The Energy Audit after 1 July 2015

Czech Republic: On 1 July 2015, an amendment to the Energy Efficiency Act (Act. No. 406/2000 Coll.) comes into force – will it affect your business, too?

An amendment to the Energy Efficiency Act which comes into force on 1 July 2015 newly stipulates (in Sec. 9 (2) of the Act) that enterprises (other than small and medium enterprises – SMEs) must carry out an energy audit on the energy consumption profile of facilities which they use or own, and to regularly update their energy audit at least once every four years.

The obligation to run an energy audit does not extend to enterprises which have established an energy management system under the Czech harmonized standard for energy management systems (or an environmental management system pursuant to the Czech harmonized standard for environmental management systems).

The act does not specify who exactly qualifies as a small or medium enterprise (that is, what criteria are used for determining whether a given business falls within the SME category or not).

The interpretation of these terms (that is, the corresponding categorization of businesses/enterprises) is found in EU law, specifically in Annex I to Commission Directive (EC) 800/2008 (the „Directive”) and (identically) in Commission Recommendation 2003/361/EC. Annex I to the Directive sets out (in Art. 2 (1)) that the category of micro, small and medium-sized enterprises (‘SMEs’) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million. It further provides for various types of enterprises which are to be taken into account when calculating headcounts and financial thresholds – differentiating between the categories of autonomous enterprise, partner enterprise, and linked enterprise.

Article 6 of the same Directive determines how to perform the calculations for enterprises which qualify as partner enterprise or linked enterprise.

In the case of countless cross-border holding structures involving a parent company and local subsidiaries, the latter will have to be considered as „linked enterprises”, so that staff headcounts and financial limits must be added up for the entire group.

This interpretation can also be seen to be favored in Communication from the Commission to the European Parliament and the Council – COM(2013) 762 – Implementing the Energy Efficiency Directive – Commission Guidance, which inter alia stipulates in its Article 3.4 that the enterprise in question must determine whether it is the partner of, or linked to, an enterprise in another country. Article 3.4 expressly states that as a result, small branches in one Member State may need to carry out an energy audit every four years because they do not fall within the definition of SME and therefore come within the category of large enterprises.

However, the expectation would at the very minimum be that the audit results will be recognized across national borders. The wording of the amendment bill indicates no such thing, so that we will have to await what stance the regulatory authorities will take in their practical application of the law.

Source: Amendment No. 103/2015 Coll. to the Energy Savings Act (Act No. 406/2000 Coll., as amended), and the Act on Administrative Fees (Act No. 634/2004 Coll., as amended)

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