Legal provisions of COM(2003)739 - Energy end-use efficiency and energy services

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2003)739 - Energy end-use efficiency and energy services.
document COM(2003)739 EN
date April  5, 2006


CHAPTER I

SUBJECT MATTER AND SCOPE

Article 1

Purpose

The purpose of this Directive is to enhance the cost-effective improvement of energy end-use efficiency in the Member States by:

(a)providing the necessary indicative targets as well as mechanisms, incentives and institutional, financial and legal frameworks to remove existing market barriers and imperfections that impede the efficient end use of energy;

(b)creating the conditions for the development and promotion of a market for energy services and for the delivery of other energy efficiency improvement measures to final consumers.

Article 2

Scope

This Directive shall apply to:

(a)providers of energy efficiency improvement measures, energy distributors, distribution system operators and retail energy sales companies. However, Member States may exclude small distributors, small distribution system operators and small retail energy sales companies from the application of Articles 6 and 13;

(b)final customers. However, this Directive shall not apply to those undertakings involved in categories of activities listed in Annex I to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (13);

(c)the armed forces, only to the extent that its application does not cause any conflict with the nature and primary aim of the activities of the armed forces and with the exception of material used exclusively for military purposes.

Article 3

Definitions

For the purposes of this Directive, the following definitions shall apply:

(a)‘energy’: all forms of commercially available energy, including electricity, natural gas (including liquefied natural gas), liquefied petroleum gas, any fuel for heating and cooling (including district heating and cooling), coal and lignite, peat, transport fuels (excluding aviation and maritime bunker fuels) and biomass as defined in Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (14);

(b)‘energy efficiency’: a ratio between an output of performance, service, goods or energy, and an input of energy;

(c)‘energy efficiency improvement’: an increase in energy end-use efficiency as a result of technological, behavioural and/or economic changes;

(d)‘energy savings’: an amount of saved energy determined by measuring and/or estimating consumption before and after implementation of one or more energy efficiency improvement measures, whilst ensuring normalisation for external conditions that affect energy consumption;

(e)‘energy service’: the physical benefit, utility or good derived from a combination of energy with energy efficient technology and/or with action, which may include the operations, maintenance and control necessary to deliver the service, which is delivered on the basis of a contract and in normal circumstances has proven to lead to verifiable and measurable or estimable energy efficiency improvement and/or primary energy savings;

(f)‘energy efficiency mechanisms’: general instruments used by governments or government bodies to create a supportive framework or incentives for market actors to provide and purchase energy services and other energy efficiency improvement measures;

(g)‘energy efficiency improvement programmes’: activities that focus on groups of final customers and that normally lead to verifiable and measurable or estimable energy efficiency improvement;

(h)‘energy efficiency improvement measures’: all actions that normally lead to verifiable and measurable or estimable energy efficiency improvement;

(i)‘energy service company’ (ESCO): a natural or legal person that delivers energy services and/or other energy efficiency improvement measures in a user's facility or premises, and accepts some degree of financial risk in so doing. The payment for the services delivered is based (either wholly or in part) on the achievement of energy efficiency improvements and on the meeting of the other agreed performance criteria;

(j)‘energy performance contracting’: a contractual arrangement between the beneficiary and the provider (normally an ESCO) of an energy efficiency improvement measure, where investments in that measure are paid for in relation to a contractually agreed level of energy efficiency improvement;

(k)‘third-party financing’: a contractual arrangement involving a third party — in addition to the energy supplier and the beneficiary of the energy efficiency improvement measure — that provides the capital for that measure and charges the beneficiary a fee equivalent to a part of the energy savings achieved as a result of the energy efficiency improvement measure. That third party may or may not be an ESCO;

(l)‘energy audit’: a systematic procedure to obtain adequate knowledge of the existing energy consumption profile of a building or group of buildings, of an industrial operation and/or installation or of a private or public service, identify and quantify cost‐effective energy savings opportunities, and report the findings;

(m)‘financial instruments for energy savings’: all financial instruments such as funds, subsidies, tax rebates, loans, third-party financing, energy performance contracting, guarantee of energy savings contracts, energy outsourcing and other related contracts that are made available to the market place by public or private bodies in order to cover partly or totally the initial project cost for implementing energy efficiency improvement measures;

(n)‘final customer’: a natural or legal person that purchases energy for his own end use;

(o)‘energy distributor’: a natural or legal person responsible for transporting energy with a view to its delivery to final customers and to distribution stations that sell energy to final customers. This definition excludes electricity and natural gas distribution system operators, covered in point (p);

(p)‘distribution system operator’: a natural or legal person responsible for operating, ensuring the maintenance of and, if necessary, developing the distribution system of electricity or natural gas in a given area and, where applicable, its interconnections with other systems, and for ensuring the long term ability of the system to meet reasonable demands for the distribution of electricity or natural gas;

(q)‘retail energy sales company’: a natural or legal person that sells energy to final customers;

(r)‘small distributor, small distribution system operator and small retail energy sales company’: a natural or legal person that distributes or sells energy to final customers, and that distributes or sells less than the equivalent of 75 GWh energy per year or employs fewer than 10 persons or whose annual turnover and/or annual balance sheet total does not exceed EUR 2 000 000;

(s)‘white certificates’: certificates issued by independent certifying bodies confirming the energy savings claims of market actors as a consequence of energy efficiency improvement measures.

CHAPTER II

ENERGY SAVINGS TARGETS

Article 4

General target

1. Member States shall adopt and aim to achieve an overall national indicative energy savings target of 9 % for the ninth year of application of this Directive, to be reached by way of energy services and other energy efficiency improvement measures. Member States shall take cost-effective, practicable and reasonable measures designed to contribute towards achieving this target.

This national indicative energy savings target shall be set and calculated in accordance with the provisions and methodology set out in Annex I. For purposes of comparison of energy savings and for conversion to a comparable unit, the conversion factors set out in Annex II shall apply unless the use of other conversion factors can be justified. Examples of eligible energy efficiency improvement measures are given in Annex III. A general framework for the measurement and verification of energy savings is given in Annex IV. The national energy savings in relation to the national indicative energy savings target shall be measured as from 1 January 2008.

2. For the purpose of the first Energy Efficiency Action Plan (EEAP) to be submitted in accordance with Article 14, each Member State shall establish an intermediate national indicative energy savings target for the third year of application of this Directive, and provide an overview of its strategy for the achievement of the intermediate and overall targets. This intermediate target shall be realistic and consistent with the overall national indicative energy savings target referred to in paragraph 1.

The Commission shall give an opinion on whether the intermediate national indicative target appears realistic and consistent with the overall target.

3. Each Member State shall draw up programmes and measures to improve energy efficiency.

4. Member States shall assign to one or more new or existing authorities or agencies the overall control and responsibility for overseeing the framework set up in relation to the target mentioned in paragraph 1. These bodies shall thereafter verify the energy savings as a result of energy services and other energy efficiency improvement measures, including existing national energy efficiency improvement measures, and report the results.

5. After having reviewed and reported on the first three years of application of this Directive, the Commission shall examine whether it is appropriate to come forward with a proposal for a directive to further develop the market approach in energy efficiency improvement by means of white certificates.

Article 5

Energy end-use efficiency in the public sector

1. Member States shall ensure that the public sector fulfils an exemplary role in the context of this Directive. To this end, they shall communicate effectively the exemplary role and actions of the public sector to citizens and/or companies, as appropriate.

Member States shall ensure that energy efficiency improvement measures are taken by the public sector, focussing on cost-effective measures which generate the largest energy savings in the shortest span of time. Such measures shall be taken at the appropriate national, regional and/or local level, and may consist of legislative initiatives and/or voluntary agreements, as referred to in Article 6(2)(b), or other schemes with an equivalent effect. Without prejudice to national and Community public procurement legislation:

—at least two measures shall be used from the list set out in Annex VI;

—Member States shall facilitate this process by publishing guidelines on energy efficiency and energy savings as a possible assessment criterion in competitive tendering for public contracts.

Member States shall facilitate and enable the exchange of best practices between public sector bodies, for example on energy-efficient public procurement practices, both at the national and international level; to this end, the organisation referred to in paragraph 2 shall cooperate with the Commission with regard to the exchange of best practice as referred to in Article 7(3).

2. Member States shall assign to a new or existing organisation or organisations the administrative, management and implementing responsibility for the integration of energy efficiency improvement requirements as set out in paragraph 1. These may be the same authorities or agencies as those referred to in Article 4(4).

CHAPTER III

PROMOTION OF ENERGY END-USE EFFICIENCY AND ENERGY SERVICES

Article 6

Energy distributors, distribution system operators and retail energy sales companies

1. Member States shall ensure that energy distributors, distribution system operators and/or retail energy sales companies:

(a)provide on request, but not more than once a year, aggregated statistical information on their final customers to the authorities or agencies referred to in Article 4(4) or to another designated body, provided that the latter in turn transmits to the former the information received. This information must be sufficient to properly design and implement energy efficiency improvement programmes, and to promote and monitor energy services and other energy efficiency improvement measures. It may include historical information and must include current information on end-user consumption, including, where applicable, load profiles, customer segmentation and geographical location of customers, while preserving the integrity and confidentiality of information that is either of private character or commercially sensitive, in compliance with applicable Community legislation;

(b)refrain from any activities that might impede the demand for and delivery of energy services and other energy efficiency improvement measures, or hinder the development of markets for energy services and other energy efficiency improvement measures. The Member State concerned shall take the necessary measures to bring such activities to an end where they occur.

2. Member States shall:

(a)choose one or more of the following requirements to be complied with by energy distributors, distribution system operators and/or retail energy sales companies, directly and/or indirectly through other providers of energy services or energy efficiency improvement measures:

(i)ensure the offer to their final customers, and the promotion, of competitively priced energy services; or

(ii)ensure the availability to their final customers, and the promotion, of competitively-priced energy audits conducted in an independent manner and/or energy efficiency improvement measures, in accordance with Article 9(2) and Article 12; or

(iii)contribute to the funds and funding mechanisms referred to in Article 11. The level of such contributions shall as a minimum correspond to the estimated costs of offering any of the activities referred to in this paragraph and shall be agreed with the authorities or agencies referred to in Article 4(4); and/or

(b)ensure that voluntary agreements and/or other market-oriented schemes, such as white certificates, with an effect equivalent to one or more of the requirements referred to in point (a) exist or are set up. Voluntary agreements shall be assessed, supervised and followed up by the Member State in order to ensure that they have in practice an effect equivalent to one or more of the requirements referred to in point (a).

To that end, the voluntary agreements shall have clear and unambiguous objectives, and monitoring and reporting requirements linked to procedures that can lead to revised and/or additional measures when the objectives are not achieved or are not likely to be achieved. With a view to ensuring transparency, the voluntary agreements shall be made available to the public and published prior to application to the extent that applicable confidentiality provisions allow, and contain an invitation for stakeholders to comment.

3. Member States shall ensure that there are sufficient incentives, equal competition and level playing fields for market actors other than energy distributors, distribution system operators and retail energy sales companies, such as ESCOs, installers, energy advisors and energy consultants, to independently offer and implement the energy services, energy audits and energy efficiency improvement measures described in paragraph 2(a)(i) and (ii).

4. Under paragraphs 2 and 3, Member States may place responsibilities on distribution system operators only if this is consistent with the requirements relating to the unbundling of accounts laid down in Article 19(3) of Directive 2003/54/EC and in Article 17(3) of Directive 2003/55/EC.

5. The implementation of this Article shall be without prejudice to derogations or exemptions granted under Directives 2003/54/EC and 2003/55/EC.

Article 7

Availability of information

1. Member States shall ensure that information on energy efficiency mechanisms and financial and legal frameworks adopted with the aim of reaching the national indicative energy savings target is transparent and widely disseminated to the relevant market actors.

2. Member States shall ensure that greater efforts are made to promote energy end-use efficiency. They shall establish appropriate conditions and incentives for market operators to provide more information and advice to final customers on energy end-use efficiency.

3. The Commission shall ensure that information on best energy-saving practices in Member States is exchanged and widely disseminated.

Article 8

Availability of qualification, accreditation and certification schemes

With a view to achieving a high level of technical competence, objectivity and reliability, Member States shall ensure, where they deem it necessary, the availability of appropriate qualification, accreditation and/or certification schemes for providers of energy services, energy audits and energy efficiency improvement measures as referred to in Article 6(2)(a) (i) and (ii).

Article 9

Financial instruments for energy savings

1. Member States shall repeal or amend national legislation and regulations, other than those of a clearly fiscal nature, that unnecessarily or disproportionately impede or restrict the use of financial instruments for energy savings in the market for energy services or other energy efficiency improvement measures.

2. Member States shall make model contracts for those financial instruments available to existing and potential purchasers of energy services and other energy efficiency improvement measures in the public and private sectors. These may be issued by the authority or agency referred to in Article 4(4).

Article 10

Energy efficient tariffs and other regulations for net-bound energy

1. Member States shall ensure the removal of those incentives in transmission and distribution tariffs that unnecessarily increase the volume of distributed or transmitted energy. In this respect, in accordance with Article 3(2) of Directive 2003/54/EC and with Article 3(2) of Directive 2003/55/EC, Member States may impose public service obligations relating to energy efficiency on undertakings operating in the electricity and gas sectors respectively.

2. Member States may permit components of schemes and tariff structures with a social aim, provided that any disruptive effects on the transmission and distribution system are kept to the minimum necessary and are not disproportionate to the social aim.

Article 11

Funds and funding mechanisms

1. Without prejudice to Articles 87 and 88 of the Treaty, Member States may establish a fund or funds to subsidise the delivery of energy efficiency improvement programmes and other energy efficiency improvement measures and to promote the development of a market for energy efficiency improvement measures. Such measures shall include the promotion of energy auditing, financial instruments for energy savings and, where appropriate, improved metering and informative billing. The funds shall also target end-use sectors with higher transaction costs and higher risks.

2. If established, the funds may provide for grants, loans, financial guarantees and/or other types of financing that guarantee results.

3. The funds shall be open to all providers of energy efficiency improvement measures, such as ESCOs, independent energy advisors, energy distributors, distribution system operators, retail energy sales companies and installers. Member States may decide to open the funds to all final customers. Tendering or equivalent methods which ensure complete transparency shall be carried out in full compliance with applicable public procurement regulations. Member States shall ensure that such funds complement, and do not compete with, commercially-financed energy efficiency improvement measures.

Article 12

Energy audits

1. Member States shall ensure the availability of efficient, high-quality energy audit schemes which are designed to identify potential energy efficiency improvement measures and which are carried out in an independent manner, to all final consumers, including smaller domestic, commercial and small and medium-sized industrial customers.

2. Market segments that have higher transaction costs and non-complex facilities may be reached by other measures such as questionnaires and computer programmes made available on the Internet and/or sent to customers by mail. Member States shall ensure the availability of energy audits for market segments where they are not sold commercially, taking into account Article 11(1).

3. Certification in accordance with Article 7 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings (15) shall be regarded as equivalent to an energy audit meeting the requirements set out in paragraphs 1 and 2 of this Article and as equivalent to an energy audit as referred to in Annex VI(e) to this Directive. Furthermore, audits resulting from schemes based on voluntary agreements between organisations of stakeholders and an appointed body, supervised and followed up by the Member State concerned in accordance with Article 6(2)(b) of this Directive, shall likewise be considered as having fulfilled the requirements set out in paragraphs 1 and 2 of this Article.

Article 13

Metering and informative billing of energy consumption

1. Member States shall ensure that, in so far as it is technically possible, financially reasonable and proportionate in relation to the potential energy savings, final customers for electricity, natural gas, district heating and/or cooling and domestic hot water are provided with competitively priced individual meters that accurately reflect the final customer's actual energy consumption and that provide information on actual time of use.

When an existing meter is replaced, such competitively priced individual meters shall always be provided, unless this is technically impossible or not cost-effective in relation to the estimated potential savings in the long term. When a new connection is made in a new building or a building undergoes major renovations, as set out in Directive 2002/91/EC, such competitively priced individual meters shall always be provided.

2. Member States shall ensure that, where appropriate, billing performed by energy distributors, distribution system operators and retail energy sales companies is based on actual energy consumption, and is presented in clear and understandable terms. Appropriate information shall be made available with the bill to provide final customers with a comprehensive account of current energy costs. Billing on the basis of actual consumption shall be performed frequently enough to enable customers to regulate their own energy consumption.

3. Member States shall ensure that, where appropriate, the following information is made available to final customers in clear and understandable terms by energy distributors, distribution system operators or retail energy sales companies in or with their bills, contracts, transactions, and/or receipts at distribution stations:

(a)current actual prices and actual consumption of energy;

(b)comparisons of the final customer's current energy consumption with consumption for the same period in the previous year, preferably in graphic form;

(c)wherever possible and useful, comparisons with an average normalised or benchmarked user of energy in the same user category;

(d)contact information for consumers’ organisations, energy agencies or similar bodies, including website addresses, from which information may be obtained on available energy efficiency improvement measures, comparative end-user profiles and/or objective technical specifications for energy-using equipment.

CHAPTER IV

FINAL PROVISIONS

Article 14

Reports

1. Member States that already use, for whatever purpose, calculation methods for measuring energy savings similar to those described in Annex IV at the time of the entry into force of this Directive may submit information at the appropriate level of detail to the Commission. Such submissions shall take place as soon as possible, preferably not later than 17 November 2006. This information will enable the Commission to take due account of existing practices.

2. Member States shall submit to the Commission the following EEAPs:

—a first EEAP not later than 30 June 2007;

—a second EEAP not later than 30 June 2011;

—a third EEAP not later than 30 June 2014.

All EEAPs shall describe the energy efficiency improvement measures planned to reach the targets set out in Article 4(1) and (2), as well as to comply with the provisions on the exemplary role of the public sector and provision of information and advice to final customers set out in Articles 5(1) and 7(2) respectively.

The second and third EEAPs shall:

—include a thorough analysis and evaluation of the preceding EEAP;

—include the final results with regard to the fulfilment of the energy savings targets set out in Article 4(1) and (2);

—include plans for — and information on the anticipated effects of — additional measures which address any existing or expected shortfall vis-à-vis the target;

—in accordance with Article 15(4), use and gradually increase the use of harmonised efficiency indicators and benchmarks, both for the evaluation of past measures and estimated effects of planned future measures;

—be based on available data, supplemented with estimates.

3. Not later than 17 May 2008, the Commission shall publish a cost/benefit impact assessment examining the linkages between EU standards, regulations, policies and measures on end‐use energy efficiency.

4. The EEAPs shall be assessed in accordance with the procedure referred to in Article 16(2):

—the first EEAPs shall be reviewed before 1 January 2008;

—the second EEAPs shall be reviewed before 1 January 2012;

—the third EEAPs shall be reviewed before 1 January 2015.

5. On the basis of the EEAPs, the Commission shall assess the extent to which Member States have made progress towards achieving their national indicative energy savings targets. The Commission shall publish reports with its conclusions:

—on the first EEAPs before 1 January 2008;

—on the second EEAPs before 1 January 2012;

—on the third EEAPs before 1 January 2015.

These reports shall include information on related action at Community level, including legislation currently in force and future legislation. The reports shall take into account the benchmarking system referred to in Article 15(4), identify best practices, identify cases where Member States and/or the Commission are not making enough progress, and may contain recommendations.

The second report shall be followed, as appropriate and where necessary, by proposals to the European Parliament and to the Council for additional measures including a possible extension of the period of application of targets. If the report concludes that insufficient progress has been made towards achieving the national indicative targets, these proposals shall address the level and nature of the targets.

Article 15

Review and adaptation of the framework

1. The values and calculation methods referred to in Annexes II, III, IV and V shall be adapted to technical progress in accordance with the procedure referred to in Article 16(2).

2. Before 1 January 2008, the Commission, in accordance with the procedure referred to in Article 16(2), shall further refine and complement as required points 2 to 6 of Annex IV, whilst respecting the general framework set out in Annex IV.

3. Before 1 January 2012, the Commission, in accordance with the procedure referred to in Article 16(2), shall raise the percentage of harmonised bottom-up calculations used in the harmonised calculation model referred to in point 1 of Annex IV, without prejudice to those Member State schemes that already use a higher percentage. The new harmonised calculation model with a significantly higher percentage of bottom-up calculations shall first be used as from 1 January 2012.

Wherever practicable and possible, the measurement of total savings over the total period of application of the Directive shall use this harmonised calculation model, without prejudice to those Member State schemes that use a higher percentage of bottom-up calculations.

4. Not later than 30 June 2008, the Commission, in accordance with the procedure set out in Article 16(2), shall develop a set of harmonised energy efficiency indicators and benchmarks based upon them, taking into account available data or data that can be collected in a cost-effective manner for each Member State. For the development of these harmonised energy efficiency indicators and benchmarks the Commission shall use as a reference guide the indicative list set out in Annex V. Member States shall gradually integrate these indicators and benchmarks into the statistical data included in their EEAPs as referred to in Article 14, and use them as one of the tools at their disposal to decide on future priority areas in the EEAPs.

Not later than 17 May 2011, the Commission shall present to the European Parliament and the Council a report on the progress in setting indicators and benchmarks.

Article 16

Committee

1. The Commission shall be assisted by a Committee.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.

Article 17

Repeal

Directive 93/76/EEC is hereby repealed.

Article 18

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 17 May 2008, with the exception of the provisions of Article 14(1), (2) and (4), for which the date of transposition shall be, at the latest 17 May 2006. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 19

Entry into force

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Article 20

Addressees

This Directive is addressed to the Member States.