ENGLISH summary EnergyClaim

EnergyClaim

SUMMARY: The EnergyClaim foundation was founded in 2011 te initiate negotiations with – and lawsuits against – the Dutch government and other parties. Since 2003 the governments of prime ministers Jan Peter Balkenende and Mark Rutte have consistently refused to obey several European laws (directives). These directives (EPBD, EED) aim to protect the environment and population by reducing the energy need of houses and buildings. The EPBD directive specifically prescribes that ’independent experts’ provide energy performance certificates that must accompany homes and buildings that are rented or sold. The objectives of the EPBD and EED are to reduce climate change, reduce CO2-emissions, reduce the dependence on fossil fuels, improve the quality of homes, improve the quality of indoor climate and comfort, stimulate the economy, and many more positive effects. The Dutch government has consistently sabotaged the implementation of the European laws in The Netherlands, and hindered the energy transition by more than 15 years of counterproductive policies. A specific group of companies specialized in energy savings is seeking compensation. These privately financed, independent experts have been hit in a disproportionately severe manner and suffered huge financial damages, which they seek to recover via the EnergyClaim.

The Dutch government has refused to properly implement the European Energy Performance of Buildings Directives 2002/91/EC and 2010/31/EU. This refusal has caused tremendous financial damage to a specific group of Dutch companies specialized in advising on energy savings.

As a result of the Dutch government’s behaviour, EPA-companies (Energy Performance Advisors focusing on energy savings in buildings) were seriously harmed since 2002. The government’s counter-productive actions resulted in tremendous setbacks, losses and even bankrupcies for many EPA companies. Countless jobs were lost.

The EnergyClaim Foundation is suing the Dutch government for damages, on behalf of victims of the unlawful behaviour of the Dutch government regarding EPA (Energy Performance Advice), energy labels and energy savings.

The EnergyClaim has grown to 100 companies claiming (an estimated) more than 80 million euro’s from the State of The Netherlands.

Between 2006 and 2013, the Dutch Council of State (Raad van State) warned the government on 6 occasions that the planned implementation of the EPBD was flawed.

In 2008, minister Van der Laan ordered (and paid for) mediation between The State and EnergyClaim. Mediation failed in 2009, because the government suddenly decided to offer no compensation whatsoever, in order to avoid setting a precedent. However, the government (officials) made an offer to pay the 3 negotiationg leaders of the EnergyClaim (committee) if they were willing to support (instead of fight) the government. This proposal was rejected by EnergyClaim, because it appeared to be pure bribery (corruption).

In 2010 the Dutch National ombudsman decided that the Dutch government had not acted appropriately towards EPA-companies. The ombudsman (a high counsel of state) encouraged the government to enter into talks with EnergyClaim to resolve the issues, but the government refused.

In 2011, the Amsterdam International Law Clinic of the University of Amsterdam concluded that EnergyClaim had a strong case, both on the basis of Dutch law and European law.

EnergyClaim summoned The State on 14 november 2012. Our case came before the Court of The Hague (the ‘City of Justice’). The 3 judges who decided to hear our case were taken off the case and replaced. After several further delays, the court hearing finally took place on 14 november 2013. The lawyer representing the State, mr. Ronald van den Tweel, stated that the EPBD had been implemented “on time and correctly” in The Netherlands.

(On 29 april 2015, the European Commission issued an additional Reasoned Opinion, in which The Netherlands was given until 28 april 2015 to comply with the provisions of the EPBD, including the introduction of an energy performance certificate for dwellings and buildings).

On 14 may 2014 judges L. Alwin, D.R. Glass en M.J. Van Cleef-Metsaars announced their verdict. Our demands were rejected and EnergyClaim was ordered to pay costs.

On 7 august 2014 EnergyClaim brought the case before the Superior Court of The Hague (Gerechtshof). Our appeal demanded that the Court overturns the verdict of the Lower court and concludes in favour of EnergyClaim. On 7 july 2015 EnergyClaim completed the delivery of all required documents to the High Court.

On 25 februari 2016 Dutch minister Stef Blok issued an announcement that the European Commission has approved the Dutch energy label system. If that were correct, that would mean that The Netherlands finally fulfilled its duties after 10 years of non-compliance. Journalist Peter Teffers’ explains how The Netherlands has still not complied with the EPBD in  https://euobserver.com/institutional/132469 .

On 22 july 2016 the European Commission started a 4th infringement procedure against The Netherlands, for non-compliance with the EPBD, specifically the failure to implement an energy performance certificate that complies with the EPBD.

The Superior Court of The Hague held a hearing on 23 january 2017, in which the State maintained its view that the EPBD was implemented on-time and correctly, and that the Dutch energylabels are legally valid. EnergyClaim submitted proof of the opposite to the court, but the court rejected 7 important documents which EnergyClaim had submitted to disprove the State’s arguments.

On April 11, 2017, the Superior Court ruled in favour of the State. The EnergyClaim was rejected primarily due to the absence of ‘relativity’.

EnergyClaim invokes Dutch law (BW art. 6:162)  to claim the damages that the government has caused by acting unlawfully. But about 90 years ago the lawmaker added the ‘relativity’ aspect to the law (BW art. 6:163). The concept of relativity is a legal issue, part of Dutch law and EU-law, which protects the State against damage claims. EnergyClaim is convinced that it satisfies the relativity requirements, but the State and courts say that this is not the case: The EPBD does not concern or protect the interest of Energy Performance Advisors (EnergyClaim participants), who are qualified and certified to make energy performance certificates as prescribed by the EPBD.

In fact, the EPBD cannot be implemented without the certified EPA-companies. And the Dutch government directly told the certified EPA-companies that they would be the only parties who can issue energy performance certificates.

On July 11, 2017, EnergyClaim put the case before the Supreme Court. On August 11, 2017, the Supreme Court (Hoge Raad) announced that it would handle the case.

On 19 october 2018 the Supreme Court (Hoge Raad) upheld the decision of the Superior Court. In a bizarre judgement, the Supreme Court compeletely misinterpreted and misrepresented the EnergyClaim case. In its summary, it refers to the plaintiffs as ‘recognized experts’ who issue energy labels. The term ‘recognized expert’ (erkend deskundige) was not introduced in The Netherlands until late 2014. And the ‘recognized expert’ does not issue energy labels; he plays only a superficial role and only earns a few euro’s per energy label at best. The Supreme Court also provided little or no motivation or explanation of its decisions to reject the EnergyClaim.

On 18 april 2019 EnergyClaim introduced the case at the European Court of Human Rights ECHR in Strasbourg.

SITUATION APRIL 2019:

In the meantime, the EPBD has still not been implemented properly by the government of The Netherlands. The waste of energy and the high CO2-emissions continue. The ‘climate issue’ was an important aspect of the coalition talks which formed the present Dutch government. The man who put together a new government in 2017 is Gerrit Zalm. Mr. Zalm was the ex-minister of Finance and ex-Deputy Prime Minister in 2003 when the Balkenende government decided to destroy EPA-companies, end many Dutch energy savings policies, and refused to comply with the EPBD.

The EPBD has still not been implemented correctly by The Netherlands. The European Commission is still studying the situation as part of the 4th infringement procedure against The Netherlands.

THE EPBD:

The Dutch government has not implementd article 7 of the European Energy Performance of Buildings Directive EPBD (2002/91/EC) in accordance with the directive. Article 7 concerns the right of an (interested) buyer or renter of a building to be informed about the energy performance of the home or building by means of Energy Performance Certificate, which includes an objective, professional advice on the costs, benefits and effects of measures that will improve the energy performance. The directive aims to stimulate energy savings in buildings. The ideal moment to apply energy saving measures is the transaction moment, when a home gets a new owner or a new user. The Energy Performance Certificate is meant to stimulate awareness, interest, desire and action that lead to energy saving measures.

The EPBD is based in large part on Dutch practices which were already in place in 2002, including EPA: the Energy Performance Advice. In fact, the energy performance certificate which should accompany any building that is offered for sale or for rent, contains the same information as an EPA. An EPA is a professional and objective analysis of the energy performance of a building or house, including an advice on how to improve the energy performance in a responsible way. An independent, objective EPA enables the owner or user to improveme a building in a responsible manner. An EPA is important, because it provides a crucial cost-benefit analysis, and it helps to prevent damage to the building or its internal climate.

The Dutch government announced and told certified EPA-companies on several occasions since 2003 that they would be the parties who would issue energy performance certificates, on the condition that they continued to be certified for the appropriate national guidelines and norms.

So, an EPA is the logical first step towards reducing the energy demand of a building. An EPA, or energy performace certificate, gives the reader an insight into the current energy performance of a building. An EPA or energy performance certificate also provides an advice on the cost-effective measures that can be taken to improve the energy performance in a responsible manner. The Dutch government had introduced EPA as ‘the cornerstone’ of the policy for improving the energy performance of homes and buildings.

For reasons which are still unclear, the Dutch government decided to hurt the EPA-sector, starting in 2002. The government gradually ceased the promotion, stimulation and development of EPA, and virtually stopped stimulating energy savings with a subsidy-scheme (that was a clever, self-financing long-term policy of the government). The market demand for EPA should have been more than 50 million euros per year, but the demand dried up after 2003. EPA-companies were financially damaged and many of them ceased operations.

In 2006 The Netherlands should have implemented all of the EPBD, including energy performance certification of buildings. But it failed to do so, citing the undesirable “administrative costs” as the main argument. Curiously, the government ignored the tremendous benefits of promoting energy savings for the economy, the citizens, and especially the environment.

In 2006 the European Commission criticized the Dutch government for not implementing EPBD article 7, and rejected the arguments presented by the Dutch government. The Dutch government then grudgingly implemented EPBD article 7, but in a “minimalistic” manner. The government decided to “split” an EPA into an “energy label” and a “tailor-made (customized) advice” (effectively an EPA). Only the energy label would be obligatory when a home or building is sold or offered for rent. The “customized advice” is an extra option for those who want a detailed EPA to determine the best approach to improving a house.

Since the end of 2007, hundreds of organizations invested in certification (many for the second time) to make EPA’s and issue energy labels. They jumped at the renewed market opportunity. Most of them did so in good faith, believing that the demand for their services would justify the effort and investment.

But the result of the “minimalistic” implementation was that in 2008 the Dutch system of “energy labels” encountered much resistance and was effectively rejected by the market. The officially prescribed labels have many shortcomings, including serious quality issues which undermine their credibility.

Although energy labels are ‘obligatory’ by law, there are no sanctions (fines) if people disobey the law. The most peculiar aspect of the law was the decision to make non-compliance an option for realtors, renters and sellers of homes. If they chose to ignore the “law”, there are no sanctions. So effectively there is no need or incentive to obey the law!! Fewer than 16% of homes were sold with an energy label! (in 2008) And the image of the energy label continued to be negative, because of the serious (obvious and hidden) faults in the system.

The government argued that a systems of sanctions was not necessary, because it would stimulate the market to comply with the law in other ways (awareness campaigns and communication, subsidies, connected policies such as a link between energy performance and taxes, etc.). But as the government itself had sabotaged the quality and effectiveness of energy labels, the (limited) stimulation had little effect. In practice, over 80% of rentals and sales of homes took place without an energy label being involved.

The Dutch government announced in 2007 that accreditation was a requirement for the energy label to be legally recognized.

We were told that Certification Institutions would be accredited by the Council of Accreditation (Dutch: Raad voor Accreditatie) during the third quarter of 2007. But the Council of Accreditation refused to accredit any organization for the certification of companies making energy labels. In fact, it judged the energy label system to be “non-accreditable”. But the marktet was told in 2007 that 4 companies (IKOB-BKB, Kema (now Dekra), Kiwa and SKW) were accredited. Subsequently, the entire market was misled to believe that the energy label system complied with the law.

The Dutch government had chosen a wrong path but insisted on pushing ahead anyway. The government encouraged and authorized the implementation of an unaccredited system of energy labels, issued by companies that were certified by unaccredited ’certificating institutions’.

This resulted in the making of more than 2.5 million unaccredited and therefore invalid energy labels, primarily for rental homes owned by housing corporations. (Note: finally, in 2013 the Council of Accreditation accredited 5 Certification Institutions for the ‘scope’ of energy labels. But, according to a study by EnergyClaim, there are at least 12 reasons why energy labels have been, and are still legally invalid). The courts refused to Judge these points.

The Dutch government in 2008 reacted to bad publicity by announcing that a “new energy label” would be introduced in January 2009. That did not happen. A new minister announced that the “renewed” label would be introduced in October 2009 (probably). Finally, in 2010, a totally different energy label was introduced, in spite of many warnings that it (again) had serious shortcomings and the accreditation problems persisted. Indeed the market did not respond well, and in 2011 the government announced that a(nother!!) new label would probably be introduced in 2012.

In mid-2009, the government finally provided some stimulation for EPA and energy labels in a somewhat more serious way. It introduced a subsidy for home owners who bought a ‘tailor-made (custom) advice’ (similar to EPA) with an energy label. Unfortunately, a substantial portion of the available subsidies was wasted. Many millions of euros were not paid as subsidies to home-owners seeking advice, but given to a small group of intermediaries/companies who promised to hand out a ’free’ advice to home owners.  As a result, the demand for the services of EPA-companies virtually ceased – again - in 2010. The Dutch National ombudsman confirmed the improper use of the subsidies, and recommended that the government financially compensates EPA-companies who suffered damages. The government ignored the recommendations by the ombudsman and refused to compensate.

Another irritating obstacle to progress was that (some departments of) the government decided around 2004 to drop the terms “EPA” and Energy Performance Advice. The EPA was renamed “maatwerkadvies” (tailor-made advice). This confused consumers even further, because in fact the “tailor-made advice” is not necessarily objective or optimal. The strict rules pertaining to the tailored advice forced EPA-companies into a ‘straightjacket’ of procedures which hampered the objectivity and customer-friendliness . Obviously EPA-companies objected to the obligatory rules for advising companies. Some even redicule the rules.

Since 2000, the Association of Energy Performance Advisors (AvEPA) fought for the continuity and effectiveness of EPA. As a result, the term EPA has survived and continues to be used, even by the market and most government departments.

The EnergyClaim started in 2007, when it became increasinly clear that the Dutch government would not comply with the EPBD-directive, and the damage to EPA-companies would continue to increase. The EnergyClaim committee sought compensation and justice for the victims of the Dutch government’s behavior and counter-productive policies. Hundreds of companies have been damaged.

In april 2009 a mediation process between EnergyClaim and the Dutch ministry of Housing, Spatial Planning and the Environment failed. The government wanted (and paid for) mediation, and during the first 2 sessions it clearly indicated an intention to to reach an agreement and compensate us. But then the government changed its attitudes by 180-degrees and decided that it would not offer ANY compensation to the companies that were hurt by its counterproductive behavior and sabotaging policies. Therefore EnergyClaim is trying to achieve compensation for the victims by seeking publicity and parliamentary interest, and taking the legal initiative against the government of The Netherlands.

Recently, two governmental organizations have studied the quality of energy labels. They both conclude that the Dutch system has major flaws. The major concern is the lack of accuracy of the prescribed methodology. A home can be ‘correctly’ judged to have up to 3 different classifications (energy labels) on a scale of 7. The inaccuracy is primarily the result of the prescribed methodology (with all its peculiarities and shortcomings) and the obligatory calculation software.

The government and several influential parties have often blamed the problems with energy labels system on the inspectors or advisors who issue the labels. This is largely a malicious allegation, because the official rules regarding energy labels are so rigid and illogical that inaccuracy is effectively stimulated. The official system actually discourages quality and effectiveness. In spite of the stipulations in the EPBD Energy Performance of Buildings Directive of the European Union, the energy labels in Holland may be issued by companies which are neither expert, nor independent. For example, housing corporations are permitted to issue their own labels! And plumbers or energy suppliers may also issue labels and ‘tailor-made advice’ for their customers, which they may then use to push their other products.

On October 5, 2009, government minister Van der Laan informed the Dutch parliament that improvements have been made to the methodology and layout of energy labels. Effectively, he admitted that the system had been flawed and ineffective.

Pieter Levenbach, the chairman of EnergyClaim, asked the Dutch National Ombudsman to have a look at the Government’s behavior several times since 2004. The ombudsman refused, on the grounds that he is not permitted to judge or criticize government policy. But in 2009, after the failed mediation process, the new ombudsman Dr. Alex Brenninkmeijer was prepared to study and judge the behaviour of the government towards EPA-companies. In October 2010, the Dutch National ombudsman published his analysis and conclusions regarding complaints by EnergyClaim. He criticized the government for the way in which it treated the Energy Performance Advisors and advised the (new) minister of Internal Affairs Mr. Piet Hein Donner to enter into talks with EnergyClaim in order to seek solutions to the problem.

In February 2011, EnergyClaim had a meeting with the Director General Mark Frequin of the ministry of Internal Affairs. On behalf of his minister mr. Frequin informed EnergyClaim that the Dutch government maintains its view that it has not acted incorrectly towards EPA-companies and is not liable for the alleged damages.

In 2010 the EPBD was ‘recast’ by the European Commission to become more detailed, more compelling and more ambitious. The EPBD-recast has the code 2010/31/EU. The renewed EPBD emphasized the duties of EU-member states to comply with the EPBD 2002. On April 7, 2011, the European Commission issued a third ‘Letter of Formal Notice’ to The Netherlands with regard to the new directive, because the Dutch government continued to refuse a correct and timely implementation of the EPBD.

The EnergyClaim became a registered foundation in 2011. In 2012 it started a legal procedure against the State of The Netherlands for compensation on behalf of more than 75 companies.

In December 2011, EnergyClaim welcomed the new Dutch minister of National Affairs, Mrs. Liesbeth Spies, who succeeded Piet Hein Donner as minister of Internal Affairs responsible for housing issues. Mrs. Spies was quite familiar with the way in which the government has treated EPA and energy savings. She had been a member of parliament for the Christian Democratic Party (CDA) for many years, and was well aware of the peculiar behavior of the Dutch government since 2002 with regard to the energy performance of buildings.

Disappointingly, minister Spies informed EnergyClaim that she would not enter into a dialogue with EnergyClaim.

In November 5, 2012, Mr. Stef Blok became the Dutch minister responsible for housing (and EPBD-implementation). Mr. Blok tried to convince the Dutch parliament that the energy label system should be enforced by law. The parliament refused.

Mr. Blok then implemented a system whereby all homes are given an ‘indicative’ energy label, whereby home-owners may enter additional information via an interactive website, so that they can make their own energy labels. In May 2013, Mr. Blok had a (quick) meeting with EU Energy-commissioner Guenther Oettinger to inform him of the Dutch intentions. Apparently, they agreed that the European Commission will receive a new Dutch proposal to comply with the EPBD-obligations in 2014. The European Commission said that it needed to see the formal Dutch proposal before it could respond to its content.

In the mean time, The Dutch government has gotten away with not implementing the EPBD directive(s) properly. Minister Stef Blok is fully aware that the Dutch government is risking a fine of up to 90 million euro’s (per year) from the European Union. He informed the Dutch parliament about this on May 13, 2013.

The Dutch government and its attorney, Mr. Ronald van den Tweel of Pels Rijcken & Droogleever Fortuyn lawyers, have told the Court of The Hague on 14 november 2013 that The Netherlands has implemented the EPBD-directives in a timely and correct manner. But that is not the truth:

On 29 november 2013 minister Stef Blok informed the Dutch parliament that the European Commission had initiated TWO PROCEDURES against The Netherlands: one for the delays of the implementation of the revised EPBD 2010/31, and a second procedure for the incorrect implementation of both the original EPBD 2002/91 and the revised EPBD 2010/31.

The Netherlands has received “reasoned opinions” from the European Commission regarding BOTH procedures. These, as we understand it, are the formal start of legal procedures to ensure that The Netherlands will finally comply with the European Union’s laws.

EnergyClaim is pleased that the European Commission, as well as the Dutch National Ombudsman, have effectively confirmed the validity and arguments of EnergyClaim.

On 24 april 2014, Dutch minister Stef Blok reported to the parliament that he had spoken to EU-Commissioner Gunther Oettinger on 2 april 2014. Mr. Blok wrote that if the Dutch parliament approves his proposed new energy label system by june 2014, the European Commission will not take both infringement cases to the European Court of Justice. The letter by Mr. Blok was formulated unclearly.

On 1 july 2014 the Dutch parliament apparently approved Mr. Blok’s plans. EnergyClaim is convinced that the plans do not satisfy the EPBD and that the European Commission has no choice but to take the matter to the European Court of Justice.

In 2016 Dutch minister Stef Blok said that the European Commission had approved the Dutch energy label (system) and that there would be no fine, but that announcement was untrue. See https://euobserver.com/institutional/132469

As per 15-5-2019, the European Commission has still not approved the Dutch energy label system.

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Holland rejects EU buildings energy law  

(Environmental Daily, 7 october 2005)

The Dutch government has sparked surprise and anger by reneging on new EU buildings energy efficiency rules and calling for their renegotiation.

The unprecedented move is a serious challenge to normal EU legal procedures. It threatens to undermine implementation of one of the bloc’s key policies on climate change.

In a terse statement released in late August, the Dutch government said that due to “high administrative costs” of implementing the directive the cabinet had decided against doing so “in the short term”. It would also contact the European Commission to see if the law could be adapted.

A spokesman for the Dutch environment ministry said that a new study had put the cost of implementing the directive at ¬80m per year, ¬50m of which would be paid by companies and ¬30m by households. “The problem is not the goal, it’s the methods”, he told Environment Daily. The key factor is the directive’s demand for energy certification for all buildings, he added.

The energy performance of buildings directive, or EPBD, was passed in 2002. Member states still have until 4 January next year to transpose it into national law. As well as energy certificates for all buildings it requires regular inspections of heating and air conditioning systems and sets standards for buildings energy performance.

The full implications of Holland’s move are only now sinking in. Many Dutch energy specialists seem to have discovered the change late after returning from holidays. The dominant reaction of several contacted by Environment Daily remains one of complete
surprise.

In Brussels, however, there is also anger. Europe’s growing energy efficient goods industries are incensed at what one called “this scandal”. The sector is trying to find out what produced the sudden change of heart in The Hague. It is seeking reassurance from the European Commission that the move will not be allowed to stand.

Early indications are that the Commission will indeed resist. Renegotiating any directive at a member state’s request and even before the transposition deadline would be “unthinkable”, an official told Environment Daily.

The buildings directive is a “cornerstone” of EU efforts to combat climate change through energy savings and is “being taken extremely seriously” by member states, the official said. “We have no signals from other countries that they’re not implementing”, though some
look set to take advantage of clauses allowing up to three years’ delay before full implementation of the directive’s energy certification and inspection requirements.

If the Dutch government maintains its refusal beyond the 4 January deadline then the Commission will start infringement proceedings, the official said. Until then, however, it can do nothing in a legal sense.

Precisely how the Dutch government came to make its U-turn remains unclear. However, observers agree that the general driving force is a tide of nationalism now on the rise throughout Europe – especially since Dutch and French voters rejected the draft EU constitution this summer.

Since the murder of maverick politician Pim Fortuyn in 2002 Dutch politics have grown increasingly provincial, claimed Donald Pols of Friends of the Earth Holland.

“Cost is becoming the overriding principle in cabinet decisions,” he complained. “Anything that doesn’t have a short-term payback is rejected”.

“Since the [EU constitution] referendum the Dutch government wants to be seen as critical of anything coming out of Brussels”, added a European Commission official. “I’ve not heard of something like this in 20 years”, he said. The Dutch move has sent a “devastating political message”.

Source:
Environment Daily 7 october 2005

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