Opinion of the Advocate General — ECLI:EU:C:2019:726
Date: 2019-09-12
Language of the case: Italian
Subject matter: Energy;Taxation
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-513/18 — 1 
Case C-513/18 
Request for a preliminary ruling 
Date lodged: 
3 August 2018 
Referring court: 
Commissione Tributaria Provinciale di Palermo (Italy) 
Date of the decision to refer: 
13 July 2018 
Applicant: 
Autoservizi Giordano società cooperativa 
Defendant: 
Agenzia delle Dogane e dei Monopoli ‒ Ufficio di Palermo 
  
… 
THE COMMISSIONE TRIBUTARIA PROVINCIALE 
DI PALERMO (Provincial Tax Court, Palermo, Italy)    … 
has made the following 
ORDER 
‒ in action no … 
lodged on 5 February 2018 
‒ concerning DECISION NO 000028293594 REFUSING THE 
REIMBURSEMENT OF EXCISE DUTIES … 
against: 
THE AGENZIA DELLE DOGANE E MONOPOLI ‒ UFFICIO DELLE 
DOGANE DI PALERMO (Customs and Monopolies Authority, Italy ‒ Palermo 
Customs Office) 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2018 — CASE C-513/18 
 
2  
brought by the applicant: 
AUTOSERVIZI GIORDANO SOCIETÀ COOPERATIVA 
… 
[Or. 2] 
Facts and law 
The cooperative society Autoservizi Giordano has challenged the decision, 
notified on 1 December 2017, refusing beneficial treatment of commercial diesel 
fuel pursuant to Article 24b of Decreto Legislativo No 504/1995 [Testo unico 
delle disposizioni legislative concernenti le imposte sulla produzione e sui 
consumi e relative sanzioni penali e amministrative] (Legislative Decree No 504 
of 26 October 1995, Consolidated Text of legislative provisions relating to duties 
on production and consumption and related criminal and administrative penalties) 
and Article 7 of Directive 2003/96/EC, in respect of the third quarter of 2017. 
According to the applicant, it was entitled to the reduced rate of excise duty, 
which it had unsuccessfully claimed, as a result of the immediate applicability of 
Community legislation in the Member States. The restriction introduced by 
Article 24b of Legislative Decree No 504/1995, in accordance with which only 
the operators listed in that provision — which do not include undertakings, like 
the applicant, that hire out buses and coaches with a driver for the transportation 
of tourists and other passengers — may benefit from the reduced rate of duty, 
must therefore be regarded as arbitrary and unlawful. 
That position has, moreover, been confirmed by the opinion issued on 20 February 
2017 by the European Commission at the request of the Associazione nazionale 
autotrasporti viaggiatori. The authorities should therefore have disapplied the 
national legislation and applied the tax benefit on the basis of the immediate 
effectiveness of Article 7 of Directive 2003/96/EC. 
In the alternative, the applicant requests that a preliminary reference be made to 
the Court of Justice, pursuant to Article 267 TFEU, to establish whether Article 7 
of Directive 2003/96/EC is to be interpreted as meaning that all undertakings and 
operators in the sector for the transportation of passengers by bus and coach, 
including by way of the hire of buses and coaches with a driver, fall within its 
scope. 
The Agenzia delle dogane e dei monopoli, Ufficio di Palermo (Customs and 
Monopolies Authority, Palermo Customs Office), … contends that the action 
should be dismissed, maintaining that Article 7 of Directive 2003/96/EC is not 
immediately applicable, since it does not contain provisions that are precise and 
immediately effective. 
… [procedural matters] 
AUTOSERVIZI GIORDANO 
 
3 
The provincial tax court considers it appropriate to make a preliminary reference 
to the Court of Justice of the European Union, pursuant to Article 267 TFEU, to 
establish whether Article 7 of Directive 2003/96/EC precludes national provisions 
such as those contained in Article 24b of Legislative Decree No 504/1995, in so 
far as only the operators specifically listed in that provision may benefit from the 
reduced rate of excise duty on diesel for commercial use, which is a restriction of 
the scope of the benefit contemplated by the directive and one which, in 
particular, excludes from the tax relief undertakings operating in the sector for the 
private transportation of passengers by way of the hire of buses and coaches, 
including hire with a driver. 
Legal framework 
The starting point is Directive 2003/96/EC, which restructured the Community 
framework for the taxation of energy products and electricity. Relevant to the 
present issue are recitals 18, 19 and 20, which state as follows: 
‘(18) Energy products used as a motor fuel for certain industrial and commercial 
purposes and those used as heating fuel are normally taxed at lower levels than 
those applicable to energy products used as a propellant. 
(19) The taxation of diesel motor fuel used by hauliers, notably those engaging in 
intra-Community activities, requires a possibility for a specific treatment, 
including measures to allow for the introduction of a system of road user charges, 
in order to limit the distortion of competition operators might be confronted with. 
[Or. 3] 
(20) Member States may need to differentiate between commercial and non-
commercial diesel. Member States may use this possibility to reduce the gap 
between the taxation of non-commercial gas oil used as propellant and petrol.’ 
Also of relevance are Articles 4, 5, 6 and 7 of Directive 2003/96/EC, which 
provide as follows: 
‘Article 4 
1. The levels of taxation which Member States shall apply to the energy 
products and electricity listed in Article 2 may not be less than the minimum 
levels of taxation prescribed by this directive. 
2. For the purpose of this directive “level of taxation” is the total charge levied 
in respect of all indirect taxes (except VAT) calculated directly or indirectly on 
the quantity of energy products and electricity at the time of release for 
consumption. 
Article 5 
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Provided that they respect the minimum levels of taxation prescribed by this 
directive and that they are compatible with Community law, differentiated rates of 
taxation may be applied by Member States, under fiscal control, in the following 
cases: 
‒ when the differentiated rates are directly linked to product quality; 
‒ when the differentiated rates depend on quantitative consumption levels for 
electricity and energy products used for heating purposes; 
‒ for the following uses: local public passenger transport (including taxis), 
waste collection, armed forces and public administration, disabled people, 
ambulances; 
‒ between business and non-business use, for energy products and electricity 
referred to in Articles 9 and 10. 
Article 6 
Member States shall be free to give effect to the exemptions or reductions in the 
level of taxation prescribed by this directive either: 
(a) directly, 
(b) by means of a differentiated rate, or 
(c) by refunding all or part of the amount of taxation. 
Article 7 
1. As from 1 January 2004 and from 1 January 2010, the minimum levels of 
taxation applicable to motor fuels shall be fixed as set out in Annex I Table A. 
Not later than 1 January 2012, the Council, acting unanimously after consulting 
the European Parliament, shall, on the basis of a report and a proposal from the 
Commission, decide upon the minimum levels of taxation applicable to gas oil for 
a further period beginning on 1 January 2013. 
2. Member States may differentiate between commercial and non-commercial 
use of gas oil used as propellant, provided that the Community minimum levels 
are observed and the rate for commercial gas oil used as propellant does not fall 
below the national level of taxation in force on 1 January 2003, notwithstanding 
any derogations for this use laid down in this directive. 
3. “Commercial gas oil used as propellant” shall mean gas oil used as 
propellant for the following purposes: 
(a) the carriage of goods for hire or reward, or on own account, by motor 
vehicles or articulated vehicle combinations intended exclusively for the carriage 
AUTOSERVIZI GIORDANO 
 
5 
of goods by road and with a maximum permissible gross laden weight of not less 
than 7.5 tonnes; 
(b) the carriage of passengers, whether by regular or occasional service, by a 
motor vehicle of category M2 or category M3, as defined in Council Directive 
70/156/EEC of 6 February 1970 on the approximation of the laws of the Member 
States relating to the type-approval of motor vehicles and their trailers. 
4. Notwithstanding paragraph 2, Member States which introduce a system of 
road user charges for motor vehicles or articulated vehicle combinations intended 
[Or. 4] exclusively for the carriage of goods by road may apply a reduced rate on 
gas oil used by such vehicles, that goes below the national level of taxation in 
force on 1 January 2003, as long as the overall tax burden remains broadly 
equivalent, provided that the Community minimum levels are observed and that 
the national level of taxation in force on 1 January 2003 for gas oil used as 
propellant is at least twice as high as the minimum level of taxation applicable on 
1 January 2004.’ 
In so far as concerns national arrangements, prior to the entry into force of 
Directive 2003/96/EC, a specific regime was introduced into the Italian legal 
system concerning the taxes governed by Legislative Decree No 504/1995. 
In particular, Article 5(2) of Legislative Decree No 452/2001, converted into law 
by Law No 16/2002, provided, under the hearing ‘Tax relief on diesel motor fuel 
used by hauliers’, as follows: 
‘1. With effect from 1 January 2002 and until 30 June 2002, the rate stipulated 
in Annex I to the Consolidated Text of legislative provisions relating to duties on 
production and consumption and related criminal and administrative penalties, as 
referred to in Legislative Decree No 504 of 26 October 1995, as amended, for 
diesel motor fuel used by road haulage operators using vehicles with a maximum 
mass exceeding 3.5 tonnes, shall be reduced to the extent determined by reference 
to 31 December 2001. 
2. The reduction referred to in paragraph 1 shall also apply to: 
(a) public bodies and local public undertakings engaged in transport as referred 
to in Legislative Decree No 422 of 19 November 1997 and related regional 
implementing laws; 
(b) undertakings operating bus services under State, regional or local 
responsibility, as referred to in Law No 1822 of 28 September 1939, Council 
Regulation (EEC) No 684/92 of 16 March 1992, as amended, and Legislative 
Decree No 422/1997; 
(c) public bodies and undertakings engaged in public cableway transport for the 
carriage of passengers.’ 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2018 — CASE C-513/18 
 
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In so far as concerns the implementation of the abovementioned directive, it is 
necessary to mention Legislative Decree No 26/2007 Implementing Directive 
2003/96/EC restructuring the Community framework for the taxation of energy 
products and electricity. Of particular relevance is Article 6, which provides as 
follows: 
‘Article 6 (Rate of excise duty on diesel used as motor fuel) 
1. The rate of excise duty on diesel used as motor fuel, stipulated in Annex I to 
the Consolidated Text of legislative provisions relating to duties on production 
and consumption and related criminal and administrative penalties, as referred to 
in Legislative Decree No 504 of 26 October 1995, as amended, shall be increased 
to EUR 423.00 per 1 000 litres. 
2. For the bodies, enterprises and operators referred to in Article 5(1) and (2) of 
Legislative Decree No 452 of 28 December 2001, converted, with amendments, 
into law by Law No 16 of 27 February 2002, the increase in cost resulting from 
the provisions of paragraph 1 shall be reimbursed, including by way of the 
compensation provided for in Article 17 of Legislative Decree No 241 of 9 July 
1997, as amended, upon submission of the appropriate declaration to the 
appropriate offices of the Customs Authority, in the manner and with the effects 
laid down by the rules governing tax relief for road haulage operators, as referred 
to in Decree No 277 of the President of the Republic of 9 June 2000. Such effects 
shall also be relevant for the purposes of the provisions of Title I of Legislative 
Decree No 446 of 15 December 1997. The effectiveness of the provisions of this 
paragraph shall be subject to the approval of the European Commission, in 
accordance with Article 88(3) of the Treaty Establishing the European 
Community. …’ [paragraph not relevant to the questions referred for a 
preliminary ruling] 
[Or. 5] 
In addition, Article 24b of Legislative Decree No 504/1995, which was inserted 
by Article 4b(1)(f) of Legislative Decree No 193 of 22 October 2016, in force 
since 3 December 2016, converted, with amendments, into law by Law No 225 of 
1 December 2016, provides, under the heading ‘Commercial diesel’, as follows. 
‘1. Commercial diesel used as motor fuel shall be subject to excise duty at the 
rate stipulated for such use at point 4a of Table A annexed to the present 
consolidated text. 
2. “Commercial diesel used as motor fuel” means diesel used in vehicles, with 
the exception of vehicles of category Euro 2 or below, which are used by their 
owner or under some other form of authority which guarantees their exclusive 
availability, for the following purposes: 
(a) the carriage of goods by vehicles with a maximum gross laden weight of not 
less than 7.5 tonnes by: 
AUTOSERVIZI GIORDANO 
 
7 
… [list of different types of road haulier] 
(b) the transport of passengers by: 
(1) public bodies and local public undertakings engaged in transport as 
referred to in Legislative Decree No 422 of 19 November 1997 and related 
regional implementing laws; 
(2) undertakings operating inter-regional bus services for which the State 
assumes responsibility, as referred to in Legislative Decree No 285 of 
21 November 2005; 
(3) undertakings operating bus services for which regional or local 
authorities assume responsibility, as referred to in Legislative Decree 
No 422 of 19 November 1997; 
(4) undertakings operating regular Community bus services, as referred to 
in Regulation (EC) No 1073/2009 of the European Parliament and of the 
Council of 21 October 2009, 
3. Commercial diesel also includes diesel used for the transportation of 
passengers by public bodies or by undertakings engaged in the provision of public 
cableway transport services. 
4. The cost resulting from the higher rate of excise duty on commercial diesel 
shall be reimbursed in an amount equal to the difference between the rate of 
excise duty on diesel used as motor fuel, as referred to in Annex I, and the rate 
referred to in paragraph 1 of this article. To claim reimbursement, the bodies, 
enterprises and undertakings referred to in paragraphs 2 and 3 shall submit the 
appropriate declaration to the appropriate offices of the Customs and Monopolies 
Authority in the month following the end of the quarter in which the commercial 
diesel was consumed. 
5. Credit arising in accordance with paragraph 4 of this article shall be set off 
against sums owing, as provided for in Article 17 of Legislative Decree No 241 of 
9 July 1997, by no later than 31 December of the calendar year following that in 
which the credit arose as a result of a decision of acceptance or the expiry of a 
period of 60 days following receipt of the declaration. 
6. As an alternative to the provisions of paragraph 5, credit arising in 
accordance with paragraph 4 may be settled in cash.’ 
[Or. 6] 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2018 — CASE C-513/18 
 
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Case-law on this issue and other positions expressed in national and 
international fora 
The Commissione tributaria provinciale di Brescia (Provincial Tax Court, Brescia, 
Italy) … upheld a claim for reimbursement made by an operator providing 
passenger transport services by way of the hire of vehicles with a driver, 
disapplying Article 24b of Legislative Decree No 504/1995 on the ground that that 
provision is more restrictive than what was envisaged by Article 7 of Directive 
2003/96/EC, under which a reduced rate of excise duty may be allowed for diesel 
used for the carriage of passengers, by either regular or occasional services, 
without any restriction as to the range of bodies or undertakings which use diesel 
for commercial purposes. 
The Commissione tributaria provinciale di Pavia (Provincial Tax Court, Pavia, 
Italy) has given a similar ruling … 
On the other hand, the Commissione tributaria provinciale di Firenze (Provincial 
Tax Court, Florence, Italy) has reached a different conclusion, holding that ‘the 
option of providing for various forms of reimbursement (once the Member State 
has applied the minimum levels of taxation for commercial diesel required by the 
directive) and any tax relief measures fall within the discretion of the Member 
State, there being no provision of Community law that requires the Member States 
to grant tax advantages in the form of reimbursement.’ The court added that 
Article 7 of the directive does not contain the same definition of diesel as that 
used in Article 24b of Legislative Decree No 504/1995, ‘given that Community 
legislation is concerned with establishing the minimum levels of taxation, whereas 
national legislation is, by contrast, concerned with providing for the 
reimbursement — in accordance with the resources available to Italy as a Member 
State — of sums paid by way of tax for certain categories of operator which are of 
particular social and public benefit’. In short, Article 7 gives a definition of 
commercial diesel not for the purposes of the application of the minimum levels 
of taxation, and that is consistent with Article 4 of Directive 2003/96/EC, in 
accordance with which ‘the levels of taxation which Member States shall apply to 
the energy products and electricity listed in Article 2 may not be less than the 
minimum levels of taxation prescribed by this directive.’ 
In an email and in a note which the applicant has produced in these proceedings, 
the European Commission has confirmed that ‘the term “commercial gas oil used 
as propellant” is defined in Article 7[(3)] of Directive 2003/96/EC and should be 
transposed in national law in the same way as it is defined in the directive.’ …  
It should also be noted that the Ministro dell’economia e delle finanze (Minister 
for the Economy and Finance) … has stated that Article 7 of Directive 
2003/96/EC merely provides for the possibility of specifying specific treatment 
for commercial diesel, that option to be exercised, obviously, in a way that each 
Member State considers to be consistent with its own legal system, there being no 
obligation for full transposition …  
AUTOSERVIZI GIORDANO 
 
9 
The questions to be referred to the Court of Justice pursuant to Articles 267 
TFEU 
[Or. 7] 
The diversity of the solutions thus far offered by the courts that have dealt with 
this issue renders necessary the intervention of the Court of Justice, which has the 
task of interpreting EU law with binding and erga omens effect. 
It is thus necessary for the Court of Justice to clarify whether Directive 
2003/96/EC — in view of what is stated in recitals 18 to 20 and on a functional 
and literal interpretation of Article 7 and also of the entire EU framework — 
contains one or more provisions that take immediate effect in the legal systems of 
the Member States, so that it may be determined (i) whether there is an 
immediately effective right to reimbursement of excess excise duty paid by 
private operators that use diesel for commercial purposes, even though they are 
engaged in the private transport sector offering services for the hire of vehicles 
with a driver, and (ii) whether those provisions stand in conflict with domestic 
legislation, to the extent that the national legislature has restricted the class of 
bodies and undertakings using diesel for commercial purposes which are not 
entitled to the tax benefit consisting in the reduction of the rate of excise duty in 
question. 
The position expressed by the Customs Authority, which adopts the view that the 
provisions of EU law in question are not immediately effective and that the 
Member States are allowed a discretion as to whether or not to introduce tax relief 
and a right to reimbursement, might not be decisive: it need only be remembered 
that the provisions contemplated by the directive, or at least Article 7, while 
indeed allowing the individual Member States a margin of discretion as to whether 
or not to differentiate between the commercial and non-commercial use of diesel, 
do not appear to permit the Member States, should they decide to introduce the 
category of diesel for commercial use, which is governed by Article 7(3)(a) and 
(b), the same margin of discretion, inasmuch as they must adhere to the definition 
of commercial diesel therein given and the consequent level of taxation to be 
imposed at national level. 
From that perspective, it is clear that there is a discrepancy between the provisions 
of Article 7(3)(a) and (b) of the directive, in which, in so far as is relevant here, 
reference is made to ‘the carriage of passengers, whether by regular or occasional 
service’, and the domestic legal framework, under which entitlement to the 
reduction in excise duty is still dependent, even after the entry into force of 
Directive 2003/96/EC, on the particular classification of the bodies and operators 
using diesel for commercial purposes. That discrepancy still remains in 
Article 24b of Legislative Decree No 504/1995, which expressly sets out the 
categories of bodies and operators that may consider themselves to be users of 
diesel for commercial purposes, only if they pursue certain specific purposes, 
which, in so far as the applicant is concerned, do not include the use of diesel for 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2018 — CASE C-513/18 
 
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the transportation of passengers by operators hiring buses and coaches with a 
driver. 
Since no judgments have been delivered by the Court of Justice on this point, the 
Court is thus called upon to clarify the regulatory scope of the provision of EU 
law in order to determine whether the national legal framework is consistent with 
it, and specifically whether the content of Article 7 of the directive is sufficiently 
precise and unconditional for individuals to be able to rely on it directly against 
the authorities of the Member State in question. 
If indeed it were to be held that the provision of EU law in question is 
immediately effective in the Member States, it would be difficult to conclude that 
the national legal framework is consistent with that provision, given that the 
Italian State has expressly introduced, as a means of recovering excess excise duty 
paid on commercial diesel, the right to reimbursement that is governed by 
Article 24b(4) of Legislative Decree No 504/1995. 
In conclusion, the Court of Justice is called on to clarify whether the discretion 
referred to in Article 7(2) of Directive 2003/96/EC (‘Member States may 
differentiate between [Or. 8] commercial and non-commercial use of gas oil used 
as propellant, provided that the Community minimum levels are observed and the 
rate for commercial gas oil used as propellant does not fall below the national 
level of taxation in force on 1 January 2003’) renders the provision which 
includes, within the definition of commercial diesel, that which is used for ‘the 
carriage of passengers by occasional service’, not immediately effective and 
unconditional. 
The court therefore submits the following questions for a preliminary ruling: 
Is Article 7 of Directive 2003/96/EC to be interpreted as including within its scope 
all undertakings and operators, whether public or private, in the sector for the 
conveyance of passengers by bus and coach, including by way of the hire of buses 
and coaches with a driver, and as precluding national legislation implementing 
the directive in so far as it does not treat operators which hire buses and coaches 
with a driver as operators using commercial gas oil? 
Does the discretion which the Member States are allowed, as referred to in 
Article 7(2) of Directive 2003/96/EC (‘Member States may differentiate between 
commercial and non-commercial use of gas oil used as propellant, provided that 
the Community minimum levels are observed and the rate for commercial gas oil 
used as propellant does not fall below the national level of taxation in force on 
1 January 2003’), render the provision which includes, within the definition of 
commercial gas oil, used for ‘the carriage of passengers by occasional service’, 
not immediately effective and unconditional? 
Is the content of Article 7 of the directive sufficiently precise and unconditional 
for individuals to be able to rely on it directly against the authorities of the 
Member State in question? 
AUTOSERVIZI GIORDANO 
 
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The relevance of the questions referred for a preliminary ruling 
The relevance of the questions of interpretation referred to the Court of Justice 
would not appear to be open to debate: the subject-matter of the action before the 
referring court is a claim for the reimbursement of excise duty paid on the 
consumption of diesel on the ground that the applicant company, which hires out 
buses and coaches, is entitled to such reimbursement on the basis of Article 7 of 
Directive 2003/96/EC. The Customs Authority has denied there is any such 
entitlement, asserting, in its decision refusing reimbursement, that ‘the activity of 
hiring out buses and coaches with a driver engaged in by this firm, does not fall 
within any of the categories contemplated by the tax provisions currently in 
force.’ 
In accordance with Article 267 TFEU, the court stays the present proceedings 
pending the decision of the Court of Justice. 
ON THOSE GROUNDS, 
pursuant to Article 267(3) of the Treaty on the Functioning of the European Union 
… this court requests the Court of Justice of the European Union to give a 
preliminary ruling on the questions on the interpretation of European Union law 
set out in the body of this order; 
orders that proceedings be stayed … 
… 
Palermo, 13 July 2018 
…