Question № 1: Obligations under Article 57 (2) from the Energy Efficiency Act
According to article 57, paragraph 2 from the Energy Efficiency Act (EE Act), the following facilities are subject to obligatory energy audits:
1. Production enterprises , which are not small and medium enterprise, as defined by art 3 from the Small and Medium Enterprises Act (SMEA);
2. Enterprises in the services sector, which are not small and medium enterprise, as defined by art 3 from SMEA
3. Industrial systems which consume more than 3000 MWh annually.
In accordance with article 57, paragraph 5 from EE Act, the owners of the enterprises and the industrial systems subject to obligatory energy audits are required to submit each year in the Sustainable Energy Development Agency (SEDA) declarations notifying their specific obligations under the Act. The declarations to be submitted by the legal entities, which are not small and medium enterprises according to art 3 from SMEA, i.e. within the scope of article 57, paragraph 2, points 1 and 2 from EE Act, may either be: (i) one declaration covering the energy consumption by all their facilities, or (ii) separate declarations for each of the facilities, irrespective of whether their individual energy consumption exceeds 3000 МWh annually, or not.
The declaration submitted by the legal entities, which are SME according to article 3 from SMEA, but have at least one industrial system which consumes more than 3000 МWh energy annually, i.e. within the scope of article 57, paragraph 3, point 3 from the EE Act, should fill in the declaration the actual energy consumption of the respective industrial system.
The entities covered by article 57, paragraph 2, points 1 and 2 from the EE Act must declare all their facilities, and for each facility a separate report and summary from an energy audit should be presented, including the facilities with energy consumption below 3000 МWh; for buildings which are not production facilities, a certificate for their energy performance should be issued. The entities within the scope of art 57, paragraph 2, point 3, have to carry out an energy efficiency audit for all facilities where energy consumption exceeds 3000 МWh annually.
Entities which are subsidiaries of foreign companies within the scope of art 57 from the EE Act, have to take into consideration that the law provides for the measures and activities to fulfill Bulgaria’s obligations towards the objectives for final energy consumption in the country, and thus, circumstances outside its territories cannot be taken into consideration. Therefore, only the facilities on Bulgarian territory which meet the definitions in art 57 from EE Act, will be recognized as obligated entities.
In the cases where operations are based on rental agreements, it should be taken into consideration that the owner of the rented facilities has greater influence on the assets management, and thus, has greater abilities to implement energy efficiency measures. The rent brings payments as part of the overall activities of owner, and hence, the obligations to implement the energy efficiency measures have to be met by the owner of the facility.
In case the owner of machinery and equipment consuming more than 3000 МWh annually, carries out industrial activities or construction or transportation to a site or building rented by another entity, it is the owner of the machinery and equipment that has to meet the obligations under art. 57, paragraph 2, point 3 from the EE Act.
The hypothesis related to rental agreement are of diverse nature subject to negotiations between the parties; hence, no universal approach can be elicited, but have to be examined by the energy efficiency consultants (qualified, trained and experienced in the subject matter), so that the best approach for the energy efficiency audit can be suggested.