Communication from the Commission to the European Parliament pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union concerning the Council's position at first reading on the adoption of an amended proposal for a Directive of the European Parliament and of the Council on energy performance of buildings (recast)
Date: 2010-04-15
Institutions: European Commission
Subjects: European standard, building, building technique, energy consumption, energy saving, technical regulations

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EUROPEAN COMMISSION 

Brussels, 15.4.2010 
COM(2010)165 final 

2008/0223 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union 
concerning the 

Council's position at first reading on the adoption of an amended proposal for a 
Directive of the European Parliament and of the Council on energy performance of 
buildings (recast) 

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2008/0223 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294 (6) of the Treaty on the Functioning of the European Union 
concerning the 

Council's position at first reading on the adoption of an amended proposal for a 
Directive of the European Parliament and of the Council on energy performance of 
buildings (recast) 

1. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  EP  and  the  Council
(COM(2008)0780 – COD/2008/0223): 

13 November 2008 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

13 May 2009 

Date of the opinion of the Committee of the Regions: 

24 April 2009 

Date of the opinion of the European Parliament, first reading: 

23 April 2009 

Date of adoption of the Council position at first reading: 

14 April 2010 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The aim of the recast of Directive 2002/91/EC of the European Parliament and of the Council 
of  16  December  2002  on  the  energy  performance  of  buildings  ("EPBD")  is  to  clarify  and 
simplify certain provisions, extend the scope and strengthen some of its provisions to improve 
their effectiveness, and to provide for the leading role of the public sector. The objectives and 
principles  of  the  current  Directive  are  retained  and  it  is  still  left  to  Member  States  to 
determine the concrete energy performance requirements. 

3. 

COMMENTS ON THE COUNCIL POSITION at FIRST READING 

3.1. 

General comments on the Council Position 

The  text  of  the  negotiated  Council  Position  is,  in  substance,  in  line  with  the  Commission's 
proposal and therefore can be supported. 

3.2. 

Agreement on Council Position at first reading stage 

The  negotiated  Council  Position  is  the  result  of  inter-institutional  negotiations  in  two  steps. 
The first step covered the substance of the proposal and the second step the adaptation of the 
proposal to the Treaty on the Functioning of the European Union as regards the delegated and 
implementing acts (Arts 290 and 291 TFEU) as well as the legal basis.  

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As  for  the  substance  of  the  proposal,  on  30  November  2009,  the  chairman  of  the  ITRE 
Committee,  Mr  Herbert  Reul,  confirmed  Parliament's  agreement  to  the  text  which  had  been 
agreed at the trilogue on 17 November 2009 and endorsed by Coreper on 20 November 2009. 

As to the adaptation of the proposal to the Treaty on the Functioning of the European Union, 
the  compromise  reached  was  endorsed  by  Coreper  on  24  March  2010  and  confirmed  by 
Parliament's ITRE Committee chairman Mr Reul on 25 March 2010. The negotiated Council 
position was formally adopted by written procedure on 14 April 2010. 

The main subjects of negotiation on which an agreement was reached are as follows: 

Change of legal basis (preamble): due to the entry into force of the Treaty on the Functioning 
of the European Union, the co-legislators agreed to change the legal basis to Article 194 (2) 
TFEU.  A  paragraph  was  added  to  Article  1  underlining  that  the  Directive  sets  minimum 
requirements  that  do  not  prevent  Member  States  from  maintaining  or  introducing  more 
stringent  measures.  The  Commission  agrees  with  these  changes,  which  do  not  modify  the 
applicable decision-making procedure. 
Provisions  on  delegated  and  implementing  acts  (Articles  22  to  26):  the  Directive  delegates 
powers  on  the  Commission  to  adopt  the  comparative  methodology  framework  of  Article  5 
(until 30 June 2011) and to adapt to technical progress (points 3 and 4 of Annex I) for a period 
of  5  years  -automatically  renewed-  following  the  entry  into  force  of  the  Directive.  The 
Parliament and the Council may revoke the delegation of powers at any moment and object to 
the delegated act within the 2 months following the notification, with the possibility of asking 
for an extension of 2 additional months. A Commission statement concerning the notification 
of delegated acts during the recess period of the institutions has been included at the request 
of the Parliament, together with a joint statement of the European Parliament, the Council and 
the Commission declaring that the provisions of this Directive will not constitute a precedent 
on their positions on delegated acts (see Annex I).  

The  Commission  is  also  requested  to  adopt  an  implementing  act,  in  accordance  with  the 
advisory  procedure  of  Article  3  of  the  Decision  1999/468/EC,  to  establish  a  voluntary 
common certification scheme for energy performance of non-residential buildings (Article 10 
(9).  

Cost-optimal  minimum  energy  performance  requirements  and  comparative  methodology 
framework  (Article  5  and  Annex  III):  the  Commission  will  develop  a  comparative 
methodology  for  calculating  energy  performance  cost-optimal  levels  for  buildings.  Member 
States will justify any significant gap and present a plan outlining appropriate steps forward.  
Existing  buildings  (Article  7):  this  provision  was  reinforced  by  requesting  that  all  existing 
buildings  undergoing  major  renovation  meet  energy  performance  requirements  and  that 
energy performance requirements are also set out for building elements.  
Technical  building  systems  (Article  8):  a  new  provision  requires  the  setting  of  energy 
performance requirements for the technical building systems (e.g. heating, hot water, and air-
conditioning systems).  
Nearly  zero  energy  buildings  (Article  9):  a  consensus  emerged  on  the  definition  of  'nearly 
zero  energy  buildings'  and  the  need  for  developing  national  plans  to  increase  their  number. 
Member  States  shall  ensure  that  by  31/12/2018  new  buildings  occupied  and  owned  by  a 
public authority and by 31/12/2020 other new buildings are 'nearly zero energy buildings'.  
Financial  incentives  and  market  barriers  (Article  10):  this  new  article  was  included  to 
highlight  the  importance  of  appropriate  financing.  Member  States  shall  draw  up  a  list  of 

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existing  and  proposed  measures  and  the  Commission  shall  present  an  analysis  of  the  funds 
available. A Commission's statement on financing for energy efficiency in buildings indicates 
its role in supporting the use of financing instruments to achieve an energy-efficient and low 
carbon European building sector (see Annex II).  
Energy  performance  certificates  (Articles  11  to  13):  this  provision  was  reinforced  by 
improving  the  content  of  the  certificates,  by  reinforcing  the  obligation  to  display  the 
certificate  in  public  buildings  and  by  requiring  that  the  performance  indicator  set  on  the 
certificate is indicated in housing advertisements.  
Inspection  of  heating  and  air-conditioning  systems  (Articles  14  to  16)  and  Independent 
experts and control systems (Articles 18 and Annex II): greater flexibility to Member States 
regarding the inspection of air-conditioning systems was coupled with a requirement to ensure 
independent  control  systems  for  certificates  and  reports  on  inspections  of  heating  and  air 
conditioning systems.  
Review  clause  (Article  19):  the  review  clause  was  made  more  specific  by  setting  a  date  to 
evaluate the Directive (01/01/2017).  
Transposition (Article 28): the adoption of transposition measures by the Member States was 
changed to 'two years after the entry into force' of the Directive. The dates of application of 
national  provisions  transposing  most  of  Directive’s  provisions  are  now  'two  years  and  six 
months'  and  'three  years'  after  the  entry  into  force  of  the  Directive.  Additional  time  (until 
31/12/2015) was granted for the application of Article 11(1) and (2) to single rented units.  

4. 

CONCLUSION 

The Council Position meets the aims of the Commission's initial proposal. The Commission 
therefore supports the text. 

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Annex I 

Statement by the European Parliament, the Council and the Commission 

on Article 290 TFEU 

"The European Parliament, the Council and the Commission declare that the provisions of this 
Directive  shall  be  without  prejudice  to  any  future  position  of  the  institutions  as  regards  the 
implementation  of  Article  290  TFEU  or  individual  legislative  acts  containing  such 
provisions." 

Commission Statement 

"The European Commission takes note that except in cases where the legislative act provides 
for  an  urgency  procedure,  the  European  Parliament  and  the  Council  consider  that  the 
notification of delegated acts shall take into account the periods of recess of the institutions 
(winter, summer and European elections), in order to ensure that the European Parliament and 
the  Council  are  able  to  exercise  their  prerogatives  within  the  time  limits  laid  down  in  the 
relevant legislative acts, and is ready to act accordingly." 

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Annex II 

Commission Statement on Financing for Energy Efficiency in Buildings 

"The Commission underlines the crucial role that financing instruments play for a successful 
transformation of the European building sector into an energy-efficient and low carbon one. 
The Commission will continue to encourage Member States to use extensively the available 
funds  under  the  European  Regional  Development  Fund  (currently  up  to  4  %  of  the  total 
national  amounts  of  the  European  Regional  Development  Fund,  representing  an  amount  of 
EUR 8 billion, can be used for increasing energy efficiency and use of renewable energy in 
the  housing  sector,  in  addition  to  the  un-capped  financial  support  already  available  for 
sustainable  energies  in  public  and  commercial/industrial  buildings)  and  will  also  support 
Member States in better use of all available funds and funding that can act as a leverage for 
stimulating investments in energy efficiency.  

In  addition,  the  Commission  will  explore  the  possibility  to  further  develop  all  existing 
initiatives, such as the Smart Cities initiative1 or the use of the Intelligent Energy - Europe II 
budget,  e.g.  for  the  purpose  of  knowledge  sharing  and  technical  assistance  on  the 
establishment of national revolving funds.  

Moreover, the Commission shall prepare an overview and analysis of financing mechanisms 
currently  in  place  in  Member  States  and  take  account  of  the  findings  to  endeavour  to 
disseminate best practice across the EU. 

Finally,  the  Commission,  following  the  analysis  referred  to  in  Article  [9a(4)]  of  Directive 
[2010/XXX/EC], will reflect on possible future development of financial incentives (inter alia 
with regard to the Community instruments referred to for this purpose in Article 9a(4a)) and 
their optimal use for investments in improved energy efficiency of buildings." 

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