ADJUDICATION
We looked at ongoing UK litigation about the extent to which a collateral warranty may be considered to be a construction contract for the purpose of referring a dispute to adjudication: Construction Law Update: Court of Appeal in England & Wales finds that Collateral Warranty was a "Construction Contract" for the purposes of referring a dispute for Statutory Adjudication.
The UK Supreme Court is due to hear the appeal in this case in Q1 of 2024. Given that the definition provided for "construction contract" in the UK legislation is substantially the same as in the relevant Irish legislation, the outcome will be of interest to practitioners in Ireland, where it could be persuasive authority.
STANDARD FORM CONTRACTS
JCT
It is anticipated that the JCT will publish 2024 editions of its contracts during the course of the year.
SUSTAINABLE PRODUCTS
Construction Products Regulation
Political agreement has been reached on the proposal for a revised Construction Products Regulation laying down harmonised conditions for the marketing of construction products and repealing the 2011 Regulation. It is intended to enable the construction sector to access reliable and up to date standards in order to deliver the information needed to assess environmental performance of buildings, as required by the Energy Performance of Buildings Directive. Further information is available from the Council.
Construction products also come within the scope of another new Regulation to build on the previous Ecodesign Directive. It will set performance and information requirements for certain products placed on the EU market, based on energy and resource efficiency, durability and reusability, recycled content, and carbon and environmental footprints. Political agreement has been reached on the proposal and further information is available here.
Once both instruments receive final endorsement by the Council and Parliament they will be published in the OJEU and come into force 20 days later.
Carbon Border Adjustment Mechanism
Importers to the EU of certain products falling in the categories of cement, electricity, fertilisers, iron and steel aluminium, and chemicals (hydrogen) are required to submit first reports by 31 January 2024 under the CBAM Regulation.
The importer (reporting declarant) will be required to set out information on total quantity of each type of goods specified for each installation producing the goods in the country of origin; actual total embedded emissions expressed in tonnes of CO2e emissions per tonne of each type of goods; total indirect emissions; and the carbon price due in the country of origin for the embedded emissions in the imported goods, taking into account any rebate or other form of compensation available. Methodologies for calculating emissions are in the CBAM Regulation and Commission Implementing Regulation. The structure for reports is in Annex I of the Implementing Regulation. Default Values can be used to determine embedded emissions in imported goods (except electricity) for the first three reporting periods of the current transitional period. Further information is here.
Entities exporting CBAM goods to the EU may find they are contacted by importers to gather information on embedded emissions. Similarly, entities supplying products which serve as precursors for CBAM goods may find that they are asked by their customers to provide data. The European Commission has produced guidance for such entities and a voluntary reporting template that can be used in the interests of easing communication between parties involved.
Deforestation-free Supply Chains
Under Regulation (EU) 2023/1115 on deforestation-free supply, operators and traders have 18 months from 29 June 2023 to implement new rules. It will prohibit placement of relevant products (including timer) in the EU unless they are deforestation-free after 31 December 2020, produced in line with the relevant legislation of the country of production, and covered by a due diligence statement indicating that there is no more than a negligible risk of non-compliance.
The Commission is now pilot testing a Deforestation Information System to help operators, traders, competent authorities and customs to submit and process due diligence statements, intended to demonstrate that products are deforestation-free and can therefore be placed on the EU market.
ENERGY EFFICIENCY
Energy Performance of Buildings
The final draft of the Energy Performance of Buildings Directive is now available and will enter into force shortly. Further information is available from the Commission, Council, and Parliament.
In Ireland, guidance is now available for specifiers and installers from the Department of Housing, Local Government and Heritage on improving energy efficiency in traditional buildings.
Energy Efficiency of Data Centres
Article 12 of the Recast Energy Efficiency Directive imposes certain obligations on owners and operators of data centres. The Commission invited feedback until 15 January 2024 on a draft Delegated Regulation on the energy efficiency of data centres. Further information is here.
Energy Efficiency Funding
The Commission Recommendation of 12 December 2023 on transposing Article 30 of the Energy Efficiency Directive is intended to guide Member States on implementing Article 30, which provides for energy efficiency funding and technical support. In particular, Article 30(1) requires Member States to facilitate the establishment of financing facilities, or the use of existing ones, for energy efficiency improvement measures. The Recommendation outlines mandatory obligations and explores how they can be fulfilled.
The Commission and Member States signed a Joint Declaration to enhance efforts to establish a long-term viable funding framework for energy efficiency investments and to support the launch of a European Energy Efficiency Financing Coalition, to be launched in 2024.
DECARBONISATION POLICY
Ireland's annual update of its Climate Action Plan, with an annex of actions, is available here. It includes a section on built environment.
As required under Regulation (EU) 2018/1999 on Governance of the Energy Union and Climate Action, Ireland has submitted its draft updated National Energy and Climate Plan to the Commission to communicate how it will meet obligations under the Renewable Energy Directive, Energy Efficiency Directive, and Effort Sharing Regulation. Final updated NECPs are required by 30 June 2024.
BREXIT
In the UK, CE markings for construction projects will be replaced with new UKCA marking from June 2025. UK Government information is available here and a recent press report is here.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
