Countries within the EU are required to have implemented measures under the Energy Performance of Buildings Directive 2002 (and amended in 2010), with implications for developers, occupiers, owners and managers of buildings. The 2002 directive’s remit is broad. It includes requirements to set minimum energy performance requirements for both new and refurbished buildings, a feasibility assessment of alternative heating and energy supply systems for new buildings, and separate systems of certification for privately owned and larger public buildings.

Energy performance certificates (EPCs) and display energy certificates (DECs) in the EU have the potential to drive significant energy efficiencies in the commercial sector, where the land-tenant “split incentive” issue is seen as a substantial barrier to investment. As landlords typically do not feel the costs of energy consumption, there is little incentive for them to invest in efficiencies that would drive down these costs. Similarly, tenants on typically short-term leases are not incentivized to invest in energy-saving measures, with payback periods of sometimes up to 25 years.

While EPCs predict a building’s energy performance, they suffer from the perception that there can sometimes be a substantial disparity between that building’s predicted and actual energy performance. These can vary considerably according to the occupant’s operational characteristics, the way it uses the building and its energy demands. By contrast, DECs are intended to display a building’s actual energy usage rather than the theoretical EPC rating, but take-up is currently poor in the commercial sector.

Spain implements these EU measures as follows:

• The Energy Performance of Buildings Directive was given legal force in Spain by Royal Decree 235/2013 of 5 April. This royal decree was repealed by Royal Decree 390/2021 of 1 June, which regulates the basic procedure of the energy performance certification of buildings (“RD 390/2021”). It entered into force on 3 June 2021 and introduced the following modifications:
  • Mandatory on-site inspection: To grant the EPCs, the new regulations establish that an on-site visit by competent technicians is mandatory. Until now, it was common for some technicians to issue the EPCs without visiting the property in person, but now, at least one in-person visit is required. This visit must be made a maximum of three months in advance. Subsequently, the EPCs may be registered up to one month after the date of preparation. During the visit, the technicians will take all the necessary data and carry out verifications for the EPC.
  • Extension of the mandatory certification to other properties: In addition to the buildings that were already subject to the obligation to obtain EPCs (i.e., new buildings; buildings or parts of existing buildings that are sold or rented out to a new tenant; buildings or parts of buildings frequently visited by the public where a total useful floor area of over 250 square meters is occupied by a public authority), RD 390/2021 extends the scope to also cover the following buildings:
    • Buildings with a useful surface area greater than 500 square meters intended for administrative, health, commercial, public residential, educational, cultural, recreational, logistic, hotel or sports use
    • Buildings or parts of building occupied by a public administration with a useful surface area greater than 250 square meters, regardless of whether they are visited by the public
    • Buildings and single-family homes that are required to pass the Technical Inspection of Buildings or are going to carry out energy rehabilitation (All residential buildings older than 50 must complete the Building Evaluation Report, which includes EPCs.)
  • Validity of the EPC: Until now, EPCs were valid for 10 years unless some improvement work was carried out in the property and the owner wanted to renovate it for sale or rental. From 3 June 2021, if the energy rating is G, the validity will be five years. In all other cases (from A to F), it will continue to be valid for 10 years.
  • Obligation to disclose the energy rating in any advertisement for the rental or sale of a property: Both individuals and companies are obligated to disclose the energy rating when advertising the rental or sale of buildings, whether through real estate agencies, billboards, websites, real estate portals, catalogs, the press or similar.
  • Consequences of not having an energy certificate: There are three types of penalties — minor, serious and very serious — and the amounts of the penalties range from EUR 300 to EUR 6,000 as follows: 
    • Very serious infraction: falsifying information in issuing or registering certificates, acting as a certifying technician, or advertising a certificate that is not registered
    • Serious infraction: failing to comply with the calculation methodology of the basic certification procedure, not presenting the certificate to the autonomous community for registration, displaying a label that does not correspond to the actual certificate, and selling or renting a property without the seller delivering the certificate in force to the buyer or lessee
    • Minor infraction: advertising the sale or rental of a property that must have a certificate without mentioning its rating, not displaying the efficiency label when it is mandatory, issuing certificates without the minimum information, failing to comply with the obligations to renew or update the certificates, not incorporating the certificate into the building book and advertising the project’s rating when the finished building already has a rating
• The referred EPCs must include objective information regarding a building energy performance of a building and reference values, such as minimum energy performance requirements, to make it possible for potential owners or tenants of the building (or a unit of a building) to compare and assess its energy performance. They should also include recommendations for the improvement of the property’s energy performance.
• The EPCs evaluate the energy performance of buildings and give a qualification grade from “A” to “G,” with “A” being the most efficient and “G” the least efficient.
• The energy performance label included in the EPC applies to all of Spain. The label is to be included in any offer, promotion and advertisement in connection with the sale or lease of a building or building unit. It must be stated in every case whether it refers to the EPC of the project or of the completed or existing building. In no event shall the registration of the label as a mark be permitted.
• RD 390/2021 also establishes that new buildings occupied and owned by public authorities shall be nearly zero-energy buildings. The “nearly zero-energy buildings” requirements are set out in the Technical Construction Code approved by Royal Decree 314/2006.