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Mandatory energy audit for large enterprises

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Pursuant to article of the Vlarem II-legislation (which is a transposition of article 8 of the European Directive 2012/27/EU on energy efficiency, hereinafter referred to as “the Directive”), all enterprises which are not a SME (and cannot invoke a specific exemption) are subject to an energy audit prior to December 5, 2015. This mandatory energy audit should be repeated at least every four year as from the date of the previous energy audit.

Although exceptions are possible, the obligation to perform an energy audit is applicable to every establishment of an enterprise which (i) has more than 250 employees; or (ii) yearly turnover exceeds 50 million Euros and balance sheet total exceeds 43 million Euros. Indeed, these criteria should be assessed for every establishment independently.

If these criteria are met, the energy-audit has to be performed by an internal or external energy expert on the basis of the minimum criteria as set forth by Annex VI of the Directive. In this respect, every energy audit should be “proportionate, and sufficiently representative to permit the drawing of a reliable picture of overall energy performance and the reliable identification of the most significant opportunities for improvement”. Afterwards, the results of this audit should be registered with a web application, which is currently still under construction, but should be up and running shortly.

As regards the sanctions on the non-compliance with the obligation to perform an energy audit, article 13 of the Directive states that the penalties should in any case be “effective, proportionate and dissuasive”. On the basis thereof (and by lack of any clear penalties taken up in the Vlarem II-legislation on this matter), the advisory boards Minaraad, SERV and SALV presume that the non-compliance with article Vlarem-II will be sanctioned in the same manner as an enterprise which acts in violation with its environmental permit. Not performing the mandatory energy audit could thus result in the suspension of the enterprise’s environmental permit.

Finally, it should be noted that although every enterprise that meets the above mentioned criteria is obliged to perform an energy audit, the outcome of such audit is (currently) not linked to the obligation for an enterprise to take any kind of specific energy saving measures to enhance its energy-efficiency.

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