For a few years now, the construction sector has been having to comply with increasingly strict rules with regard to the energy performance of buildings (EPB). Regulation in this area has developed with impetus from European regulation – especially Directive 2002/91/EC of 16 December 2002, now replaced by Directive 2010/31/EU of 19 May 2010. These Directives have been transposed, in the Walloon Region, by the framework decree of 19 April 2007, which added a Book IV to the relevant Walloon Code (CWATUPE) and, in the Brussels Capital Region, by the ordinance of 7 June 2007 on the energy performance and indoor climate of buildings. A summary overview of obligations to be complied with in terms of EPB regulation follows.
Definition of the EPB requirements
EPB is defined as the quantity of energy necessary to meet the different needs for the standard use of a building. This primarily refers to the energy needs related to the heating or cooling of air, the heating of water, and lighting.
EPB regulation is organised around a few minimum technical prescriptions which buildings must conform with. These minimum prescriptions are the EPB requirements.
Not all buildings have to comply with EPB requirements. Some types of building, such as places of worship, do not fall within their scope of application. Moreover, EPB requirements apply only to new buildings and, under certain conditions, to existing buildings being renovated or, in the Walloon Region only, to a change in the intended use of a building. An existing building is defined by the legislation as a building for which the date of acknowledgement of receipt of the first application for a permit is prior to 1 May 2010 in the Walloon Region and prior to 2 May 2008 in the Brussels Capital Region. By contrast, if the application for a permit was introduced on or after the applicable date, the (re)constructed building will be considered to be a new building.
It should be kept in mind that EPB requirements applying to new buildings differ from those applying to existing renovated buildings or buildings for which the intended use is being changed. Depending on the scope of the works, the EPB requirements applicable to renovation works will also vary.
Obligation to ensure compliance with EPB requirements
In the Walloon Region and in the Brussels Capital Region, it is up to the EPB registrant to ensure compliance with EPB requirements. According to the legislation, the EPB registrant is the principal. Thus, the owner of a new building, an existing building or a building being renovated will be the EPB registrant, provided that he is the principal in the context of the construction works or the renovation works.
Most of the time, the status of owner and the status of principal are one and the same, but they can nevertheless occasionally be dissociated. This will be the case, for instance, when the tenant takes the initiative of carrying out works in a building, in which case he will be considered as the principal and thus the EPB registrant.
In the context of contracts for purchases from property developers, the real estate promoter, which in this case is the principal, may transfer to the buyer the status of EPB registrant, together with the obligation to ensure compliance with EPB requirements. This transfer should nonetheless be provided for in the purchase contract concluded between the promoter and the buyer, in which certain clauses specified in EPB legislation are mandatory. The relevant provisions differ slightly between the Walloon Region and the Brussels Capital Region.
In the Walloon Region, in case of failure to comply with the EPB requirements, the EPB registrant is liable for an administrative fine of between EUR 250 and EUR 50,000, unless evidence shows that the failure has to be attributed to the architect or the contractor. The EPB registrant would thus be well advised to retain a record of the fact that he has instructed his architect and/or contractor to adhere to these requirements.
In the Brussels Capital Region, a registrant who fails to comply with the EPB requirements is liable for an administrative fine of at least EUR 125.
Obligation to report
In the Walloon Region, the procedure laid down in the CWATUPE requires the EPB registrant not only to designate the person responsible for EPB (generally the architect), who is in charge of the design and the description of the measures to be implemented in order to meet the EPB requirements, but also to send to the competent authority several documents enumerated and defined in the legislation (EPB commitment, initial EPB declaration, final EPB declaration and, where required, the technical, environmental and economic feasibility study).
In the Brussels Capital Region, the EPB registrant is required to designate the "EPB consultant" ("conseiller PEB”/"E.B.P.-adviseur") – comparable with the person responsible for EPB in the Walloon Region – and to send an EPB declaration to the competent authority.
Moreover, an applicant for a construction, reconstruction or renovation permit must submit the EPB along with the application, unless an exemption has been granted.
All of these obligations rest on the owner of the building if he is also – as the case may be – the principal, the applicant for a permit, or if he meets the conditions of being an EPB declarant in the context of a property development.
In the Walloon Region, if the EPB registrant fails to submit the initial EPB declaration and the final EPB declaration, he will be liable for a fine of between EUR 250 and EUR 50,000. This sanction does not apply, however, if the registrant fails to submit the EPB commitment or the feasibility study. Given that these documents have to be sent with the permit application in order for the latter to be admissible, they cannot be omitted from the application.
In the Brussels Capital Region, if the EPB registrant does not designate the EPB consultant and/or fails to notify the EPB declaration in the manner and within the time period specified, he runs the risk of being sentenced to a period of imprisonment of between 8 days and 12 months, and/or being ordered to pay an administrative fine of between EUR 25 and EUR 250,000.
Obligations in terms of EPB certificates
The PEB regulations establish a system of EPB certificates, which are veritable “"energy ID cards" for a building, describing its actual energy performance.
In the Walloon Region and in the Brussels Capital Region, the building owner is required to have a valid EPB certificate in certain circumstances.
In the Walloon Region, for any new building, the owner is required to have an EPB certificate upon completion of the construction works. For existing buildings, the owner or the holder of a right in rem is required to have an EPB certificate:
- when an act is passed conferring a personal right to use the building; and
- when any act is passed involving the declaration, transmission or constitution of a right in rem, excluding mortgage or antichresis (real estate pledge right), involuntary acts, or acts putting an end to joint ownership resulting from succession.
In the case of the construction of a new building, the EPB certificate will be issued by the Regional authorities. In other cases, it will be issued by an EPB certifying officer.
In the Brussels Capital Region, the owner of the building is also required to have an EPB certificate upon completion of a new building. For existing buildings, this obligation exists:
- when they are put up for sale;
- when they are rented out;
- when a real estate lease is entered into;
- when rights in rem inter vivos are established.
An owner announcing the intention to sell or rent out his building, grant a right in rem or enter into a real estate lease must include details of the energy performance in his advertisement.
When a new building is constructed, the EPB certificate is issued by the Brussels Environmental Authority (IBGE), in other cases by the EPB certifying officer.
In the Walloon Region and in the Brussels Capital Region, the original certificate must be handed over by the seller of a building to the buyer. A landlord must give his tenant a copy.
For public service buildings or buildings for community facilities, as well as for any building occupied by a public authority, open to the public and with a total useable surface area in excess of 1,000 square metres, a valid EPB certificate must be displayed to the public in a visible and legible manner.
A building owner who does not hold a valid EPB certificate when required so is liable for a fine of between EUR 250 and EUR 50,000 in the Walloon Region and a fine of between EUR 62.50 and EUR 62,500 in the Brussels Capital Region. Criminal prosecution is also possible in the Brussels Capital Region.
One should bear in mind that the EPB certificate is only valid for a period of 10 years, except in the case of public buildings, where the validity period is shorter. It should also be noted that the costs of the issuing of an EPB certificate have to be borne by the building owner.