FAQ on the tertiary sector decree: everything you need to know in 15 questions and answers

Who is affected?

Owners and, where applicable, tenants of buildings housing service sector activities—whether commercial or non-commercial—with a floor area of 1,000 m² or more. Temporary structures, places of worship, and buildings used for defense, civil protection, or internal security are exempt. However, historic monuments are included, provided that energy-saving measures do not alter their character. Thus, a museum, a hospital, a university, a bank, a retail establishment, or even a city hall or a gymnasium—and even the AFNOR headquarters in Saint-Denis—fall within the scope of the decree.

Are all spaces smaller than 1,000 square meters exempt?

If you occupy a smaller space, this will not apply to you … unless your service-sector business is located in a building shared with other service providers and, collectively, you occupy a floor area of more than 1,000 m².

It is also important to note that if business operations cease in a given building, you remain subject to the requirement even if the total floor area then falls below 1,000 m². And if, after operations cease, other businesses move in, they will be subject to the requirement just like you!

I own several buildings. Can I spread the workload?

Yes. This allows you to focus on specific buildings that you believe have significant potential for reducing environmental impacts and enhancing their heritage value. The decree states that “to verify compliance with the objectives, those subject to the requirement may aggregate the results across all or part of their portfolio subject to the obligation.”

My company does not operate in the service sector as defined by INSEE, but it does have offices. Does this apply to me?
Yes, this applies to companies engaged in industrial or agricultural activities that are large enough to have office space for non-residential use exceeding 1,000 square meters, such as a corporate headquarters.

Thus, certain large industrial sites—equipped with offices, laboratories, storage areas, or warehouses—will be directly affected, as the decree specifies that “owners or tenants of buildings located on the same parcel of land or on a single site are subject to this requirement when those buildings house a service-sector activity covering a total area of more than 1,000 m².”

Obligation of means or obligation of results?

First and foremost, a performance-based target, stated as follows: to reduce final energy consumption by at least 40% by 2030, 50% by 2040, and 60% by 2050, compared to a baseline consumption level from 2010 or later. The text provides for a second option: to achieve, by these deadlines, a level of final energy consumption set as an absolute value, based on the energy consumption of new buildings in the same category.

The obligation to use reasonable means applies when adjustments are made—other than those based solely on the volume of activity: in such cases, a technical report must be prepared to justify these adjustments and made available to the authorities.

What steps can I take?

The law requires that “measures to reduce final energy consumption” be implemented. The decree specifies that these actions go beyond physical measures related to the energy performance of buildings (work on the building envelope, which is often quite costly), and appropriately cites other levers: the installation of high-performance equipment and systems for monitoring and actively managing their performance, equipment operating procedures, adapting facilities for energy-efficient use, and occupant behavior. An energy management system compliant with the voluntary ISO 50001 standard enables all these different levers to be mobilized in a coordinated manner within an organization. Finally, since this regulation aims to meet our climate commitments, the decree states that, during renovation projects, changing the type of energy source must not increase greenhouse gas emissions.

How can I reduce my energy consumption—but compared to what?

Compared to a “reference energy consumption” observed over a full year of operation—which must not predate 2010—and adjusted based on climate data using a method defined in a decree dated April 10, 2020. Thus, this may be the last known annual energy consumption, even if it was recorded immediately prior to work undertaken after that date. Organizations that implemented energy-saving measures before 2010 will opt for the second option provided by the law, which is to achieve the energy consumption levels of new buildings in their category.

What is the value of an energy audit in the context of this regulation?

An energy audit involves analyzing your energy usage to identify opportunities for energy savings and prioritize them based on various criteria: return on investment, productivity gains, maintenance, GHG reduction, comfort, etc. In addition to identifying savings opportunities, a key output of the audit is the establishment of a baseline energy profile against which actual improvements will be measured. It is therefore an essential tool for defining your roadmap. Have you already had an energy audit conducted in accordance with the methodology of the EN 16247 standard, either voluntarily or because you are subject to the mandatory four-year energy audit required by the European Energy Efficiency Directive? This is a valuable asset for complying with the Tertiary Sector Decree.

What should I do if my stock plan is too expensive?

If the energy audit determines that the costs of the measures are disproportionate, the law provides for an adjustment of the final energy consumption reduction targets. The decree specifies that this adjustment must be based on technical and financial justification. Such justification may well be provided by an energy audit conducted by a qualified professional. The technical file justifying the adjustment must be made available to the officials responsible for oversight, in this case the officials of the prefecture with jurisdiction over the location of the buildings.

When and to whom are we accountable?

Building owners and landlords will be required to report the energy consumption of the buildings under their responsibility annually via a “digital data collection and monitoring platform,” whose operator will be designated by executive order. It is anticipated that this operator will be ADEME. Those subject to this requirement may delegate this task to a service provider or to energy distribution network operators. In addition to the nature of the activities carried out and the areas involved, annual energy consumption by energy type must be reported each year starting in 2021, no later than September 30 for the previous year’s data.

How can I track my progress year after year?

If you are implementing an ISO 50001 management system, you are already well-equipped if your energy management system covers the scope of your facilities affected by the decree. All you need to do is report the data requested in section 10 and align your efforts with the decree’s objectives. If you have not implemented an ISO 50001 management system, combining the energy audit with a plan to measure and verify the energy savings generated by your action plan is a good way to organize your efforts for the long term. The decree effectively requires annual monitoring of energy consumption and the trajectory of energy savings, and taking a “snapshot” of the situation in 2030 to verify that the 40% reduction target has been met. For subsequent periods (2030–2040, 2040–2050), this process must be repeated.

My company is ISO 50001 certified. How can I highlight this achievement?

If you are already implementing an ISO 50001 management system, you are already equipped to report your annual energy consumption, track your energy performance, and identify priority actions—you have a head start. This will make your Energy Manager’s job easier.

What are the consequences if I do nothing?

Above all, you risk damaging your reputation and your organization’s commitment to social responsibility! Lawmakers have heeded the messages from stakeholders and established penalties for non-compliance with obligations that focus primarily on holding stakeholders accountable rather than on exorbitant fines

• If you fail to pay, your identity will be published on a government website as part of a “name and shame” policy.
• If consumption data is not submitted, the relevant prefect may issue a formal notice requiring you to do so, and you will have three months to comply with this requirement; failure to do so may result in your name being published on a government website.
• If, without justification, you fail to meet the energy consumption reduction targets set forth in the decree, the prefect may require you to submit, within six months, an action plan with a timeline and a funding plan to achieve your targets. If this deadline is not met, the owner and, where applicable, the tenant will be notified individually and must (within three months) submit their action plan to the authorities, or risk being identified on a government website. Only following failure to comply with the obligations associated with the second formal notice may an administrative fine be imposed: up to €1,500 for individuals and up to €7,500 for legal entities.
• If you fail to comply with the action plan approved by the administration, proceedings will be initiated, at the conclusion of which the prefect may impose an administrative fine on you in the same amount as before.

Why is this measure being implemented for commercial buildings?

The fact is that the building sector remains, as always in France, the most energy-intensive sector and the second-largest emitter of greenhouse gases: 45% of national energy consumption and 27% of emissions. Along with transportation, it is the main factor responsible for France’s failure to meet its carbon budgets for the 2015–2018 period (draft national low-carbon strategy, December 2018). For this reason, the government has made building renovation a priority and published the national plan for energy-efficient building renovation in early 2018.

Commercial buildings are at the heart of this plan for the following reason: although they account for only a relatively modest share of France’s energy demand and emissions (15% of demand and 7.4% of emissions, respectively, according to 2018 key figures from ADEME, November 2018), they showed a steady increase in final energy consumption throughout the 2000s, before it stabilized in 2011. The draft multi-year energy plan (February 2019) even indicates that, adjusted for weather variations, the sector’s consumption decreased by 2% in 2016, likely due to measures taken on existing buildings and the high energy performance of new constructions. It is therefore essential to continue these efforts to sustain this decline by renovating more and better. This would mark a reversal of the trend seen in the 2000s and would enable us to meet our climate goals.

What happens next?

Section 175 of the ELAN Act of November 23, 2018, and the decree of July 23, 2019, establish operational guidelines for reducing energy consumption and greenhouse gas emissions in the tertiary sector. These documents will be supplemented in the fall of 2019 by an administrative order and an accompanying guide. AFNOR Energies is closely monitoring the development of these documents.