The Council of State suspends the entire “decree tertiary”

DECRYPTAGE. By an order of July 11, the State Council has given the coup de grace to the decree relating to the obligations of energy performance in commercial buildings. Analysis.
Echec et mat ! After having suspended the first part of the decree of 9 may, relating to bonds for improvement of the energy performance of buildings (known as the “decree tertiary”), the State Council has just suspended the second pane. This is the most important, because it relates to the objectives of energy savings provided by the text for the so-called buildings (25% by 2020).


The court has been sensitive to all, or almost all, of the arguments of the federations of trade and hospitality (1) attacking the decree, finding that there was a “serious doubt” on the legality of the text, and that “the emergency condition provided for by the administrative code was completed” – which means that the judge has been sensitive to the arguments of the applicants on the fact that the text needed to be urgently put “out of harm’s way”.

The summary proceedings judge took into account all the arguments of the federations


The reasons for its decision, the court relied on several arguments, in fact those put forward by the federations to the appellants. As Batiactu, who attended the debates at the Council of State on the 6th of July last, you explained, he recalled that set this requirement of a 25% reduction of the energy consumption of buildings by 2020 was unlawful, to the extent that “the law imposes a time limit of five years between the publication of the decree [in this case, the may 10, 2017] and the date on which the obligations of energy performance must be met” (pursuant to article L. 111-10-3 the code of construction and housing).


This is not all : the text, to the judge, infringes the principle of legal security by setting goals too short-term (between may 2017 and January 2020) and not module not the obligations according to the type of buildings concerned. Another black spot, the absence of the decree, however, provided for by decree, so that “the people subject to the new obligations provided for by this text should already work without knowing the threshold alternative expressed in kWh/m2/year provided by the law”. In other words, it is impossible to enforce a decree even though the people concerned do not have before them all options available to you.

“It is back to less well jump”, regrets Philippe Pelletier


“A pity, really a pity, because the text, in spite of its blunders without a scope, pointed out to the major players on the path that will be followed, and that many have already borrowed. Back to less well-jump has never been a strategy that is worth !”, commented Philippe Pelletier, chairman of Plan Bâtiment Durable, in a press release. After having defended this decree in our columns, Philippe Pelletier, we affirmed the July 11, 2017 that “regardless of the decision of the State Council, the important thing was to maintain the momentum of the action. We will strive to continue to develop the charter of voluntary commitment, which came out in 2013, and a new version of 2017 will be the day, taking into account the evolution of the general context, including aspects of sobriety or carbon neutrality. It is necessary to continue to inform practices in the years to come”.


For its part, the federations, the applicants have responded with sobriety in a press release. “The Fps, Perifem and the Umih recall that they have also filed an appeal to the bottom bearing on the illegality of the decree and tending, for this reason, to its cancellation. This is a separate procedure from the application for interim measures-suspension, which is now considered. The Council of State is expected to rule on the merits in the coming months”, can we read there. According to the lawyer of the federations, the Council of State could put a year to make this notice.


(1) FPS, Perifem, Umih.

Leave a Reply