The "BACS" Decree (1) requires the installation of a "building automation and control system" to manage heating and cooling equipment. The building automation and control system is defined as "any system comprising all products, software, and engineering services enabling the efficient, energy-efficient, and safe operation of building technical systems through automatic controls and facilitating the manual management of these technical systems" (Article R.175-1 of the Construction and Housing Code).
The controlling of heating and cooling equipment will allow for:
- Monitoring, recording, and analyzing their energy production and consumption data,
- Adjusting them accordingly,
- Manually stopping them, and
- Autonomously managing one or more technical equipment.
Since January 1, 2025, such an automation and control system must be installed in existing commercial buildings whose heating and cooling equipment has a power greater than 290 kW. Until this date, only commercial buildings considered "new" (2) were subject to the obligations of the Decree.
The BACS Decree does not provide specific sanctions for non-compliance with this obligation. However, in addition to any applicable sanctions under the "Commercial Building Decree“ (Décret Tertiaire), non-compliance with the BACS Decree, revealed during the technical audit prior to the acquisition of a building, will necessarily impact the value and liquidity of the concerned building.
From January 1, 2027, the obligations resulting from the BACS Decree will apply to existing commercial buildings equipped with heating or cooling systems with a power greater than 70 kW. For these buildings, the obligation will apply earlier if the heating or cooling system is renewed before January 1, 2027.
For buildings whose heating or cooling systems are connected to urban networks, the power thresholds of 290 kW and 70 kW will be assessed at the exchange station level.
Article L.174-3 of the Construction and Housing Code tempers the obligation by providing that buildings are equipped "when it is technically and economically feasible."
To be exempt from this obligation, owners must demonstrate that the installation of a building automation and control system is not economically feasible, based on the criterion of a return on investment (ratio between installation cost and generated savings (3)) greater than ten years.
According to Article R.175-2 of the Construction and Housing Code, the obligation to install the automation and control system falls on the owner of the heating or cooling systems. Unless future Case law considers the installation of these systems as falling under Article 606 of the Civil Code, the cost of such installation, and in any case, the maintenance and repair costs, should be able to be re-invoiced to the tenant. The mention of these costs must, however, be expressly provided for in the lease's "charges" clause.
(1) The "BACS" Decree (for "Building Automation and Control System") is Decree No. 2020-887 of July 20, 2020, relating to the automation and control system of non-residential buildings and the automatic regulation of heat, as amended by Decree No. 2023-259 of April 7, 2023, concerning the automation and control systems of commercial buildings, whose provisions are codified in Articles R. 175-1 and following of the Construction and Housing Code.
(2) For the purposes of the BACS Decree, "new" buildings are those whose building permit application was submitted from:
- July 21, 2021, for buildings equipped with heating or cooling systems with a power greater than 290 kW;
- April 8, 2024, for buildings equipped with heating or cooling systems with a power greater than 70 kW.
- Conversely, buildings whose building permit application was filed before July 21, 2021, and April 8, 2024, will be considered "existing" under the BACS Decree.
(3) The methods for calculating the return on investment are defined in the Ministerial order of April 7, 2023 (https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000047422562).
