Décret tertiaire, obligations de réduction de la consommation énergétique et solutions

Every owner or tenant of buildings, parts of buildings, or a group of buildings hosting a tertiary activity with a surface area equal to or greater than 1000m² is subject to the tertiary decree. Therefore, if a building is of mixed use, only the part housing a tertiary activity is affected. In the case of a group of buildings located on the same site or the same land unit*, it is necessary to combine the surfaces on which a tertiary activity is carried out to determine whether the building is subject to the tertiary decree or not.

Under the tertiary decree, owners will have to take action on the building and on their activity if they carry it out themselves. Conversely, tenants will only be able to act on their activity.

This tertiary decree thus applies to many buildings, whether in the private or public sector. The buildings concerned are as follows:

• Offices
• Hotels
• Shops
• Educational buildings
• Administrative buildings
• Logistics
• Healthcare
• Sports facilities

Thus, industrial companies may be affected by the tertiary decree if they have:

• A company restaurant
• Administrative offices or an office area (HR, Sales, etc.)
• A showroom
• A storage space

To achieve the objective of improving sustainable development within the French territory, the Government, as part of the tertiary decree, has imposed on companies a reduction in their energy consumption by 2050. In order to hope to achieve the expected objective within the next fifteen years, the Government has set up different goals expressed in either absolute or relative terms. It is up to the subject to choose how they prefer to meet the objectives of the tertiary decree. In case of non-compliance with the objective, the tertiary decree states that sanctions may be implemented.

In the context of achieving the objective using the relative value method: The State has established different “levels” that take place every decade until the final objective defined in 2050. The levels set by the tertiary decree, which must be respected by the owners or tenants of a building hosting tertiary activities, are as follows:

– Reduction of the building’s final energy consumption by 40% by 2030
– Reduction of the building’s final energy consumption by 50% by 2040
– Reduction of the building’s final energy consumption by 60% by 2050

This energy reduction must be compared to a reference year chosen between 2010 and 2019, provided by the subject themselves.

Choosing this relative value method can be beneficial in the case of tertiary activities carried out in an old, rather energy-intensive building.

As part of achieving the objective with the absolute value method: The objectives to be achieved will then be set according to the building category, geographical area, altitude. In relation to these elements, the thresholds will be different from those of the relative value because they will depend on two components:

• HVAC = Heating, Ventilation, Air Conditioning
• SEU = Specific Energy Use

This absolute value method, within the scope of the tertiary decree, is to be favored as soon as the liable party owns a recent, low-energy-consuming building.

An IT platform OPERAT, managed by ADEME, has been set up. This platform allows those concerned to enter the information requested by the State such as:

• Description of the tertiary activity carried out
• Floor area of the buildings carrying out this activity
• Reference year, mandatory regardless of the chosen method (the reference year had to be provided in September 2022)
• Annual energy consumption data of the building
• Any adjustments to the objectives

Since 2022, those concerned must now transmit on the OPERAT platform, the final energy consumption of the previous year of their building, each year before September 30th.

Given that the tertiary decree is a very vast and complex topic, the OPERAT platform also has an FAQ tab that provides answers to more in-depth questions.

To avoid any sanctions, subjects must proceed methodically, here are the steps to follow in order to reduce their energy consumption:

Step 1: Precisely identify the premises subject to the tertiary decree

Step 2: Analyze the most energy-intensive points of your buildings

Step 3: Implement an action plan to reduce your consumption and achieve the objectives set by the tertiary decree

To meet the obligations of the tertiary decree, it is possible to use external service providers who can help you reduce your energy consumption and enter data on the OPERAT platform

Under the tertiary decree, the liable party is required to: 

• Declare its data every year before September 30th on the OPERAT platform
• Comply with the set objectives of the tertiary decree

Failure to meet either of these two obligations may result in various sanctions. 

In the case of unjustified non-declaration of data on the OPERAT platform: 

The competent prefect for the building and the tertiary activity carried out may formally request the liable party to provide the missing information within a three-month period. 

In the event of non-compliance with the objectives set by the tertiary decree: 

The prefect may formally request the liable party to submit an action plan within a six-month period to comply with the set objectives. If after these 6 months, no progress is visible, the prefect may issue an individual formal notice to the owner or tenant. They will then be required to submit their action plan within a three-month period, which must comply with their respective obligations. 

Following the last formal notice and if the liable party has not provided the prefect with their action plan, the prefect may impose a financial penalty of up to €1500 for an individual and up to €7500 for a legal entity. 

It should be noted that in France, a document published online tracks formal notices that have remained ineffective. Thus, formal notices can have serious consequences on the company’s image and reputation, and consequently on its operations.