In July 2021, we wrote about the energy label C obligation for office buildings and how this obligation might affect hotels. However, the obligation to have an energy label C is not the only relevant rule in the field of sustainability of the built environment.
As a result of the Climate Agreement from 2019, the obligation to save energy from the Environmental Management Act (Wet Milieubeheer) has been getting renewed attention. The obligation to save energy has existed since 1993 already, and was recorded in its current form in the Environmental Management Activities Decree (Activiteitenbesluit milieubeheer). The obligation to save energy implies that certain companies have to take all energy-saving measures published by the government (or similar measures), with a payback time of 5 years or less.
In the Climate Agreement from 2019, municipalities and provinces were instructed to give priority to the enforcement of the obligation to save energy. The parties responsible for fulfilling this obligation may vary. There is every reason to scrutinize this obligation to save energy and to assess what consequences it may have for hotels.
The obligation to save energy
The obligation to save energy applies in the event that energy consumption within one calendar year is more than 50,000 kWh electricity or more than 25,000 m3 natural gas or a similar fuel. By way of illustration: according to a March 2021 report from TNO, in 2020 92% of the total floor area of hotel functions in the Netherlands met this threshold value.
The obligation to save energy is set out in Article 2.15 of the Environmental Management Activities Decree and reads as follows: “The operator of the establishment shall take all energy-saving measures with a payback time of 5 years or less.” Below, we will discuss three important elements of this article: the terms ‘establishment’ and ‘operator’ and what is meant by energy-saving measures.
An establishment
An establishment means: ‘any activity undertaken by men on a commercial basis or in a scope as if it were commercial, which tends to be performed within certain boundaries’. A hotel qualifies as an establishment and therefore the obligation to save energy applies to hotels.
In addition, it is possible that several companies are present within one building – and therefore several establishments – that may jointly be regarded as one establishment. In short, this will be the case if there is a technical, organizational or functional connection between the establishments and they are located in each other’s vicinity.
This may occur in multi-tenant buildings, given the associated integral provision of services, and it is relevant for hotels that are (ever more often) part of these services. In the exemplary case of a multi-tenant building having a hotel and an office as separate lessees, these lessees may use common facilities such as sewage, waste storage and gas, water, electricity (technical connection) and staff, services or resources may be exchanged (functional connection). It may also happen in practice that one person or group has real control over the activities of both lessees (organizational connection), e.g. the owner of the multi-tenant building who has concluded a lease with the two businesses. The step towards qualification of the two separate businesses as one establishment when then be small.
The operator
After it has been established whether an establishment exists, the next question will be who qualifies as the ‘operator’ of the establishment and thus as the party that can be called to account by the law enforcer. What matters is who has de facto control over the business operations of the establishment, the use of the real property, and the activities to be performed. Legal control alone is not sufficient to be designated as an operator. It is the factual situation that matters.
In practice, it often appears not clear in advance who will be designated as the operator, since this qualification depends on the de facto control. For example, the arrangements made in the lease between the owner and the operator of the business (and compliance with these provisions in practice) will have an effect in this context. Also in the example mentioned above, it is not certain in advance who qualifies as the operator, since the hotel and the office may jointly form one establishment, and consequently there may be one operator who is responsible for the hotel and the office jointly.
In order to prevent uncertainty about the responsibility for the obligation to save energy, it is important that the parties make arrangements among themselves. Such arrangements about, among other things, the performance, the cooperation, the costs, and the reporting of the measures, may prevent a lot of uncertainty about the question who is responsible. After all, the operator is obliged to report once in four years about the measures taken, and the government has the option to enforce the law by an order subject to incremental penalty payments.
Energy-saving measures
In order to help the market, lists of acknowledged energy-saving measures were published in 2019. It can be assumed that an establishment meets the obligation to save energy if all the acknowledged measures on the list have been taken. There are different lists per sector of industry, including specifically for the hospitality sector. The measures concern the isolation of the building envelope, air-conditioning systems, obligations and cooling or elevator systems. Establishments are not bound by the measures on the list and may also take similar measures. This is subject to the condition that they can prove that the measures will have the same effect.
Summary
The obligation to save energy in the Activities Decree has been neglected for a long time. Nevertheless, we can assume that it applies to (most) hotels. However, it is not always clear in advance who is responsible for fulfilling the obligation to save energy. The main reason for this is that this qualification depends strongly on the actual circumstances, but also because the lessees of a multi-tenant building may qualify as one establishment, under certain conditions. This uncertainty can mostly be prevented by making clear arrangements between the parties involved and by observing these arrangements correctly. After all, the actual circumstances are decisive. The increasing focus of sustainability in combination with the enforcement priority makes it essential to monitor the obligation to save energy closely. Given the intended halving of CO2 emissions in 2030, a future tightening of the obligation to save energy is expected. With the arrival of the new Environment and Planning Act (Omgevingswet) in 2023, the obligation to save energy will already be refined in several respects. For example, the organizational connection will no longer be a requirement. In short, the obligation to save energy in the Activities Decree is also an area under development, which deserves the attention of hotel keepers.
This article was previously published by Hospitality Management.
