Dorean assisted the company Omi One with its entry into the capital of Cesam Seed.

December 13, 2019

Since July 2018, Dorean Avocat has assisted four employees of the Cesam Seed company to form the company Omi One, and secure its entry into the capital of Cesam Seed,

Cesam Seed specializes in the integration of so-called “Product Lifecycle management” (PLM) systems within large industries.

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After more than a year of negotiations with the initial shareholders and financial institutions, on December 12, 2019, the company Omi One acquired a 49% stake in Cesam Seed.

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Dorean Avocat is proud to have been able to support the partners of Omi One in the realization of their project, and in particular by playing an advisory and assistance role for:

- the constitution of the company Omi One (drafting of the statutes and administrative documentation);

- negotiations with sellers and banks;

- drafting the transfer contract and its reiterative act;

- drafting administrative documentation for the transfer and organizing the closing.

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Dorean Avocat wishes the best to the two new shareholders of Cesam Seed, the companies Omi One and Kenobi... May the force be with them.

EWC fraud: Parliament’s response in 10 measures

November 15, 2019

Law No. 2019-1147 of November 8, 2019 relating to energy and climate (known as “Energy-Climate” law) devotes a chapter to strengthening the “Fight against savings certificate fraud of energy » (art. 36 to 38).

Reminders on the CEE system

As a reminder, the energy savings certificate (CEE) system is a tool intended to promote and support energy savings, alongside in particular the tax credit for energy transition (CITE), the zero-rate eco-loan (eco-PTZ), aid from the National Housing Agency (ANAH) or reduced VAT for housing renovation work.

Created by the programming law establishing the orientations of the energy policy of July 13, 2005, known as the “POPE law”, the EECs set an obligation to achieve energy savings on energy suppliers and fuel distributors ( the “Obligés”), and thus encourage them to actively promote energy efficiency among energy consumers. The Obligees have a three-year obligation to achieve energy savings, calculated according to their weight in energy sales.

To meet their three-year obligation, several avenues are available to them: they can encourage consumers to carry out energy efficiency work by paying them assistance (bonus, vouchers, etc.) or by supporting them in the renovation process (advice, diagnostics) and obtain EECs in exchange.

The Directorate General for Energy and Climate (DGEC) is responsible for managing the system. Within it, the National Center for Energy Saving Certificates (PNCEE) issues the EECs to the Obliged Parties after completion of the work. At the end of the three-year period, Obligees must prove that they have met their obligations by having obtained sufficient CEE. In the event of non-compliance with their obligations, the Obligees are required to pay a financial penalty.

The EECs are materialized by their registration on an account in the National Register of EECs and are exchangeable over the counter. There therefore exists a “CEE market”. The average price of CEE transferred in March 2019 was 7.67 euros excluding tax/MWhcumac.

The cost of the CEE system is estimated between 3 and 3.5 billion euros per year. 

However, the CEE system remains little known to consumers. According to UFC-Que Choisir, 87% of consumers do not know precisely or at all what it is. (Energy saving certificates. Efficiency far from being certified”, February 2018)

A system conducive to fraud

Involving multiple actors - obligated, eligible, delegated, craftsmen - and operating in particular on the basis of over-the-counter exchanges, the EWC system is all the more conducive to the development of fraudulent practices as the tension on the market is large and the potential gain from a fraudulent transaction is high.

As noted by the Council of State in its opinion on the bill, “the very strong increase in energy saving obligations (...) as well as the very significant increase in the value certificates, are likely to encourage the development of fraud of various types.” (EC, opinion of April 25, 2019 on the bill relating to energy, climate and the environment).

Even if controls are carried out by the PNCEE - whose staff is however limited to a dozen agents - the impact study of the bill notes that "the CEE system faces the actions of companies using fraudulent means to be awarded EECs which can then be resold, with the laundering of sums resulting from criminal activities and the evasion of profits abroad”. These frauds, consisting mainly of overvaluing or not carrying out the work declared and which can “represent significant amounts”, could have been facilitated by the simplification of declaration procedures and are often concealed by “the multiplication of partnerships and subcontracting contracts”.

Since 2015, 400 inspections have been launched: 52 sanctions have been imposed, which corresponds to the cumulative cancellation of 1.3 TWhcumac of EEC and financial penalties amounting to 12 million euros . Around 1 EEC out of 1,000 granted was canceled following these checks.

In its 2016 annual report, the national financial intelligence unit Tracfin observed a significant increase in the number of files linked to EWC fraud (work not carried out or work overcharged). These documentary frauds, concealed by the proliferation of partnerships and subcontracting contracts, have led to the undue issuance of a certain number of EWCs, and even, in certain cases, to money laundering and the financing of criminal networks. transnational. Tracfin nevertheless indicated to the rapporteur of the bill, during his hearing, a significant drop in the number of frauds detected.

The Government's response

Faced with this observation, the Government, first of all, has strengthened the means to fight fraud:

• Decree No. 2017-1848 of December 29, 2017 tightened the conditions allowing a structure to become a delegatee;

• the PNCEE workforce was increased from 16 to 21 full-time equivalents;

• 1 million euros was dedicated in 2019 to financing on-site inspections by accredited third-party organizations chosen by call for tender.

But the real response was that of Parliament, secondly, through article 36 of the Energy-Climate law.

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Parliament's response

The legislator intervened, through article 36 of the Energy-Climate law, in order to provide an arsenal of ten measures intended to curb the development of fraudulent practices on the CEE market.

These ten measures are as follows:

1. The formal notice procedure will now only be reserved for breaches of reporting obligations.(art. L222-2 of the Energy Code): the legislator has in fact considered that the formal notice only makes sense in the context of controlsex ante, before the issuance of the EECs, allowing the request to be regularized. When the examex postsupporting documents show that EWCs were unduly issued, this would justify, in his opinion, being able to directly initiate a sanction procedure. Article L222-3 of the Energy Code provides that sanctions are imposed after the person concerned has received notification of the grievances and has been able to consult the file and present his observations, assisted, if necessary. where appropriate, by a person of their choice. The impact study indicates that this provision could reduce the duration of controls by two to four months. This modification will require an adaptation by decree in the Council of State of the articles of the regulatory part drawn up in application of article L222-2. The formal notice will continue to apply to reporting obligations (declaration of change of status or domiciliation, declarations of energy sale and cessation of activity for example), which will allow the persons concerned to regularize their situation by case of forgetting or incomplete declaration.

2. A mechanism ofpre-filing check of EEC requests is created (art. L221-9 of the Energy Code): this control, which will only relate to a sample of operations selected randomly from a list of operations which will be fixed by order, must be carried out at the expense of the applicant, by him or her or by the accredited organization of his or her choice. It will be the subject, for each controlled operation, of a report attesting to the reality of energy savings and compliance with regulatory requirements and will be “kept available” of the PNCEE. The conditions of this control, in particular the accreditation framework for control bodies and the percentages of operations which must give rise to telephone or on-site control, which may vary depending on the types of operations, will be specified by order.

3. A sanctioned person may be forced to carry out, at their own expense and by the accredited body of their choice, acontrol over other operations (art. L222-2-1 of the Energy Code).

4. Any obligated, eligible or delegated person will now be required toreport without delay to the organizations issuing the RGE qualification any observed and manifest breach of the qualification rules so that these organizations can carry out investigations which could lead, if necessary, to the withdrawal of the qualification of the company concerned (art. L221-13 of the Energy Code). Likewise, the PNCEE has the possibility of communicating any obvious non-compliance to the certifying bodies of RGE craftsmen.

5. THEsanction ceilings are doubled (from 2% to 4% of turnover and from 4% to 6% in the event of a new breach of the same obligation) (art. L222-2 of the Energy Code).

6. THElimitation period for breaches is doubled (from 3 to 6 years) (art. L222-5 of the Energy Code).

7. PNCEE agents will be able toexchange all documents and information obtained as part of their missions with the tax, customs and fraud prevention services (art. L222-10 of the Energy Code) as well as with the national financial intelligence unit, Tracfin (art. L. 561-31 of the Monetary and Financial Code).

8. THEaverage CEE price will be published each month (art. L221-11 of the Energy Code)

9. The number of CEEs issued by sector of activity and by standardized energy saving operation will be published every six months, instead of once a year (art. L221-11 of the Energy Code).

10. The maximum validity period of EECs is reduced, from 10 to 6 years (art. L221-11 of the Energy Code), in order to avoid hoarding of EWCs. In particular, players may be tempted to keep their EECs in the hope of being able to sell them for more later. 

Dorean assisted the SCVM in the context of the termination by the RATP of its agreement for the occupation of public property.