REVISION OF ENERGY PERFORMANCE OF BUILDINGS DIRECTIVE DRAWS CLOSER
The ways in which electricity is generated and how it is consumed have been targeted quite some time ago with the so-called energy transition programs, which were the subject of, for example, the 2015 Paris Agreement or the so-called European Green Deal. Changes in the management of energy carriers affect, already at this stage of the transition, among other things, buildings and therefore households. The labelling of homes with classes appears as a specter of the near future. What, then, is the subject of the planned legislative changes?
I. Current legal situation
Since the turn of the century, the European Union has adopted a number of laws that address the issue of energy efficiency and energy performance of objects. These laws contain various measures, applying at the level of production and sale, designed to reduce demand for energy from non-renewable sources, in line with the EU’s climate goals. Moreover, effective implementation and financing of the energy transition process requires reliable and transparent information on the energy efficiency of objects. Thus, for example, there is a mandatory energy labelling system for household appliances. The energy label indicates a product’s energy performance class and annual energy consumption. With respect to buildings, the key relevant piece of legislation is Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (EPBD), which was transposed into Polish law in the form of the Energy Performance of Buildings Act. The EPBD’s recitals state, among other things, that the EU has been adopting legislation to comply with the Kyoto Protocol to the UN Framework Convention on Climate Change; that buildings account for 40% of total energy consumption in the EU; that the methodology whereby the energy performance of buildings should be calculated may be differentiated at national and regional level to account for different climate conditions; and that it is the responsibility of Member States to set minimum requirements for the energy performance of buildings and building elements, but that these requirements should not diverge by more than 15% from a methodology framework to be laid down by the European Commission.
The above legal acts did not impose a mandatory system of energy labels for buildings of the kind that exists for movable objects; however, they established a system of certification of the energy performance of buildings. The energy performance certificate describes the energy performance of a building, notably in terms of its annual primary and final energy use, expressed in kWh/m2/year. There are two methodologies for calculating the energy performance of a building: one is based on standard building use, and the other on actual energy consumption. In Poland, the template for the energy performance certificate is laid down in a 2015 ministerial regulation. It includes a linear scale with primary energy (Ep) values ranging from 0 kWh/m2/year to 500 kWh/m2/year, marked in colors from green to red. (The similarity to the EU energy labels for household appliances is clear, suggesting that in the future, buildings might be labelled with energy performance ratings, too.) Importantly, all new buildings must have primary energy use below 100 kWh/m2/year.
II. EPBD revision: the reasons
In December 2021 the European Commission adopted a legislative proposal for the revision of the EPBD. In a plenary session in March 2023, the European Parliament adopted amendments to this proposal. The Parliament, the Commission and the European Council are now engaged in so-called trilogue negotiations designed to achieve a compromise between their positions. The revised EPBD is planned to come into force in 2024.
The explanatory memorandum and the recitals to the proposed EPBD revision, as amended by MEPs, begin by noting that the EPBD has been substantially amended several times, and since further amendments are to be made, the EPBD should be recast in the interests of clarity.
As for substance, in a statement issued in December 2021, after it adopted the revision proposal, the European Commission said that “the recast EPBD aims to accelerate building renovation rates, reduce GHG emissions and energy consumption, and promote the uptake of renewable energy in buildings.” A recital adds that the revision is necessary as one of the vehicles to deliver on the Renovation Wave, a strategy presented by the European Commission in October 2020 aimed at doubling the annual energy renovation rate of buildings by 2030 and to foster deep renovations in more than 35 million buildings and the creation of up to 160,000 additional green jobs in the construction sector.
The explanatory memorandum also states e.g. that harmonization of energy performance classes will ensure comparability across the EU and similar efforts by Member States; or that a requirement for the energy performance class and indicator of a building or building unit offered for sale or rent to be stated in all advertisements will ensure the relevance of energy performance on the market for sale and rental.
III. EPBD revision: key changes
Under the proposed EPBD revision, Member States are to introduce a harmonized scale of energy performance classes, using only letters A to G, where the highest class A includes zero-emission buildings (as defined in Article 2), and the lowest class G includes the worst-performing 15% of the Member State’s building stock at the time of the introduction of the scale. Member States may define an A+ energy performance class for buildings that have energy needs for heating, cooling, ventilation and hot water no higher than 15 kWh/m2/year and meet certain other conditions. For classes A-G, the directive does not set specific values, leaving that to Member States.
Furthermore, Member States are to adopt national building renovation plans. A building renovation plan is to encompass, notably, an overview of the national building stock for different building types, and a roadmap with nationally established targets and measurable progress indicators, and specific timelines for all existing buildings to achieve higher energy performance classes by 2030, 2040 and 2050, with a view to the 2050 climate neutrality goal. The roadmap is to include specific timelines for buildings to achieve higher energy performance classes by 2030 and every five years thereafter.
A key part of the revision, and an area in which the European Parliament amended the original European Commission proposal to make it even more ambitious, are dates by which buildings should comply with specific energy performance standards. Under the Parliament’s amendments, Member States are to ensure that existing public and non-residential buildings achieve at least energy performance class E by 1 January 2027, and D by 2030; and that residential buildings achieve the same ratings by 2030 and 2033, respectively. (The European Commission proposed F and E.) Also, under the Parliament’s amendments, all new buildings in the EU should be zero-emission from 2028, and new buildings occupied, operated, or owned by public authorities from 2026. (The European Commission proposed 2030 and 2027.)
In another important provision, in setting up system requirements for technical building systems – aimed at optimizing their energy use – Member States are to ensure the use of the equipment that meets the criteria for the highest available energy efficiency classes.
Also worth noting is the provision whereby the European Commission is empowered, 12 months after the date of entry into force of the EPBD revision, to adopt a so-called delegated act to encourage banks to offer loans for building renovations, and to ensure that banks do not limit their mortgage lending to consumers purchasing high energy performance dwellings.
The energy performance certificate is to comply with the template in Annex V of the revised EPBD by 31 December 2025 (albeit with some exceptions). The validity of the energy performance certificate will be up to five years, rising to 10 years for buildings with an energy performance class A+. Member States are to establish independent control systems for energy performance certificates that will verify the availability of certificates to prospective buyers and tenants, and the visibility of the energy performance indicator and class in advertising media.
IV. Polish preparations to implement recast EPBD
The Ministry of Development and Technology says on its website that preparation of a draft bill amending the Energy Performance of Buildings Act to transpose the recast EPBD has not been completed yet. But the Polish Energy Conservation Agency (KAPE), a quasi-governmental consulting agency owned by the National Fund for Environmental Protection and Water Management (NFOSiGW), has published a proposal for the new scale of energy performance classes. With respect to residential buildings, is looks as follows:
- Class A: 0-63 kWh/m2/year,
- Class B: 63-157 kWh/m2/year,
- Class C: 157-250 kWh/m2/year,
- Class D: 250-344 kWh/m2/year,
- Class E: 344-438 kWh/m2/year,
- Class F: 438-531 kWh/m2/year,
- Class G: over 531 kWh/m2/year,
- Class A: 0-59 kWh/m2/year,
- Class B: 59-141 kWh/m2/year,
- Class C: 141-223 kWh/m2/year,
- Class D: 223-305 kWh/m2/year,
- Class E: 305-387 kWh/m2/year,
- Class F: 387-469 kWh/m2/year,
- Class G: over 469 kWh/m2/year.
What will be the outcome of the trilogues? Will the new scale adopted in Poland follow KAPE’s proposal? The coming months should tell.
By Jan Akimenkow, trainee attorney at law
Tomasz Milewski, attorney at law
Originally published in PMR Construction Insight: Poland, No. 11 (272), November 2023
 Cf. e.g.: DIRECTIVE 2009/125/EC; DIRECTIVE 2010/30/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 19 MAY 2010; DIRECTIVE 2012/27/EU – Annex III on energy performance classes of products, services and buildings; REGULATION (EU) 2017/1369 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 4 JULY 2017; REGULATION (EU) 2018/1999 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 DECEMBER 2018; DIRECTIVE (EU) 2023/1791 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 13 SEPTEMBER 2023.
 Cf. ACT OF 29 AUGUST 2014 ON THE ENERGY PERFORMANCE OF BUILDINGS, Journal of Laws 2021, item 497.
 Recitals are texts at the start of EU acts (directives, regulations) that set out the reasons for their provisions, citing statistical data, existing laws etc.
 Cf. REGULATION OF THE MINISTER OF INFRASTRUCTURE AND DEVELOPMENT OF 27 FEBRUARY 2015 ON THE METHODOLOGY FOR DETERMINING THE ENERGY PERFORMANCE OF A BUILDING OR BUILDING ELEMENT AND ENERGY PERFORMANCE CERTIFICATES.
 The trilogue process is regulated neither in primary law (treaties) nor secondary law (directives, regulations). It was formalized in a joint declaration by the Commission, the Parliament and the Council in 1999, which was amended in 2007.