Non-residential: unchanged vis-à-vis the July draft

New single regime for residential with one optional exception for single family houses:

The whole residential building stock must reach, on average:

  • EPC ‘D’ class by 2033
  • ‘B’ class by 2040

Article 9(2)

Member States may choose to treat single family houses [but no longer multi-apartment buildings with ten building units and less] on a separate basis while ensuring that those which are sold, rented, donated or converted to residential from non-residential after 1 January 2028 achieve EPC ‘D’ class  within five years of the sale, rental, etc. (Article 9(2a))

It is not clear from the wording of Article 9’s paragraphs 2 and 2a whether single family houses can be decoupled from the average ‘D’ class obligation for the whole residential building stock, or whether any ‘gifts’ to single houses would need to be compensated by tougher requirements – an average EPC class higher than ‘D’ – for apartment buildings.

New provision targeting the need to obtain unanimous consent from co-owners for renovation of common elements concerning works caused by the MEPSs

A very significant demonstration of Council’s will to give teeth to the Directive’s game changing article.

Soft law on this topic has been around ever since the first Energy Efficiency Directive ten years ago under which member states had to “evaluate” and “if necessary” remove national rules and measures regulating decision-making processes in multi-owner properties. Nothing happened. The current EED Proposal has nothing new.

The EPBD that is currently in force has nothing. The Commission’s Proposal revising the EPBD contains soft law in the market barriers article:

2. Member States shall take appropriate regulatory measures to remove non-economic barriers to building renovation. With regard to buildings with more than one building unit, such measures may include removing unanimity requirements in co-ownership structures ... (Art. 15(2))

What neuters it is the “may”. Member states may do it … or not. Council has left that unchanged.

And yet, in the MEPS article, Council has just now inserted:

Member States shall remove regulatory barriers preventing the renovation of common elements and the replacement of technical building systems in multi-apartment buildings aimed at compliance with minimum energy performance standards, including approval procedures, addressing in particular the need to obtain unanimous consent from the co-owners, without prejudice to the property and tenancy law of the Member States. (Art. 9(2), 4th paragraph)

Not soft law. Hard law. Member states shall remove barriers by addressing in particular unanimous consent. How do you get around that other than by legislating the end of unanimous consent? As always, there’s the standard conferral-conscious “without prejudice to the property and tenancy law of the Member States”, but how do you ‘address’ the problem without changing the law?

In terms of respect for the principle of conferral (the Treaty has not conferred power on the EU to legislate housing policy or property law), what’s the difference between EU law changing national property law and EU law forcing member states to change their property law?

Full EPF Secretariat report including heritage buildings, financial incentives and inspections (electronic monitoring and control functionalities) and text of the latest Czech Presidency draft under epf22-43 of 27.09.2022