Dutch minister misunderstands EU procedure

The Dutch announcement said that the European Commission had “ended the procedure to investigate if the Dutch energy label for homes complies with European rules”, adding that a potential annual fine of €90 million “is off the table”.

The Dutch system had come under fire because the process to determine the energy efficiency of a house can be done entirely online, without any physical checks on-site. Some argued that the Netherlands had not correctly transposed the Energy Performance of Buildings Directive into national law.

Minister Blok “had always had faith in the outcome of the procedure”, the Dutch press release said.

But a European Commission spokesperson told this website that the Netherlands was not off the hook yet.

It appears that the Dutch government confused an infringement procedure for not notifying the commission about its transposition, with a potential follow-up procedure about whether or not that transposition was not done correctly.

“Infringement procedure 2012/0388 concerned the failure of the Netherlands to notify transposition measures for all provisions of Directive 2010/31/EU,” commission spokesperson Anna-Kaisa Itkonen told this website in an emailed response.

“Following the latest amendments of the Dutch legislation (received in November 2015), the commission has concluded that the Netherlands have now complied with its transposition and notification requirements,” she added.

But there is a crucial nuance which apparently did not come across to the Dutch authorities.

“The fact that the infringement on full transposition is closed does not mean that the commission gives a blessing to the transposition of this directive in the member state concerned,” Itkonen continued.

“After checking if all the provisions of the directive have been transposed (which is what was decided today [Thursday]), the Commission is now checking if this transposition is correct.”

She added that commission services are holding an “informal dialogue” with the Dutch authorities through the so-called EU Pilot system, which is a sort of pre-infringement procedure.

The system allows the two parties to resolve the issue before starting an actual infringement procedure. After the commission has started the EU Pilot process, the member state has 10 weeks to reply. After that, the commission has ten weeks to assess the reply.

Only if that process is finished will the commission give its blessing for the transposed rules – or start an infringement procedure.

Last year, Dutch real estate agents told EUobserver that the Dutch system for getting an energy label was sensitive to fraud, because there are no independent experts that visit the house involved. The experts only assess digitally-sent proof of efforts to increase energy efficiency, like receipts or photos.

“You could upload photos of your neighbours' double glazing as if they were your own, and no one will visit you to check”, said Hester Jansen, a real estate agent in the northern city of Enkhuizen.