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01 abril 2021

Derecho corporativo y de negocios

ENERGY PERFORMANCE CERTIFICATE. THE CASE OF BUSINESS LEASE

Legislative Decree No. 48 on 10 June 2020 updated Italian provisions of law implementing European provisions on  energy efficiency and on the energy performance of buildings.

ENERGY PERFORMANCE CERTIFICATE. SOME DEFINITIONS

Legislative Decree No. 48 on 10 June 2020 updated Italian provisions of law implementing European provisions on  energy efficiency and on the energy performance of buildings.

The main purpose of the Italian provisions now in force is to “promote the improvement of the energy performance of buildings, takin into consideration the external local and climatic conditions as well as the provisions on indoor temperature and the cost efficient approach, optimizing the balance between costs and benefits for the community”.

Hence, our legal system gives high relevance to sustainability in its broader meaning, both environmental and social.

Such purpose is clearly detectable also in the establishment, under art. 4 Decree 48/20200 of the “National Platform on the energy performance of buildings”. Such organ has, indeed, the purpose of “giving to people, companies and the public administration information on the energy performance of buildings, on the best practices for effective energy requalification in term of costs, on the existing instruments for promoting the improvement of the energy performance of building, also with reference to the replacement of fossil fuel boilers with sustainable alternatives, and on energy performance certificates”.

Some of the innovations brought by Decree 48/2020 deal with the energy performance certificates, defined by Legislative Decree No 192 on 19 August 2005.

Currently, the energy performance certificate is defined in our legal system as “the document, drafted in accordance with the present decree and rendered by qualified and independent experts, that certifies the energy performance of a building by using specific indicators and gives recommendations for the improvement of energy efficiency” (article 2, lett. l-bis, Decree 192/2005).

The energy performance to be certified is “the annual amount of primary energy actually used or expected to be needed in order to meet the energy demand associated with a typical use of the building […]” (art. 2, let. c. Decree 192/2005). Moreover, the same provision clarifies that the energy performance “is expressed by one or more indicators that take into consideration the insulation of the building and the technical characteristics of the implants. Energy performance may be indicated as primary energy, renewable or not, or as a total sum of both”.

The main innovations brought by Decree 48/2020 on energy performance certificate concern the calculation method of the performance, the professional qualities and the assessment criteria to be used by technicians issuing the certificate, the site inspection needed for rendering the certificate, penalties and fines and online reporting by the Tax Agency to the Regions in cases of missing certificate. 

THE ENERGY PERFORMANCE CERTIFICATE IN CASE OF REAL ESTATE SALE AND RENT 

It is known that the energy performance certificate is needed for the transfer of real estate property (art. 6 Decree 192/2005 and amendments).

As far as the rent is concerned, the very same provision in its current wording, provides for the need of the energy performance certificate in case of “new rental agreement of buildings or real estate units” (art. 6 Decree 192/2005 amended by Decree 63/2013 converted with amendments by Law No. 90 on 3 August 2013).

It is, hence, excluded the obligation of obtaining the energy performance certificate in case of renewal or extension of rental agreement (such exclusion is limited to contract entered into before 6 June 2013).

In addition to the obligation of obtaining the energy performance certificate, the latter is to be attached to the rental agreements but not in case of rent of individual real estate units (art. 6, par. 3, Decree 192/2005 amended by Decree 145/2013, converted with amendments by Law No. 9 on 21 February 2014, and by Decree 48/2020).

The violation of the obligations related to the energy performance certificate is assessed by Italian Regions and determines the infliction, by the Region themselves, of penalties.

Concluding on this point, it is important to mention that in Italy there are also regional laws related to the energy performance certificate. In light of that, it is of utmost importance that each factual case is thoroughly analyzed under such laws.

ENERGY PERFORMANCE CERTIFICATE IN CASE OF BUSINESS LEASE AND A RECENT DECISION OF THE ITALIAN SUPREM COURT

In our legal system there are cases in which it is not always easy to assess whether the energy performance certificate is needed or not. Such cases may involve several contracts both typical and atypical. 

One of them is the business lease

The first obstacle that needs to be overcome in order to assess the need of the energy performance certificate is the factual qualification of a certain contract as a real estate rental agreement for business use or as a business lease (the business is defined by art. 2555 of the Italian Civil Code as “the complex of goods organized by the entrepreneur in order to conduct its business”).

In fact, the distinction among the two contracts may, sometimes, be difficult to detect. 

On this matter the Italian Supreme Court established with decision No. 3888 on 17 February 2020 the following two distinctive criteria: 

  • firstly, the pre-existence of a business organization of the goods leased is to be ascertained;
  • secondly, once the pre-existence of a business organization is ascertained, the parties’ intent is to be found. In particular, it is important to assess whether the parties wanted to lease the complex already organized or just the real estate, being, in this case, the other goods merely needed for using the real estate itself.

However, once assessed that the contract entered into by the parties is, indeed, a business lease, it seems agreeable the opinion according to which, this assessment is not sufficient in order to exclude the application of the provisions on energy performance certificate in real estate contracts. 

Indeed, a factual evaluation of all the elements related to the transfer of the usability of the real estate, within the business lease, are to be taken into account.

CLOSING REMARKS

In light of the brief framework described above, it is clear that the application of the provisions on energy performance of buildings is not, in fact, always easy to assess.

That is why it is of utmost importance that each factual case is thoroughly analyzed, also taking case law and scholars’ opinions into consideration.

It is our opinion that such analysis shall be conducted not only with the purpose of avoiding penalties and fines, but also being aware that the protection of sustainability is a real need acknowledged at both Italian and transnational level.

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This article does not cover every aspect of the topics with which it deals. It is for general informational purposes only and is not intended to constitute legal advice or a legal opinion and should not be considered as doing so. 

For any further information concerning the contents, please contact:

Ombretta Fabe Dal Negro - Senior Partner - Corporate and Business Law - China Desk - odalnegro@franzosi.com

Chiara Brighenti - Associate - Corporate and Business Law - chiara.brighenti#franzosi.com

Carolina Stefanetti - Associate - Corporate and Business Law - carlonia.stefanetti@franzosi.com

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