efficiency products to be included. One of the services mentioned is Hansel in Finland. Similar tendering and information services are provided in other Member States (e.g. PIANO in the Netherlands , the Office of Government Procurement in Ireland , the State Regional Development Agency in Latvia and the Shared Service Entity of Public Administration in Portugal). Since June 2015 the European Commission Green Public Procurement (GPP) Helpdesk is working on information sharing in the form of webinars on Life Cycle Costing (LCC) tools for public procurement, developing calculation tools for public authorities that aim to facilitate the application of common LCC methods for purchasing products (of which some procurement bodies/policy makers are already aware) . Processes and tools to stimulate energy efficient purchase by non-central governments According to Article 6(3) of the EED, Member States must “encourage” public bodies, including at regional and local level, to follow the exemplary role of their central governments to purchase only products, services and buildings with high energy-efficiency performance. In practice, some central governments have decided to extend the obligation by means of a statutory provision, while others have issued internal procurement guidelines to such bodies. The biggest differences between regional/local and central governments appear to be in relation to funding and awareness levels. Several interviewees mentioned the funding difficulties of non-central government bodies when procuring energy efficient products, services or buildings. Funding energy efficient procurement is considered more difficult for non-central procurement bodies and, according to some interviewees, non-central bodies are also less aware of the energy efficiency requirements. Several projects were recently launched at European level under the H2020 Energy-Efficiency Call 2014 to support public authorities notably at local or regional level in applying GPP criteria: Greens ; CEPPI2, Grasps , SPP Regions . What are stakeholders and/or citizens' expectations for the EU role to ensure that the objectives related to Article 6 are achieved? 52 % of all participants shared the view that existing EU energy efficiency requirements for public procurement are not sufficient to achieve the needed impact of energy savings, as opposed to 29 % who had no view on this and 19 % who believed that requirements are sufficient. Participants argued that provisions at a Member State level would be sufficient, but that otherwise requirements would be very complicated and difficult to understand. Some also noted that the scope of the requirements were too narrow, by focusing only on 'central governments'. Efficiency Is there potential to simplify and deliver the objectives of Article 6 more efficiently? While it is too early to judge whether the provisions of Article 6 could be simplified, the study supporting this analysis identified several avenues for improving the implementation of this article, such as increasing the practical knowhow; improving guidance and tools; the increase of awareness; the development of internal guidelines; the creation of national public expertise centres. (See also Recommendations section). To what extent are the costs involved justified, given the changes/effects which have been achieved? To what extent are the costs proportionate to the benefits achieved? What factors are influencing any particular discrepancies?

As regards cost efficiency, one of the conditionalities specifically asks to assess the cost-effectiveness of the energy efficient criteria. The evaluation at national level revealed that out of the list of conditionalities, “cost-effectiveness” and “economic feasibility” are the most widely implemented ones. Therefore, while the administrative cost of putting these processes in place could not be estimated, by systematically including life-cycle cost-efficiency criteria for procurement, rather than the initial cost, the cost-effectiveness of these processes is expected to increase. Are there some ways to simplify or streamline the provisions of Article 6? As regards ways to simplify or streamline the provisions of Article 6, the evaluation suggests a need for clarification, guidance to implement and to strengthen the synergies with others existing frameworks on sustainable public procurement, such as the EU voluntary scheme on Green Public Procurement (See under Recommendations section).



Relevance How relevant is the EU intervention to EU citizens? The main idea behind Article 6 of the EED is related to the fact that central governments represent a strong market power and that the public sector constitutes an important driver to stimulate market transformation towards more efficient products, buildings and services . Over 250 000 public authorities in the EU spend around 18 % of GDP on the purchase of services, works and supplies . In 2008, approximately a fifth of that total annual value was procured at European level (so, above the specified thresholds), which is approximately 3.1 % of the total GDP of the European Union . Central governments can contribute to policy objectives, such as: Supporting certain markets by purchasing specific energy efficient products, services and buildings; Serving as an example for regional and local governments to push for energy-efficient procurements; Providing a push for energy efficient purchasing decisions which the market will (most likely) follow, thereby providing incentives for innovation in the field of energy efficiency; Eliminating specific market (entry) barriers and; Releasing public resources for other purposes by the decrease of energy consumption through energy efficiency improvement measures. Firstly, the EU intervention is therefore relevant to EU citizens by providing better value for money in the operations of public administrations. Secondly, it acts as a ‘pull’ factor encouraging manufacturers to place on the market better (i.e. with higher profit margins) products: the 2011 Energy Star Communication showed that public procurement obligations are a strong driver for manufacturers for factoring energy efficiency into their production processes. Thirdly, by transforming the market towards greater efficiency it allows consumers to benefit from this trend and reduce their energy bill given that the majority of items covered by Annex III of the EED are consumer products. This includes products for which there are energy labels, products covered by Eco-design regulations, products under the Energy Star programme , (lighting, boilers, fans, refrigeration, washing machines and dishwashers, tumble driers, vacuum cleaners, personal computers and displays, imaging equipment, copiers, faxes, printers, scanners, televisions, air conditions as well as tyres and buildings. The list is therefore not fixed and exhaustive, with the exception of tyres and buildings, because the product list of Energy Star, Energy labels and products under Eco-design regulations can be extended within the respective Directives. Do the objectives of Article 6 correspond to the needs of the policy area concerned/ to what extent is the intervention still relevant? There have been no changes in the policy framework making the intervention less relevant. Coherence To what extent the provisions contained in Article 6 of the EED are internally coherent or what are the possible overlaps with other relevant EU legislation? Coherence with the EU public procurement legislation

The EU Public Procurement Directive was revised at around the same time as the EED was adopted. The two work together and complement each other. The Public Procurement Directive clarified what public bodies may do in terms of the criteria they use; the EED identifies a certain, more limited set of criteria that they must use. The guidance note published in 2013 clarified the relationship between Article 6 and the EU Public Procurement Directive: The Public Procurement Directive sets the framework for how procurement should be undertaken with the aim of ensuring principles such as fair competition and getting best value for taxpayers’ money. It leaves to specific legislation, such as the EED, any definition of what has to be purchased. The rules included in such specific legislation need, however, to be in line with the rules of the general procurement framework. In the case of the EED the principles of 'acting fairly' and 'getting value for money' are ensured by the fact that the minimum requirements the procured items must meet are openly-available/non-proprietary and common and they aim at minimising the life-cycle cost of these items. These clarifications remain valid also for the new Public Procurement Directive (PPD) adopted in 2014 (2014/24/EU). This Directive includes some novelties on sustainability issues such as the cost-benefit and the life cycle costing approaches (Articles 67 and 68). In particular, Article 67 of the PPD includes a description of the ‘cost-effectiveness approach’ which may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question’. Life-cycle costing is provided as an example of a cost effectiveness approach, with Article 68 encouraging contracting authorities to move away from evaluating the lowest delivery cost towards consideration of the whole-life/long-term cost of the works, supplies or services procured . Energy consumption is listed amongst the factors that may be taken into account under a life-cycle cost approach. The requirements of Article 6 of the EED are in line with and complement the above-described provisions laid down in the New Public Procurement Directive and more specifically Articles 67 and 68 of that Directive. Coherence with EU legislation on energy labelling and on ecodesign The provisions contained in Article 6 complement other EU policies with similar objectives such as the EU energy labelling and ecodesign rules. In the case of products regulated under EU legislation on energy labelling and ecodesign Member States have to purchase only those products that belong to the highest energy efficiency class possible in the light of the need to ensure sufficient competition. For products covered by Ecodesign implementing measures adopted after the entry into force of the EED, central governments may only purchase products that comply with energy efficiency benchmarks specified in that implementing measure. Coherence with EU legislation on energy performance of buildings The Energy Performance of Buildings Directive (EPBD) and the Energy Efficiency Directive are the two main directives aiming at reduction of energy demand by buildings. In purchasing or making new rental agreements for buildings, central governments will in general have to choose only buildings which comply with the minimum energy performance requirements that the Member State in question has set under the EPBD. Article 6 and Annex III of the EED indicate that purchased or rented buildings have to meet the minimum energy performance requirements set under Article 4 of the EPBD. The link between Article 6 and the EPBD requirements means that central government must, in public procurement contracts, opt for energy efficient buildings. Article 5(1) of the EED imposes an obligation on central governments to gradually upgrade their existing building stock, so that each year 3 % of buildings owned or occupied by central government is renovated to the minimum energy performance requirements set under the EPBD. While the obligation in Article 5(1) is designed to improve the energy efficiency of the public building stock, the obligation in Article 6(1) and Annex III(f) is designed to prevent the addition of new buildings or the renewal of leases for existing buildings which do not meet the minimum requirements. Do provisions contained in Article 6 contradict or complement other EU interventions with similar objectives? No contradiction between the provisions of Art 6 EED and EU public procurement legislation has been identified. In terms of EU energy efficiency legislation on products in particular, Article 6 provides a complement in that it stimulates the take up of products covered by EU eco design and labelling regulations. Added value What has been the EU-added value of Article 6 and do the issues addressed continue to require action at EU level? Why would the objectives of Article 6 be better achieved by EU action? What is the additional value resulting from the EU intervention(s), compared to what could be achieved by Member States at national and/or regional levels?

The experience from the implementation of the previous EU policies on energy efficiency in particular Directive 2006/32/EC on energy end-use efficiency and energy services, showed that the lack of a detailed EU framework made it difficult to achieve the energy savings target agreed by Member States. The Impact Assessment of the EED estimated that having a common EU framework would reduce costs, allow Member States to benefit from the scale of the internal market and allow national policy-makers to learn from each other. Moreover, the provisions of a common EU framework aim at creating a level-playing field across the internal market.

2Evaluation of Article 7 on energy efficiency obligation schemes and alternative measures 2.1Background of the initiative Description of the initiative and its objectives Article 7 on Energy Efficiency Obligation Schemes (EEOSs) requires each Member State to establish an energy efficiency obligation scheme or alternative policies measures that would deliver a set amount of end-use energy savings over the 2014-2020 obligation period, equivalent to 1.5 % savings of annual energy sales. An EEOS is a scheme established nationally by requiring energy companies to achieve yearly energy savings of 1.5 % of annual sales to final consumers. In order to reach this requirement, companies have to carry out measures which help final consumers improve energy efficiency. This may include improving the heating system in consumers' homes, installing double glazed windows, or better insulating roofs to reduce energy consumption. 'Alternative measures' are those undertaken by the government or other public authorities that have the effect of reducing end-use consumption such as, Energy or carbon taxes; financing instruments or fiscal incentives; regulations or voluntary agreements, training, education or information measures etc. Article 7 is a pivotal provision of the EED. The Commission services estimated that Article 7 and related Annex V would be responsible for more than half of the energy savings the Member States should achieve under the EED. In implementing this provision, Member States can choose from a wide range of policy measures, energy using sectors and individual energy efficiency improvement actions. To ensure proper implementation of Article 7 and Annex V and the possibility for adjustment of the national or regional policy measures and the methodology used, the EED required Member States to notify to the Commission their detailed plans already by 5 December 2013. These plans needed to include the Member States’ planned, proposed or legally defined design and methodology, for the operation of their energy efficiency obligation scheme and/or alternative measures to reach the energy savings target under Article 7. Informal bilateral meetings between Members States and the Commission services took place in winter and early spring 2014 to discuss these plans so as to identify possible elements of improvement. Member States had to notify their legal transposition of Article 7 by the general transposition deadline of 5 June 2014. Some elements of Article 7 were notified also as part of the first EED National Energy Efficiency Action Plans (NEEAPs) due by 30 April 2014. Some Member States could already report on achieved savings for the previous year (2014) in their 2015 Annual Report. A number of Member States have also submitted updated Article 7 notifications. The Commission has sought further information from Member States through the structured dialogue on certain elements which were not provided for or not properly addressed in their notifications on Article 7. Baseline situation The requirement for energy efficiency obligation schemes or an equivalent alternative delivering a binding quantity of energy savings is a new element introduced under the EED to strengthen the achievement of the EU headline 2020 target of 20 % - since the mid-term analysis of Directive 2006/32/EC showed that the existing framework in place and efforts by Member States were not sufficient to achieve the EU energy savings objective by 2020. Article 7 of the EED builds on provisions of a voluntary nature in Article 6 of the former ESD (see below the intervention logic of Article7). Expected Results/Impacts: Achieved energy savings that contribute to the 2020 EE target; Reduced energy bills for EU citizens, energy costs for enterprises Reduced GHG emissions and reduced gas imports; Reduced resource use for energy extraction, transformation, transportation and use; Jobs (created and retained) in the renovation, energy services sectors; Benefits to health and environment, More efficient industrial processes; Consumer awareness of energy efficiency activities and impact; New business, financing models, competitiveness, growth of SMEs. External Factors: Different starting points in MS and know-how; National and regional transposition and implementation measures; National energy mix and energy markets; Differences in national administrations and enforcement systems; Technological development and innovation; Access to national public and private finance. Energy costs and tariffs setting mechanisms Key obligations for Member States (MS) having alternative measures: Responsibility of each entrusted, participating party or implementing public authority should be defined; Energy savings are calculated using methods and principles in line with Annex V (1) (2) and (3); An annual report of savings achieved is provided by participating parties and made publicly available; Monitoring of the results is ensured; measures are envisaged if the progress is not satisfactory; A control system is put in place that includes independent verification of a statistically significant proportion of the measures; Data on the annual trend of energy savings are published annually; To ensure no double counting of energy savings is made in case of overlaps between the actions; To put in place penalties applicable in case of non-compliance. Key obligations for Member States (MS) having an EEOS: To designate, on the basis of objective and non-discriminatory criteria, obligated parties amongst energy distributors and/or retail energy sales companies operating in its territory; To ensure that the savings are calculated in accordance with points (1) and (2) of Annex V; To put in place measurement, control and verification systems and ensure that verification of energy savings have been done independently of the obligated parties; To publish annually the savings achieved by each obligated party, or each sub-category of obligated party, and in total under the scheme; To ensure that when the impact of policy measures or individual actions overlaps, no double counting of energy savings is made. To put in place penalties applicable in case of non-compliance. Objective of Article 7: Each Member State shall set up an energy efficiency obligation scheme (EEOS). That scheme shall ensure that energy distributors and/or retail energy sales companies that are designated as obligated parties under paragraph 4 operating in each Member State’s territory achieve a cumulative end-use energy savings target by 31 December 2020 (new savings of 1.5 % annually), without prejudice to paragraph 2. As an alternative to setting up the EEOS, Member States may opt to take alternative policy measures to achieve the same amount of energy savings among final customers or combine the EEOS with alternative measures.

The impact assessment of the EED concluded that energy saving obligations for utilities were an effective instrument performing well already in five Member States (France, Belgium (Flanders region), Denmark, Italy, and the UK) to save energy and also bring other direct and indirect benefits to the consumers, for instance addressing energy poverty (in the UK and France). On the basis of that analysis, energy efficiency obligation schemes were proposed as a binding measure under the EED (set at the level of 1.5 % annual savings of the final energy sales) with a number of flexibilities introduced during the proposal's negotiation so that national situations and specific energy market conditions could be taken into account. The same impact assessment estimated that this instrument (energy efficiency obligation schemes and alternative measures) would generate 108 – 118 Mtoe savings in primary energy in 2020 provided Member States fully apply the rate of 1.5 % (without taking into account the possible exemptions under paragraph 2). As stated above, the Commission services have estimated that the proposal in its adopted form would deliver 85 Mtoe of savings in primary energy by the same date. 2.2Evaluation questions The main evaluation questions included in the Evaluation Roadmap are presented below: Effectiveness: To what extent have the measures referred to in Article 7 achieved their objectives? What main factors, in particular related to the national implementation of Article 7 of EED, have positively influenced, or prevented, the achievement of the objectives? What are stakeholders and/or citizens' expectations for the EU role to ensure that the objectives related to Article 7 are achieved?

Efficiency To what extent are the costs involved justified, given the changes/effects which have been so far achieved? What factors influenced the efficiency with which the achievements observed were attained? Is there potential to simplify and deliver the objectives of Article 7 more efficiently? To what extent has the intervention been cost effective? Relevance To what extent is the intervention still relevant? To what extent have the original objectives proven to have been appropriate for the intervention in question? How well do the (original) objectives (still) correspond to the needs within the EU? Coherence Do the provisions contained in Article 7 contradict or complement other EU interventions with similar objectives? To what extent are the provisions contained in Article 7 internally coherent or are there possible overlaps with other relevant EU legislation? EU added value What has been the EU-added value of Article 7, and do the issues addressed continue requiring action at EU level? Why would the objectives of Article 7 be better achieved by EU action? 2.3Method Taking into account the requirement to report to the European Parliament and the Council on the implementation of Article 7 by 30 June 2016, the process was launched at the end of 2014, when the Commission commissioned a study on evaluating the implementation of Article 7 of the EED and the analysis is supported by other external studies carried out for assessing the Member States' notifications. The analysis of this report is based on information notified by Member States during the time period from December 2013 until October 2015 (some parts of analysis cover only the period until 1 May 2015). Most of the data contained in the notifications are based on estimated energy savings (for the national measures and methodologies put in place or foreseen to be put in place). This evaluation also looks at the quantification of the impact of measures notified under Article 7 and how the impact of these measures contributes to the EU energy efficiency target of 2020 and initial assumptions of the potential share of savings stemming from Article 7 towards the 2030 target, if Article 7 were to be extended beyond the present end date of 2020. Given the recent implementation and transposition of the EED, the deadline for which was on 5 June 2014, and given the fact that Member States have notified estimated energy savings for measures under Article 7, the evaluation faces data limitations related to the energy savings actually achieved – and verified by the Member States for the measures notified. More concrete results of the implementation will become available as of 2016 as the Member States submit their Annual Reports under Article 24(1). This will allow an assessment of whether the energy savings are being delivered in line with expectations notified in Member States' plans. To the extent that it is available, this information will be integrated in the impact assessment.

For the purposes of this evaluation and to comply with the requirement of Article 24(9), an internet-based public consultation took place from 4 November 2015 until 29 January 2016 to gather the views of the general public, industry, obligated parties, stakeholders in general and other market actors concerned as regards the implementation of Article 7 of the EED (for more detail, see Annex 3). Implementation state of play Overall progress In order to calculate the required amount of savings to be achieved by 2020, which has to be equivalent to achieving new savings each year of 1.5 % from 1 January 2014 to 31 December 2020, Member States had to establish the baseline – energy sales averaged over the three-year period, prior to January 2013 (for 2010-2012). Energy used by transport may be fully or partly excluded from the baseline. This possibility was fully used by all Member States except Sweden. These adjustments resulted in a baseline that was around 33 % lower – 723.6 Mtoe - than it would have been if the full amount of energy consumption would have been taken into account in the calculation (1 080.4 Mtoe), see Table 2. On the basis of the established baseline, each Member State had to calculate the required amount of cumulative energy savings (of 1.5 % per year) to be achieved over the obligation period from 1st January 2014 to 31 December 2020. As regards the use of the four exemptions allowed under paragraph 2 of Article 7 of the EED, 21 Member States applied the "slow start" option (a) which allows the use of lower rates in the first years of the obligation period. 15 Member States used option (b) by excluding all or part of the sales of ETS industries, 5 Member States used option (c) by counting towards their target savings achieved in the energy supply and transmission sector. 13 Member States used option (d) by counting towards the target savings from actions implemented between 31 December 2008 which will continue have an impact in 2020 (see Table 2).

Member State Adjusted baseline (ktoe) % exemptions used Exemptions used (Article 7.2) (a) (b) (c ) (d) Austria 16,508 25 % y Belgium 21,940 25 % y y y Bulgaria 6,167 25 % y y Croatia 4,112 25 % y y Cyprus 767 25 % y y Czech Republic 14,491 25 % y y Denmark 10,113 3 % y Estonia 1,938 25 % y y y Finland 13,373 25 % y y y France 97,060 25 % y y Germany 133,324 25 % y Greece 10,580 25 % y y Hungary 11,675 25 % y y y Ireland 6,873 25 % y y Italy 80,961 25 % y y Latvia 2,702 25 % y y Lithuania 3,188 25 % y y y Luxembourg 1,636 25 % y y Malta 179 25 % y y Netherlands 36,591 25 % y y Poland 47,040 25 % y y Portugal 8,038 0 % n/a n/a n/a n/a Romania 17,495 21 % y Slovakia 7,252 25 % y y Slovenia 2,999 25 % y y Spain 50,727 25 % y y Sweden 27,438 21 % y UK 88,392 25 % y y Total 723,559 21 15 5 13 * Not specified by all Member States As a result, the sum of notified cumulative targets for all Member States reached 230.2 Mtoe (see Table 3 ). This amounts to about 31.8 % of the sum of the adjusted baselines . The table also lists the savings expected from the policy measures notified per Member State which for some countries differs from the savings target. Member State Notified target (ktoe) Notified sum of expected savings (ktoe) Percentage to be delivered by EEOS (%) Austria 5,200 9,146 42 % Belgium 6,911 7,155 Bulgaria 1,943 * 1,943 100 % Croatia 1,295 1,295 41 % Cyprus 242 243 Czech Republic 4,564 5,170 Denmark 4,130 4,130 100 % Estonia 610 611 5 % Finland 4,213 8,819 France 30,574 31,130 87 % Germany 41,989 44,484 Greece 3,333 3,333 Hungary 3,396 * Ireland 2,164 2,243 48 % Italy 25,502 25,830 62 % Latvia 851 851 65 % Lithuania 1,004 1,044 77 % Luxembourg 515 515 100 % Malta 56 67 14 % Netherlands 11,512 11,270** Poland 14,818 14,818 100 % Portugal 3,376 3,408 Romania 5,817 5,863 Slovakia 2,284 2,287 Slovenia 945 945 33 % Spain 15,979 14,361 44 % Sweden 9,114 11,513 UK 27,859 37,799 21 % Total 230,195 250,274 34 % * Hungary did not yet notify savings for its policy measures, Bulgaria did not yet notify its savings target; ** The Netherlands notified ranges of savings for (groups of) policy measures. Policy measures Article 7 allows flexibility for Member States in terms of selecting the policy mix to achieve the required amount of savings. A great variety of alternative measures in addition to the energy efficiency obligation schemes were notified by Member States under Article 7 (resulting in total of 477 measures). The highest amount of savings (34 % or 86.1 Mtoe) is expected to come from energy efficiency obligations schemes (EEOSs), which are the default instrument of Article 7, notified by sixteen Member States, see figure 2. Four Member States have chosen to achieve the required savings solely with this instrument and twelve in combination with alternative measures. Another twelve Member States are to achieve savings only with alternative measures (see Table 4).



Energy efficicncy obligation scheme Energy Efficiency National Fund (a) Energy or CO2 taxes (b) Financing schemes or fiscal incentives (including grants) (c) Regulations or voluntary agreements (d) Standards and norms mandatory and applicable in MS under EU law (e) Energy labelling schemes (f) Training and education in reducing end-use energy consumption i) Any other policy measures, and/or category not clear Total number of policy measures Austria 1 0 1 4 1 1 0 0 1 9 Belgium 0 1 0 14 4 3 0 0 0 22 Bulgaria 1 0 0 0 0 0 0 0 0 1 Croatia 1 0 0 9 0 0 0 1 0 11 Cyprus 0 0 0 3 0 0 0 0 2 5 Czech Republic 0 0 0 23 0 0 0 0 0 23 Denmark 1 0 0 0 0 0 0 0 0 1 Estonia 1 0 1 1 0 0 0 0 0 3 Finland 0 0 1 3 2 1 0 0 1 8 France 1 0 0 1 0 0 0 1 0 3 Germany 0 1 2 26 3 0 1 13 66 112 Greece 0 0 0 17 1 1 0 1 0 20 Hungary 0 0 0 3 0 0 0 0 0 3 Ireland 1 0 0 2 0 4 0 1 2 10 Italy 1 0 0 2 0 0 0 0 0 3 Latvia 1 0 0 4 1 0 0 0 1 7 Lithuania 1 0 0 1 0 7 1 3 2 15 Luxembourg 1 0 0 0 0 0 0 0 0 1 Malta 1* 0 0 12 19 0 0 0 0 35* Netherlands 0 0 2 3 4 3 1 1 15 29 Poland 1 0 0 0 0 0 0 0 0 1 Portugal 0 0 0 2 3 2 3 1 13 24 Romania 0 0 0 18 1 0 0 2 7 28 Slovakia 0 0 0 21 1 0 0 0 44 66 Slovenia 1 1 0 0 0 0 0 0 0 2 Spain 1 1 1 9 0 0 0 2 0 14 Sweden 0 0 1 0 0 0 0 0 0 1 UK 3** 0 1 5 6 3 0 0 2 20 Total [number of measures] 21 4 10 183 46 25 6 26 156 477 Total [number of MS] 16 4 8 22 12 9 4 10 12 28 * Malta notified 4 measures labelled as EEOS (which are individually included in the total of 35 measures for Malta). In practice these are four separate measures that form part of a single obligation scheme, so this represents just one policy measure. This is recorded as a single EEOS, but as 4 measures in the total column; ** The UK notified three EEOS. Two of the schemes ran from 2010-2012 and are now expired, so only one scheme is planned to be operational for the 2014 to 2020 commitment period. Other major policy measures in terms of the amount of expected energy savings are financing schemes and fiscal incentives (19 % or 49.0 Mtoe) followed by energy and CO2 tax measures (15 % or 34.4 Mtoe) and regulations and voluntary agreements (11 % or 27.1 Mtoe). These four types of measures are together expected to deliver 79 % of the cumulative savings (see Figure 5 ). More detailed information on major policy measures notified under Article 7, containing examples and best practice is provided in four case studies annexed to the Evaluation Study. The sum of the notified planned savings is 250.3 Mtoe, which is 9 % higher than the sum of the notified targets (see Table 3 ). As regards the sectoral split of notified savings, most of the savings are expected to come from measures targeting the buildings sector (42 % or 104.4 Mtoe). It is expected that 8 % or 18.9 Mtoe of savings will be generated from measures targeting specifically industry, followed by 6 % or 15.7 Mtoe from measures targeting the transport sector. The rest of the savings (44 % or 111.3 Mtoe) is expected to come from cross-cutting measures (e.g. taxes, building regulations applying to domestic and non-domestic buildings, financing incentives applying to multiple sectors) – see Figure 4 . Source: Ricardo AEA/ CE Delft Source: Ricardo AEA/ CE Delft According to findings of the analysis, it is important to note that around 69 % of savings notified could be qualified as fully eligible under Article 7, complying with the objective to achieve end-use energy efficiency improvements. The rest of the savings were qualified as either partly (25 %) or fully (6 %) not compliant with the overall objective of Article 7, as they mainly targeted other objectives such as addressing the traffic congestion or large scale renewables deployment. Analysis points out that eligibility under Article 7 needs to be clarified in the context of the existing EED Review to see how this fits with the overall energy and climate policy framework objectives while avoiding overlaps and ensuring consistency and sound accounting of savings claimed. It is true that Article 7 does not provide a concrete definition of what is an 'eligible' energy saving measure, although the eligibility criterion is referred to in Article 7(1) which underlines the achievement of the "end-use energy savings target" so that the primary objective of the introduced measures should be end-use energy savings. Moreover, Article 2(18) and (19) of the EED specify the definitions of 'policy measure' and 'individual action'. A policy measure is a regulatory, financial fiscal voluntary or information provision instrument formally established and implemented in a Member State and an 'individual action' is an action that leads to verifiable and measurable or estimable energy efficiency improvement, as a result of a policy measure (Article 2(19)). The Guidance provides further explanation of how these definitions contained in Article 2 should be applied and which policy measures can be used for Article 7 purposes. To this end, the Guidance points out that measures that are not primarily intended to support energy efficiency policy objectives or policies that do not trigger end-use energy savings amongst final consumers, are not eligible. Examples of non-eligible measures are also provided such as construction of new roads to ease traffic congestion, various energy grid network charges or feed-in tariffs. Some Member States have notified measures which do not target end-use energy savings, for example, CHP technologies, feed-in tariffs, or construction of metro lines. The assessment of the implementation so far and the dialogue with Member States has made clear that problems with understanding what is an eligible measure in respect of which the Member States can claim energy savings for the purposes of Article 7 is linked also to issues with the calculation method including how the additionality and materiality requirements are addressed. Some of the policies claimed by Member States (for example in the transport sector related to fast speed trains, transport infrastructure) might also achieve the end-use energy savings even if that is not their primary objective. If they also fulfil the additionality and materiality criteria then Member States should perhaps be allowed to claim the savings resulting from them. To this end, the Commission has clarified the use of measures promoting the deployment of renewable energy which may qualify if these measures do actually result, at least in part, in end use savings, and if the Member State can prove those end-use savings in line with the requirements of Annex V. Against this background, the eligibility concept needs to be further defined and explained more concretely, to ensure also consistency with other EU climate and energy policies.

The results of the public consultation reveal that a majority of stakeholders (70 %) consider that the scope of eligible measures allowed under Article 7 should be clarified, and 67 % of these stated that the scope of eligible measures should be even expanded. Calculation methodologies Member States had to develop methodologies in line with the requirements of Annex V ensuring that the calculation of the impact of measures takes into account the principles of additionality, materiality and also lifetimes of measures. The central purpose of Article 7 is to introduce measures that trigger market-based end-use energy savings which are additional to the existing EU energy efficiency framework Member States therefore had to define in their methodologies how they have taken this key element – the additionality principle - into account. Member States are using different calculation methodologies among the options in Annex V(1). The most used calculation method is the deemed savings method (used by 17 MS). This is also widely used for EEO schemes. Metered and scaled savings calculation methods were used by 9 MS. Some Member States (7) have indicated in their notifications that for calculating the impact they have applied bottom-up calculation methods developed for the purposes of Annex IV of the ESD. The level of credibility of notified savings depends on how the calculation has been done at national level and how accurately the requirements of Article 7 and Annex V have been taken into account. Studies on the implementation of Article 7 suggest that Member States find it challenging to work out how to apply certain key requirements of Annex V, notably additionality and materiality – and this impression has been reinforced in dialogue between the Commission services and Member States. The risk of double counting is also one of the issues which could be better addressed by Member States given the wide policy mix introduced under Article 7. These three elements are therefore analysed in more in detail below. 2.3.1.1Additionality Additionality is a key principle of Article 7, as it requires that Member States count only those savings that are triggered by policy measures which are additional to national measures that they have to implement under other EU legal obligations or that they would have implemented also in the absence of the EED. Provisions of Article 7 and Annex V define in more detail how this is to work in relation to existing policy measures adopted at EU level. The guidance note further explains the principle “The qualification related to 'mandatory and applicable in Member States under Union law' means that, when concrete energy performance levels or labelling schemes are laid down in EU legislation, then the energy savings stemming from individual actions that result from automatic transposition of these levels cannot be counted as an alternative policy measure. It is only if the nationally established levels are more ambitious than those required at EU level – as far as this is legally possible – that the difference between the mandatory EU levels and the concretely established levels can be counted”. Analysis of the notifications and discussions with Member States reveal that this requirement has been understood or interpreted differently by Member States, very often leading to incorrect application, especially concerning the savings calculated from national building codes. This conclusion is confirmed in the report of the technical workshop on Calculation methodologies for Article 7 organised by the Commission's Joint Research Centre in June 2015. It is also partly linked to the fact that EED does not provide a concrete definition of the "additionality" concept, resulting in the different interpretations by Member States. This also had implications for the distinction between the notions of additionality and materiality. More specifically as regards the application of additionality principle in relation to Article 7(9)(d) which stipulates that Member States can count savings from standards and norms aimed at improving the energy efficiency of products and services, including buildings and vehicles, except where these are mandatory and applicable in Member States under EU law, savings generated by major renovations or construction of new buildings can be counted only where they exceed cost-optimal levels of energy performances established by Member States under the EPBD. A number of Member States did not provide sufficient information in their notifications on their calculation methodologies whether and how they have taken into account cost-optimal levels as the reference consumption baseline in cases they have claimed savings generated by major renovations or construction of new buildings. This issue is also reflected in the study commissioned by the Commission (see Figure 6 ), which shows that less than half (43 %) of the savings notified have, at most, very small issues with additionality, whereas 24 % of the savings have minor issues and 14 % have major issues. For the remaining 19 %, the situation remains unclear (and is being explored between the Commission services and the Member States by means of a structured dialogue. Source: Ricardo AEA/ CE Delft The structured dialogue with Member States allowed some of the information gaps as regards the application of the additionality principle to be reduced, even though for a large of number of policy measures this should still be further explored with the Member States, as for example, only 6 Member States have specified how they plan to address additionality in the savings calculations. On the other hand, 6 Member States provided no information or almost no information on additionality, and further 13 Member States only provided simply the statement that additionality to minimum EU requirements will be ensured (without explaining how it is ensured). In addition, only 4 Member States mentioned in their notifications that free-riders will be taken into account, other providing no information. To this end, the evaluation study concluded that further clarification and guidance as regards the application of "additionality" should be provided given that the policy framework has further developed over the last years. 2.3.1.2Materiality The EED requires that new savings of 1.5 % are achieved each year. The activities of the obligated or participating parties must contribute to the achievement of the specific individual action which is being counted for the purposes of Article 7, and thus actions that would have happened anyway (thanks to automatic rolling out of EU legislation, or autonomous improvements because of, for example, market forces or technological developments) are not taken into account. This provision provides confidence that the energy savings have actually been triggered as a result of policy interventions. It should also reduce the effect of free-riding.

As stated in the Guidance note, the application of the materiality principle is one of the steps necessary to ensure respect for the additionality principle. It may contribute to enforcing the additionality principle by requiring that actors – obligated or participating parties involved in the measure's implementation - have materially contributed to the generation of the claimed savings. According to the assessment, only half of the Member States have so far provided information on materiality. Lack of information therefore limits the overall assessment of how effectively the materiality requirement has been applied in practice. The evaluation study pointed out challenges related to the application of the principle of materiality. Even though the requirement to demonstrate materiality refers to all measures (except for energy and CO2 taxes), the relevance of the materiality criterion differs between types of measure. Materiality could be perceived as most relevant for financing schemes and instruments, fiscal incentives, energy labelling schemes, and training and education programmes; however, the approach to demonstrate materiality may differ for each measure type. The fact that Member States had to define themselves the test of materiality for each individual action seemed to pose some challenges in interpreting this requirement. For instance, for financing schemes the amount of subsidy was often indicated by Member States to demonstrate materiality even though this factor alone does not guarantee that subsidies have actually influenced end-users investment decisions. The role played by involved actors in the implemented actions may in principle be proved without a subsidy as a benchmark whereby standardised actions could be an important materiality indicator (e.g. creation of installation standards for products, energy advice and energy audits when followed by the actual implementation of actions). It must be noted that it is not obvious what evidence Member States must provide to the Commission to prove that a particular action has resulted in the savings claimed, and this is particularly difficult with "behavioural" type measures such as information campaigns. The study on evaluating the implementation of Article 7 suggests that the "materiality test" may even not be relevant for certain measures such as regulations and voluntary agreements, or standards and norms, assuming the enforcement and compliance is strong for these measures. This should be further explored in the context of the post 2020 framework in case the commitment period under Article 7 is extended. 2.3.1.3Risk of double counting Member States are required to ensure that when the impact of policy measures or individual actions overlaps, no double counting of energy savings is made. It is necessary for Member States to address this as part of their monitoring and verification of savings required under Article 7. Given the large variety of instruments notified by Member States and moreover, given the high likelihood of policy overlaps from the use of both the obligation schemes and alternative measures (for instance interaction between energy taxation and subsidy to households to replace windows or space heaters), it is crucial to address these possible risks of double counting so that an impact is not counted twice. Whilst building renovation measures have to be at the level set under the EPBD, as that Directive does not require any particular number of renovations, no consequent savings have to be reported under it. There is therefore no risk of double counting of savings in relation to energy savings due to building renovation measures claimed under Article 7 of the EED. Most Member States indicated in their notifications that they were aware of the need to avoid double counting due to possible policy overlap, but did not provide enough detail on how they ensure this apart from indication by a majority of Member States that a database could be seen as an effective tool to tackle this issue. For instance, some Member States have stated in their notifications that savings will be attributed only to one of the policy instruments implemented and for the other policy instrument(s) savings are not taken into account at all (e.g. Denmark, Sweden). Other Member States aim to address the risk of double counting with the help of a self-reporting database (e.g. Austria) to be used for all measures. According to the available information 16 Member States intend using a database as an effective tool to detect possible overlaps. The results of the assessment depicted in Figure 7 show that 81 % of the savings are assessed as having no or only very small issues in relation to risk of double counting, and only 1 % of the savings notified have major issues. For 12 % of savings there are minor issues and for 6 % of savings it is unclear. It is expected that the annual reports as of 2016 will provide more information on how this aspect is actually addressed as the savings achieved will be reported. Source: Ricardo AEA/ CE Delft Monitoring and verification of savings Almost all Member States have established Monitoring and Verification (M&V) systems to check the reported energy savings for the EEOS and alternative measures. As regards these systems, slightly different requirements are laid down in the Directive for the EEOS and alternative measures. a) As regards Energy efficiency obligation schemes, Member States need to put in place measurement, control and verification M&V systems under which a significant proportion and representative sample of energy efficiency improvement measures put in place by obligated parties are verified, and this verification should be done independently from the obligated parties. b) For alternative measures, Member States are required to ensure monitoring of results and put in place a control system that includes independent verification of a statistically significant proportion of efficiency improvement measures. 2.3.1.4Energy efficiency obligation schemes

For EEOSs, thirteen Member States have ensured that the authority responsible for measurement and verification is fully independent, two Member States are still in the process of establishing their M&V systems and independence will need to be reviewed once the systems are implemented. As regards the statistically representative sample required to verify the savings claimed, ten Member States have confirmed that such a sample will be applied. This is not fully evident for four Member States and neither it is clear for two Member States which are in the process of establishing the measuring and verification systems. It should be noted that there is no definition in the Directive of what is a 'statistically representative sample'. Seven Member States have confirmed that audit protocols are in place, even though two Member States did not state whether or not audit protocols have been implemented yet, five Member States do not provide sufficient detail that would allow concluding that audit protocols are in place. Member States are obliged to put in place effective, proportionate and dissuasive penalties for breaches of the national provisions that implement the EED, including Article 7. Eleven Member States that have EEOS have penalties in place for non-compliance and two Member States are in the process of determining their penalty regimes. Three Member States have no penalties in place yet. 2.3.1.5Alternative measures All but two Member States have established M&V systems for the purpose of monitoring the performance of alternative measures and ensuring proper control of saving claimed. For alternative measures, the use of statistically representative samples is not clear for six Member States as sampling is mentioned but not explicitly that a statistically representative sample will be analysed. Eight Member States did not state whether or not a statistically representative sample is checked and two Member States do not state that this is the case for all policy measures. Two countries explicitly state that they do not intend to use a statistically representative sample. According to the available information, audit protocols are established for all policy measures only in eight Member States that notified alternative approach. Three Member States do not specify audit protocols for all alternative measures and in two cases it is not clear whether audit protocols are in place or not. Audit protocols are not addressed by nine Member States. Only two Member States confirm that penalties are in place for all alternative policy measures and for 14 Member States it is not clear whether penalties have been put in place for alternative measures. There is a need under both types of instruments (EEOS and alternative measures) to ensure annual reporting which should be made publicly available. More specific reporting provisions are defined for the EEOS (in line with Article 7(8)) whereby Member States can request obligated parties to provide aggregated statistical information on their final customers and also data on consumption or customer segmentation). Similarly for alternative measures (in line with Article 7(10)(g) and (j)) participating parties should prepare an annual report on savings achieved and ensure that the trend of achieved savings is published once a year. Member States' notifications revealed that a majority of Member States have more than one measurement/monitoring and verification system in place for alternative measures (or in the case of combination of EEOS and alternative measures) which varies depending on the measure type, whereas for EEOSs this is usually the responsibility of a single institution. Only five Member States intend to give the same institution responsibility for implementing, monitoring, control and verification of savings for both an EEO scheme and alternative measures. For example, in nine Member States different actors are responsible for independent verification of energy efficiency improvements measures depending on the measure, whereas for three Member States verification of savings is planned to be done by a third party, and final responsibility lies with either a ministry, energy agency or regulator (FI). As regards the monitoring and verification tools used, a majority of Member States have established a IT-based tool or intend to establish one to collect the data, track the implementation and impact of energy efficiency measures and carry out the verification of projects according to the established control system including carrying out the random checks. According to Member States' experience, clear and transparent rules that are communicated to all actors involved are a prerequisite for lowering the administrative burden in monitoring of the energy efficiency measures under Article 7. A database is perceived by a majority of Member States as an effective tool for addressing the risks of double counting in case of potential overlaps between the measures which can also occur for a single policy measure when several actors (e.g. funding institutions) claim the savings of this measure and 16 Member States intend using the database established for monitoring energy efficiency measures under Article 7. Due to the fact that the obligation period started only on 1st January 2014, and only a few Member States reported on the achieved savings for 2014 in their 2015 annual reports, there is limited evidence available how the specific monitoring and verification provisions have worked so far for a majority of Member States, especially for the alternative measures. Nevertheless, the fact that Member States have put in place appropriate Monitoring and Verification systems suggests that the achievement of savings will be monitored and verified to ensure credibility of savings reported. The credibility of energy savings claimed will depend on how correctly the monitoring and verification is done at national level. 2.4Answers to the evaluation questions This chapter will assess each evaluation criteria on the basis of the relevant evaluation questions listed in chapter 4.2 under each criteria. Effectiveness To what extent have the measures referred to in Article 7 achieved their objectives? The overall objective of Article 7 is that it requires each Member State to achieve new savings of 1.5 % annually by establishing an energy efficiency obligation scheme (EEOS) by putting an obligation to energy distributors and/or retail energy sales companies to achieve a cumulative end-use energy savings target by 31 December 2020. It could be done also through alternative policy measures that should achieve the same amount of energy savings among final customers. It is too early to conclude whether Member States will achieve the savings requirement because the final date by when the savings should be achieved is 31 December 2020. The reporting requirement laid down in the Directive (Article 24(1)) will allow trends and savings to be followed on an annual basis, but until 2020 the final result cannot be calculated. Only 4 Member States reported on the achieved energy savings for 2014 in the annual reports required under Article 24(1) that had to be submitted by 30 April 2015.

Comparing the notified savings (estimated for 2020 alone) with the estimations made in the (2011) impact assessment of the EED, the sum of energy savings from the notified policy measures is only 1 % lower than the originally expected amount. A slightly higher shortfall is observed when comparing the notified targets with the expected amount which is 10 % lower, see Figure 8 below. To note, this comparison should serve as a theoretical reference point and not as the benchmark to be attained, as the assumed savings in the 2011 impact assessment (including the corrected figure of 84.8 Mtoe) were based on a different baseline and by taking into account the average savings target of the existing energy efficiency obligation schemes of that time. Source: Ricardo AEA/ CE Delft Analysis of the reported estimations from national notifications and ongoing dialogue with Member states suggest that Member States would achieve the required savings by 2020 given the commitments made by putting in place the necessary measures. On the other hand, this achievement depends on whether the requirements of Article 7 and Annex V will be properly complied with. This analysis is provided further in the report. What main factors, in particular related to the national implementation of Article 7 of EED, have positively influenced, or prevented, the achievement of the objectives? The Commission services are assessing how Member States have transposed the EED into their national legislation. As regards Article 7, some Member States have used legal measures, in particular in relation to requirements on obligated parties under EEOS as well as putting specific measures in place. Other Member States however have transposed Article 7 and the savings requirements with non-legislative measures - policy documents and specific measures. Each Member State has set out their approach in detail in the National Energy Efficiency Plans notified to the Commission in 2014 which will be updated in 2017. Similarly, Member States have generally put in place complex measurement, verification and control systems to ensure that the reported energy savings by involved parties are correctly accounted for in the measures and individual actions implemented, including ensuring additionality of savings as compared to existing EU policies and avoiding overlaps with other policies, especially in the case of savings stemming from alternative measures.Monitoring and control systems for the alternative measures have been developed all relevant MS except two. However, Article 7 will deliver energy savings by 2020 on the scale anticipated if Member States will fully and correctly implement the requirements of Article 7 and Annex V, notably the additionality and materiality principles referred to in paragraph 9(d)(e) and Annex V(2)(3). Therefore, it is of utmost importance that Member States ensure the enforcement of the necessary provisos and are committed to the achievement of required amount of savings as notified under Article 7(1). Article 7 complements the implementation of other aspects of the EU's energy efficiency policy. For example, the EPBD driving an increase in the depth of renovation of existing buildings, and is complemented by Article 7 which serves to increase their rate. Almost half of the savings notified under Article 7 are in the buildings sector and it can be observed that the rate of renovation is accelerated due to the specific measures (i.e. financing incentives and programmes) introduced in Member States to stimulate the renovation of residential and tertiary buildings (see Figure 9 ). Source: Ricardo AEA/ CE Delft What are stakeholders and/or citizens' expectations for the EU role to ensure that the objectives related to Article 7 are achieved? The stakeholder consultation revealed that 68 % of respondents consider that Article 7 is an effective instrument to achieve final energy savings, versus 32 % who opposed this view. 63 % of stakeholders stated that Article 7 should continue beyond 2020, versus 28 % opposing this view, and 9 % did not have a view on this. 70 % of respondents in favor of the extension of Article 7 consider that the scope of eligible measures should be clarified further; of these, 67 % stated that eligible measures should be expanded. Respondents also pointed out the main barriers related to the implementation of the existing provisions Article 7 which are amongst others 'limited timeframe (2014-2020) that makes it hard to attract investment for long term measures' (115); a 'high administrative burden' associated with certain measures (113) and 'ensuring sound and independent monitoring and verification of energy savings' (104). As regards the specific EU role, stakeholders shared the view that the EU should monitor the implementation of Article 7 and its progress; ensure compliance across the EU; provide guidance, for example regarding savings calculation methodologies (Annex V); facilitate overall transparency and comparability; set clear energy efficiency targets; provide funding for energy efficiency initiatives; and support the development of financing products that promote energy efficiency. 2.4.1.1Energy efficiency obligation schemes Given that the EEOS is the default instrument under Article 7, it is important to specifically analyse the effectiveness of this part of the policy. In fact, 34 % of the savings will be achieved by this instrument by 2020, which was notified by 16 Member States (with 4 Member States using it as the only instrument to achieve savings). Evidence from third countries (such as the United States and Australia) shows that energy efficiency obligation schemes have been an effective instrument to efficiently reduce energy consumption (at a low cost in terms of administrative burden) by putting obligations on energy suppliers and distributors. In the EU, Belgium (Flanders region), Denmark, Italy, France, and United Kingdom had already implemented this instrument before the EED, and analyses of the impact of these schemes demonstrated that this is a cost-effective policy to achieve the required energy savings. In fact, evidence suggests the targets put on the obligated parties in these countries have risen significantly over time and have continued to be met by these parties. These Member States also have helped the other countries with their expertise by organising and taking part in technical workshops and seminars to share their knowledge.

The Table 5 demonstrates the impact of EEOSs on final energy consumption in selected EU Member States and in Vermont and California in the U.S. Time period Final energy savings per year (ktoe) Reduction of final energy consumption per year Sector UK 2008-2012 237 0.5 % household sector Denmark 2015 291 4.2 % all sectors France 2011-2013 377 0.4 % all sectors Italy 2015 500 0.4 % all sectors Austria 2015 136 0.9 % household and industry sectors Vermont, U.S. 2012-2014 10 1.7 % all sectors except transport California, U.S. 2010-2012 384 1 % all sectors except transport Source: Regulatory Assistance Project To help disseminate best practice and guidance on EEOS and alternative measures an EU observatory has been established under the ENSPOL project financed under the Intelligent Energy Europe programme. Four Member States have designed their obligation schemes to tackle also energy poverty. Evidence shows that this has proven to work effectively. For example, in the UK, the existing ECO requires that about 1/3 of the total energy savings are delivered in the poorest areas (25 % lowest areas on the Index of Multiple Deprivation) and £3.7 bn of lifetime savings should be achieved within households who receive certain state benefits. In Ireland it is required that obligated parties achieve 5 % of savings among households in fuel poverty. 2.4.1.2Alternative measures As alternative to or addition to an energy efficiency obligation scheme, Member States can opt for other measures as long as the amount of savings required under Article 7(1) is achieved by 2020. 12 Member States have chosen to implement only alternative measures; another 12 Member States have opted for the mixed approach (EEO scheme in combination with alternative measures). As for the obligation schemes, the default instrument in Article 7, Member States have put in place appropriate monitoring, control and verification systems to ensure that the reported energy savings are credible and in line with the requirements of Article 7 and