Italy: Mandatory energy audits for German companies at production sites in Italy

In a nutshell:

The Energy Efficiency Directive¹ has been transposed into law in Italy by the Legislative Decree no. 102/14. Article 8 of the Legislative

Decree 102/14 provides that large enterprises are required to carry out one energy audit by 22 December 2015 at their

production sites located in Italy and to repeat the audit every four years afterwards. The reporting date in the following years is 5 December every year.

The Italian National Energy Efficiency Agency of ENEA is responsible

for setting up a portal where enterprises subject to the audit

requirement can evidence that they met the said requirement. Financial penalties for the failure to conduct the mandatory audit range from EUR 4,000 to EUR 40,000. In November 2016 the press reported that the Ministry of Economic Affairs was to soon start sending penalty notices (to companies entered in the CSEA register, more details below).

This begs the question as to the circumstances under which German parent companies will be required to conduct an audit of their Italian subsidiaries. In this context, the aggregation of data of multiple companies (possibly even including data of the parent company itself) in the calculation of the size of the company is of utmost importance.

1. Obligation to carry out energy audits

The obligation applies mainly to large enterprises rather than small- and medium-sized enterprises. Large enterprises are exempted from the obligation if they implemented EMAS or ISO 50001 or EN ISO 14001 certified energy management systems, provided that such systems include an energy audit. Technical details are included in Appendix 2 of the Decree. The obligation covers also highly energy-intensive enterprises according to Article 39 of D. L. 83/12 and L. 134/12. All energyintensive enterprises are entered in the list of CSEA (Cassa per i

servizi energetici ambientali).

In D. Lgs. 102/14, as in the Energy Efficiency Directive, large

enterprises are defined as enterprises having

over 250 employees AND
a turnover of more than EUR 50 million OR.
Jahresbilanzsumme von mehr als 43 Millionen Euro.

The enterprise is then required to conduct an audit provided that the above conditions have been met in two consecutive financial years as of the date of compiling the annual financial statements. Consequently, the company should check every year whether – on the basis of data for the previous two-year period – it is required to conduct an audit by 5 December of the current year.

If the company is considered to be a “large enterprise” for the first or the second time and is included for the first time in the CSEA register, the obligation arises in the current financial year rather than the next financial year.

A detailed definition of a small- and medium-sized enterprise (SME) is also included in M.D. 18/04/2005. The provision contains also a regulation on when employees or sales revenue figures of other enterprises are added to the calculation of the size of the company.

1. An associated enterprise (impresa associata) is an enterprise in

which over 25 %of shares or voting rights are held by another

enterprise either solely or jointly with other enterprises. If the

shareholding exceeds 25%, data regarding employees and financial statements of the other enterprise in which shares are held are added to the calculation of employees and financial statement figures of the shareholding enterprise at the rate which corresponds to the percentage of shares held in that other enterprise (if the shareholding is 30%, the figures relating to employees and financial statements of that other

enterprise are added at 30%).

2. Affiliated enterprise (impresa collegata) is an enterprise in which

another enterprise holds a majority of voting rights which can be exercised during a general shareholders meeting OR
the portion of the voting rights held is so high that a
controlling influence can be exercised in the shareholders meeting OR
a controlling relationship exits (arising from a constitutional
document) which is permitted by law OR
another enterprise holds the majority of voting rights due to arrangements between the shareholders.

Therefore any subsidiary which is wholly owned by a large enterprise automatically qualifies as a “large enterprise”, too. It should be noted here that in its last explanations concerning obligations of large enterprises published in November 2016, the Ministry of Economic Affairs repeated its14 October 2015 opinion about foreign shareholdings.

The opinion reads that when determining the size of the enterprise

only the production sites of the enterprise and its affiliated enterprises located in Italy should be taken into account. The Ministry further holds that: If a foreign enterprise has many affiliated enterprises in Italy (impresa collegata), the affiliated enterprises are regarded in mutual relations as affiliated with each other based on the relationship with the parent company and thus their data are added.

In practice, this means that it should be checked whether a German parent company directly holds shares in multiple companies in Italy. In any case, the data of subsidiaries which fall under the scope of the definitions of „affiliated“ and „associated“ must be included in the calculation of the size of the company.

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¹DIRECTIVE 2012/27/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC