DPE and the Tertiary Decree in Commercial Leases: Obligations and Issues in 2026

Must an institutional landlord that owns a 5,000 m² office building fund the replacement of the boiler room alone in order to meet the targets of the Tertiary Decree, or can it pass the cost on to its tenants? Does a property investment company (foncière) whose commercial premises have an energy performance certificate (diagnostic de performance énergétique, DPE) rated F see its rental value threatened at renewal? And does a company renting tertiary-sector floors risk a penalty if it does not report its consumption on the OPERAT platform? These questions are no longer theoretical: the first binding deadlines are approaching, and the dividing line between landlord and tenant remains unclear in a majority of leases signed before 2020. This guide sets out the energy obligations attached to commercial leases, the allocation of compliance works, the applicable penalties and the effect of the DPE on rental value and on renewal.

Three schemes not to be confused

The first error, common among asset managers and corporate real estate departments alike, is to mix up obligations that follow distinct logics. The DPE, the Tertiary Decree and the environmental annex coexist without any of them replacing another.

The DPE in commercial leases

The DPE is a document that assesses a building's energy consumption and its greenhouse gas emissions, with a rating from A to G. Governed by Articles L.126-26 et seq. of the French Construction and Housing Code (CCH), it must be drawn up on the sale or letting of most buildings, including tertiary buildings. It is valid for ten years.

One point deserves clarification, as it generates a great deal of confusion. The progressive ban on letting “thermal sieves” (passoires thermiques: dwellings rated G, then F, then E), introduced by the Climate and Resilience Law (Law No. 2021-1104 of 22 August 2021), applies to residential dwellings, not to tertiary premises. There is currently no statutory ban on letting commercial premises on account of their DPE rating. Premises rated F or G remain lawfully lettable. This does not mean that the DPE has no consequence for a commercial lease, as will be seen with regard to rental value.

The Tertiary Decree and the Eco Energy Tertiary scheme

The Tertiary Decree is Decree No. 2019-771 of 23 July 2019, made pursuant to Article 175 of the ELAN Law (Law No. 2018-1021 of 23 November 2018). It establishes the Eco Energy Tertiary scheme (dispositif Éco Énergie Tertiaire, DEET), codified in Articles R.174-22 et seq. of the CCH.

Its scope is precise: it applies to buildings, parts of buildings or groups of buildings housing tertiary activities over a floor area of 1,000 m² or more. The scheme imposes a trajectory for reducing final energy consumption:

• 40% by 2030
• 50% by 2040
• 60% by 2050

These percentages are calculated against a reference year, freely chosen from among the years after 2010, on the basis of twelve months of consumption. Instead of using a reference year, the obligated party may aim for an absolute consumption value, set by category of activity in the so-called “Absolute Values” orders (the “Method” order of 10 April 2020, supplemented by the successive “Absolute Values” orders).

Annual reporting of consumption is made on the OPERAT platform (Observatory of energy performance, renovation and tertiary-sector actions), managed by ADEME (the French Agency for Ecological Transition), before 30 September each year, for the consumption of the previous calendar year.

The environmental annex, or “green lease”

The third scheme, often forgotten, is the environmental annex, provided for by Article L.125-9 of the French Environmental Code and Decree No. 2011-2058 of 30 December 2011. It is mandatory for leases of premises of more than 2,000 m² used as offices or shops. This annex organises the exchange of information between landlord and tenant on actual consumption and on the energy improvement works envisaged. It is the natural contractual vehicle for managing the obligations under the Tertiary Decree, but it does not replace them: a 1,500 m² building is subject to the Tertiary Decree without being subject to the environmental annex.

Who must act? The allocation between landlord and tenant

This is the heart of the matter and the main source of future disputes. The Tertiary Decree did not itself settle which of the landlord or the tenant bears the obligations and the works.

An obligation shared by law

The text treats both the owner and the tenant as obligated parties. In other words, the obligation to reduce consumption and to report it falls jointly on both. In practice, the allocation of tasks is a matter for the contract: it is for them to designate, in the lease or its environmental annex, who manages the OPERAT reporting, who supplies the consumption data and who carries out the works.

This structure creates a de facto joint liability towards the authorities. A foncière cannot rely on its tenant's silence to justify a failure to report, and vice versa. The logic therefore requires documented cooperation, which explains the growing importance of precise clauses.

The dividing line for works

To organise responsibilities, an operational distinction is needed between three categories of action.

Actions on the building fabric and on structural technical systems (roof insulation, replacement of window frames, replacement of a central boiler, refurbishment of an air-handling unit) typically fall to the landlord, because they affect the structure and the permanent equipment of the building.

Actions on equipment linked to the tenant's operations (lighting in private areas, office equipment, systems specific to the business) and on user behaviour (setting temperature set-points, switching off workstations, optimising operating hours) fall to the tenant, who alone controls the actual use of the premises.

Monitoring and metering actions (installation of sub-meters, building management systems, feeding data back to OPERAT) are shared and are best organised as soon as the lease is concluded. The obligations specific to automation and control systems are detailed in our article on the BACS Decree and mandatory building management systems (GTB).

Take a concrete example. A services company occupies two floors in a 4,000 m² office building. Reaching the 40% target in 2030 requires the replacement of heating and cooling production (landlord's works), the replacement of lighting with controlled LEDs in the private areas (to be discussed depending on who funded the fit-out) and a reduction in winter heating set-points (the tenant's use). Neither party can reach the trajectory alone.

Article 606 of the Civil Code and the Pinel Law

The financial allocation is not negotiated in a legal vacuum. The Pinel Law (Law No. 2014-626 of 18 June 2014) and its implementing Decree No. 2014-1317 of 3 November 2014 introduced into the French Commercial Code mandatory rules on the allocation of service charges and works.

Article R.145-35 of the French Commercial Code prohibits charging the tenant with expenses relating to the major repairs (grosses réparations) referred to in Article 606 of the French Civil Code, as well as the fees relating to those works. Article 606 covers in particular main walls, vaults, beams, entire roofs and retaining walls.

“Major repairs are those of the main walls and vaults, the re-establishment of beams and of entire roofs. Those of dykes and of retaining and enclosure walls are also major repairs, in their entirety. All other repairs are maintenance.” (Article 606 of the French Civil Code)

The consequence is direct: heavy energy compliance works that concern the structure or major works (complete re-roofing with insulation, replacement of a central heating installation) cannot be recharged to the tenant through service charges. Nor can the landlord, in a lease concluded or renewed after 5 November 2014, circumvent this rule by means of a general clause transferring charges. By contrast, improvement works falling within maintenance or use may, subject to conditions and in a transparent manner, be the subject of a negotiated sharing. The notion of major repairs and its application to commercial leases is discussed separately in our article on Article 606 of the Civil Code and the commercial lease.

Article L.145-40-2 of the French Commercial Code also requires the lease to include a precise inventory of the categories of charges, taxes, duties and fees, with their allocation, together with a forecast schedule of the works the landlord envisages over the following three years. This forecast schedule is the natural vehicle for announcing an energy renovation programme.

The practical obligations to meet in 2026

The OPERAT calendar

The annual declaration on OPERAT is the first reflex. Each year, before 30 September, the obligated party reports the previous year's consumption and, the first time, its reference year and the areas concerned. An individualised dashboard, called “Eco Energy Tertiary”, then shows progress towards the target.

Verification that the targets have been met takes place in stages. The first major milestone remains the 2030 deadline. But waiting until 2029 to act would be a management failure: heavy works involve study, tendering and execution lead times measured in years, and consumption data must be made reliable well in advance. In 2026, a prudent landlord will already have fixed its reference year, secured the feed of data and budgeted its works programme.

The DPE and information for the tenant

The DPE must be annexed to the commercial lease when it is concluded and given to the prospective tenant. It also feeds the contractual debate: a tenant who discovers after the event a poor energy rating may legitimately plead a failure to inform it of foreseeable energy costs. For a building subject to the environmental annex, the DPE is combined with the obligation to exchange information on actual consumption. The other diagnostics that may be required when the lease is concluded are listed in our guide to the mandatory diagnostics for commercial leases.

Penalties and legal risks

Penalties under the Tertiary Decree

The scheme provides for a graduated response, codified in Article L.174-3 of the CCH. Where data are not transmitted or the trajectory is not met, the authorities first send a formal notice (mise en demeure). If the obligated party does not regularise its position within the time allowed, a second formal notice may be published on a State website, on a “name and shame” basis. This reputational risk is far from negligible for a listed foncière or for a retail brand concerned about its image.

Failing regularisation, an administrative fine may be imposed, capped at €1,500 for an individual and €7,500 for a legal entity. The amount may seem modest in relation to real estate budgets, but it is assessed per building and is cumulative with reputational exposure and, above all, with the loss of value of the asset.

Contractual and liability risks

Beyond the administrative penalty, the most likely disputes will arise from the lease itself. Two situations emerge.

First, the dispute over the allocation of costs: a landlord who attempts to recharge to the tenant works falling under Article 606 risks having the clause deemed unwritten and having to repay the sums wrongly demanded. Second, breach of the duty to cooperate: a tenant who refuses to provide its consumption data, thereby preventing the OPERAT declaration, incurs contractual liability towards the landlord, who may claim against it for the penalty incurred and the loss suffered.

The impact of the DPE on rental value and renewal

This is where the long-term financial stake lies for institutional landlords and foncières.

DPE, obsolescence and rental value

Even without a ban on letting poorly rated tertiary premises, energy performance directly influences market value. An energy-intensive asset suffers a growing discount, a phenomenon now referred to as “green obsolescence” (“brown discount”). Large occupiers build environmental criteria into their property policies, and a building rated F or G is harder and slower to let, and at a lower headline or effective rent once incentives are taken into account.

The rental value of commercial leases is determined according to the criteria of Article L.145-33 of the French Commercial Code: characteristics of the premises, intended use, the respective obligations of the parties, local commercial factors and the prices commonly charged in the neighbourhood. Energy performance does not appear there expressly, but it runs through several of these criteria. The “characteristics of the premises” and the “respective obligations of the parties” allow the court to take into account the energy condition of the building and the burden of works borne by each party.

Renewal and removal of the rent cap

On renewal, the rent is in principle capped according to the change in an index (the ILC or ILAT index). The removal of the cap (déplafonnement), that is, setting the rent at the actual rental value, may occur where there is a significant change in the elements referred to in Article L.145-33, in particular the respective obligations of the parties or the characteristics of the premises.

Two readings compete, and foncières have an interest in anticipating them. On the one hand, a landlord who has carried out heavy energy renovation works, appreciably improving comfort and reducing the tenant's costs, may see in this a significant change in the characteristics of the premises justifying an upward revaluation. On the other hand, a tenant may argue that a building that has remained energy-intensive, for which it bears high energy costs and uncertainty over future works, should weigh downwards in the assessment of rental value. Case law has long accepted that the condition of the premises and the works carried out by the landlord influence rental value; the energy argument fits within this existing logic.

The stake is therefore twofold for the landlord: energy renovation is not only a regulatory constraint, it is a means of preserving, or even enhancing, the value of the asset on renewal. Conversely, inaction exposes the landlord to a double penalty: an administrative sanction and a discount on rental value.

Drafting the lease to secure energy compliance

A commercial lease concluded or renewed in 2026 should address the energy question head on rather than leave it to general wording. Several clauses deserve particular attention.

• A clause allocating works that expressly distinguishes structural works (Article 606, at the landlord's cost) from works and actions relating to use (at the tenant's cost), consistent with the inventory required by Article L.145-40-2 of the French Commercial Code.
• A cooperation and data-sharing clause requiring the tenant to transmit its consumption within a period allowing the OPERAT declaration to be made before 30 September, with the consequences of default.
• A clause clearly designating the person responsible for the OPERAT declaration and the holder of the reference year.
• A forecast schedule of energy renovation works over three years, coordinated with the environmental annex for premises of more than 2,000 m².
• A clause anticipating the effect of the landlord's works on rental value at renewal, in order to limit later disputes.

Conclusion

Energy compliance is no longer a peripheral technical subject in commercial leases: it now conditions the value of tertiary assets and the legal certainty of the letting relationship. The Tertiary Decree places a shared obligation on landlord and tenant, but the allocation of works remains governed by mandatory rules, foremost among them Article 606 of the Civil Code and the Pinel Law, which prohibit making the tenant bear structural major repairs. Administrative penalties and loss of value are the two sides of the same risk, and the DPE, without prohibiting letting, weighs more and more heavily on rental value and at renewal.

The position is clear: for an institutional landlord or a foncière, energy renovation is not a cost to be endured but an investment in preserving the asset, provided it is planned early and documented in the lease. Before any signing or renewal in 2026, have your existing leases audited to identify the charge allocation clauses that have become fragile in light of the Pinel Law, and systematically include an effective environmental annex, even below the 2,000 m² threshold where the building is subject to the Tertiary Decree.

Frequently asked questions

Can commercial premises rated F or G on the DPE still be let in 2026?

Yes. The ban on letting energy-intensive properties introduced by the Climate and Resilience Law of 22 August 2021 applies to residential dwellings, not to tertiary premises. Commercial premises rated F or G remain lawfully lettable. However, a poor rating weighs on rental value and on the attractiveness of the asset, and it does not exempt the owner from complying with the Tertiary Decree if the floor area reaches 1,000 m².

Who must report consumption on OPERAT, the landlord or the tenant?

Decree No. 2019-771 of 23 July 2019 treats both the owner and the tenant as obligated parties. The declaration may be made by either of them, or delegated to a service provider, but the obligation remains shared. In practice, the lease or its environmental annex should designate the person responsible for the declaration and organise the transmission of consumption data before 30 September each year.

Can the landlord recharge energy renovation works to the tenant?

Not those that fall within the major repairs of Article 606 of the Civil Code. Since the Pinel Law of 18 June 2014 and its Decree of 3 November 2014, Article R.145-35 of the French Commercial Code prohibits charging those works and their fees to the tenant. Structural works (roof, central boiler room, major works) therefore remain at the landlord's cost. Improvement actions relating to use or maintenance may be shared on a negotiated and transparent basis.

What penalties apply for failure to comply with the Tertiary Decree?

Article L.174-3 of the CCH provides for a formal notice and then, if the failure persists, publication of the breach on a State website (“name and shame”). An administrative fine may then be imposed, capped at €1,500 for an individual and €7,500 for a legal entity. The reputational risk and the loss of value of the asset often exceed the amount of the fine.

Which buildings are subject to the Tertiary Decree?

The Eco Energy Tertiary scheme applies to buildings, parts of buildings or groups of buildings housing tertiary activities over a floor area equal to or greater than 1,000 m². The targets for reducing final energy consumption are 40% by 2030, 50% by 2040 and 60% by 2050, against a reference year after 2010, or by reference to absolute values set by order.

Can the DPE justify removing the rent cap on renewal?

The DPE is not in itself an autonomous criterion under Article L.145-33 of the French Commercial Code. However, heavy energy renovation works carried out by the landlord may constitute a significant change in the characteristics of the premises justifying an upward revaluation, while a building that has remained energy-intensive may be relied on by the tenant to argue for a lower value. Energy performance is thus integrated into the existing criteria of rental value rather than creating a new ground.

Is the environmental annex mandatory for all commercial leases?

No. Article L.125-9 of the French Environmental Code and the Decree of 30 December 2011 make it mandatory for leases of premises of more than 2,000 m² used as offices or shops. Below that threshold it is not required, but it remains strongly recommended for any building subject to the Tertiary Decree, since it provides the contractual vehicle suited to managing the energy obligations.