The point on the laws and regulations for enterprises, which are multpliées during the last three years.

energy Audit, decree “5 flow”, a plan for employee mobility: since 2015, the vote of the law on the energy transition (LTE) and the signing of the Paris Agreements, the business leaders may have the feeling that a new requirement environmental see the light of day as soon as they look elsewhere… right ? To make the point on the state of the law, we interviewed Aurore-Emmanuelle Rubio, a lawyer in the team Energy of CMS Francis Lefebvre Lawyers.

Express : Recycling, energy efficiency, mobility… with The business leaders may be a little disoriented in the face of the multiplication of their environmental obligations. How to see more clearly?

Aurore-Emmanuelle Rubio : The fields are actually many, but already we can simplify by recalling that there are two major categories of obligations to be imposed today in the companies : on the one hand, a duty of information on the actions under the energy transition and more broadly the environment, and on the other hand, the compliance measures that are more specific and are not products of the LTE, as for example the implementation of a mobility plan (article 51 of the LTE), or the duty to conduct an energy audit (Directive 2012/27/EU on energy efficiency), a topic on which we found a lot of questions lately.

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What is covered by this reporting obligation?

A-E A : The questions information can be found in what is called the management report (article L. 225-100 of the code of commerce) that shall submit to the general assembly of any limited company the board of directors or its management board. This report must include, to the extent that this is necessary for the understanding of the evolution of the situation of the company, the key performance indicators of a non-financial nature related to its specific activity, including information relating to environmental issues. For listed companies, it should also indicate the financial risks related to the effects of climate change, and the presentation of the measures that the company takes to reduce them through the implementation of a strategy on low-carbon (article L. 225-100-1 of the code of commerce).

Some companies (companies listed or not exceeding certain thresholds of turnover is 40 million euros for the net amount of the turnover of the companies listed and 100 million euros for the net amount of the turnover of non-listed companies – and workforce – 500 permanent employees), the more “important”, therefore, must be included in the management report, a declaration of extra-financial performance”. This statement includes information relating to the consequences on the changing climate of the business of the company and the use of goods and services produced by it, corporate social responsibility commitments in favor of sustainable development, the circular economy and the fight against food waste (article L. 225-102-1, III of the commercial code).

Concretely, how do I know what information to present?

A-E A : All is according to the profile of the company concerned. To understand what must be this statement, we recommend that you refer to the guide published by the Medef, which is very clear. It should also be noted that these disclosure requirements relate to a lot of companies but not all companies trade indiscriminately.

Finally, he should not forget to mention the duty of vigilance of parent companies and corporate donors order of the law of march 27, 2017. It requires companies with at least 5,000 employees within its borders and in its direct or indirect subsidiaries whose registered office is established on the French territory (10.000 if we include foreign) to establish and implement a plan of vigilance. This plan must include the due diligence measures that a reasonable own to identify risks and to prevent serious harm to the environment (among other things) a result of the activities of the company, the companies it controls, as well as of its sub-contractors or suppliers with which there is maintained an established business relationship (article L. 225-102-4, I of the code of commerce).

That risk-your in case of failure?

A-E A : When the annual report does not include the reporting of extra-financial performance or the environmental information required, any interested person may request the president of the court ruling in summary proceedings to order under penalty of a fine to the board of directors or the executive, as the case may be, to communicate such information (articles L. 225-102 et L. 225-102-1 of the code of commerce). When a corporation is in default to meet the obligations of its plan of vigilance, and that it is not satisfied, the competent court may order, where necessary under a periodic penalty payment, to abide by them (article L. 225-102-4,II of the French commercial code).

However, beyond these risks, it is also a question of image, vis-à-vis various audiences (investors, consumers, business partners, etc). Where the device gets interesting, is that it introduces the idea that a business plays a social role and that it is also the guarantor of good environmental practices of these partners. The environment and sustainable development have thus become a tool for the evaluation of businesses and pour these companies a true criterion of choice of economic development.

For example, companies are increasingly vigilant on the compliance of their trading partners, of environmental requirements and sustainable development. The company can even help its commercial partner to become compliant from an environmental point of view. Here is a very effective lever to change practices and mentalities.

Lawyer specializing in the issues of energy and environment, Aurore-Emmanuelle Rubio sees the context harden for businesses.

CMS Francis Lefebvre Avocats

You mentioned also of the obligations more specific or more focused. Which, for example?

A-E A : One of the topics on which we’re often asked is that of the energy audit, which is prior to the LTE. Any company with more than 250 employees or whose annual turnover exceeds 50 Million€ and balance sheet total of€ 43 Million is required to complete it, and this every 4 years, it being understood that the first audits had to be conducted before 5 December 2015 (article L. 233-1 of the French code of energy). Only the companies with a system of energy management certified, which provides for the carrying out of an audit (ISO 50001) are exempt.

If the scope of the audit is freely chosen by the company, however, it must cover 80% of energy bills (electricity, oil, gas, etc.) of the company. There is no obligation then to take steps to reduce consumption, but once you have them identified, to seek to optimize is a logical next step. The energy consumption represents a major cost for businesses. And outside of any consideration of environmental, reducing this cost is a matter of good management.

The LTE is acted on an incentive, by introducing for companies, electro-intensive, thus consuming a significant amount of electricity, the principle of a reduction of the electricity bill, granting them an abatement on the rate of use of public electricity networks (TURPE) which constitutes a non-negligible share of the bill. To qualify for this abatement, the companies must commit to adopt the best practices in terms of energy performance (article L. 351-1 of the French code of energy).

A point of attention all the same : the efficiency and the energy performance is a real trade. There has recently been a lot of certificates of energy savings cancelled, because there’s a little bit of everything among the actors of this market. The controls have clearly been reinforced, so it is best to be cautious.

outside of energy issues, are there other notable obligations?

A-E A : Another obligation, after directly this time of the LTE : the realization by companies with more than 100 employees on a site to develop a regional transport Plan Company (PDE) in order to streamline all travel related to the business of business : home-work trips, professional trips and trips of visitors. This is to reduce the emission of greenhouse gases.

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Is this to say that, overall, the constraints of energy transition harden?

A-E A : today, we are still in a phase in which the new obligations were put in place under The constraints of energy transition can only harden : in terms of energy savings, sustainable management, and electromobility in particular. This is what happened in the area of waste, which has experienced considerable changes over the last 10 years. This is not a movement, franco-French, but a european or even global. The SDGS (Sustainable Development Goals) of the united nations are one of many examples that we can give at the global level, where the united nations led the initiative “sustainable Energy for all”, which aims to ensure universal access to modern energy services, improve energy efficiency and increase the use of renewable energy sources.