Autoservizi Giordano società cooperativa v Agenzia delle Dogane e dei Monopoli - Ufficio di Palermo.
Date: 2020-01-30
22


As to the second part of the first question, it must be borne in mind, as a preliminary point, that, in order to determine the scope of a provision of EU law, account must be taken of its terms, its scheme and its aims (judgment of 19 April 2018, CMR, C‑645/16, EU:C:2018:262, paragraph 22 and the case-law cited).
24


It should be pointed out that the terms ‘regular’ and ‘occasional’, which appear in the expression ‘the carriage of passengers, whether by regular or occasional service’ in Article 7(3)(b) of Directive 2003/96, are linked by the coordination conjunction ‘or’. In that regard, it is true that the coordinating conjunction ‘or’ may, linguistically, have an alternative or cumulative meaning (see, to that effect, judgments of 12 July 2005, Commission v France, C‑304/02, EU:C:2005:444, paragraph 83, and of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 102).
28


As regards the objectives pursued by Directive 2003/96, it should be noted, first, that it is apparent from recitals 9 and 11 of that directive that it seeks to give Member States the flexibility necessary to define and implement policies appropriate to their national circumstances and the arrangements made in connection with the implementation of that directive are a matter for each Member State to decide (judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia, C‑189/15, EU:C:2017:17, paragraph 50).
30


Secondly, by providing for a harmonised system of taxation of energy products and electricity, Directive 2003/96 seeks, as is clear from recitals 2 to 5 and 24 thereof, to promote the proper functioning of the internal market in the energy sector, in particular by avoiding distortions of competition (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 29 and the case-law cited). In particular, it follows from recital 3 of that directive that it is for the purpose of ensuring the proper functioning of the internal market that the directive has set Community minimum levels of taxation.
32


Thirdly, Directive 2003/96 also seeks, as is apparent from its recitals 6, 7, 11 and 12, to promote environmental policy objectives (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 34 and the case-law cited)
35


However, as the Commission recalled, in essence, in its written observations, in the exercise of the power which the Member States have to implement Article 7(2) and (3) of Directive 2003/96, they must comply with the general principles of law which form part of the EU legal order, including, in particular, the principle of equal treatment (see, by analogy, judgments of 2 June 2016, Polihim-SS, C‑355/14, EU:C:2016:403, paragraph 59, and of 9 November 2017, AZ, C‑499/16, EU:C:2017:846, paragraphs 29 and 30).
36


Thus, the conformity of the national legislation at issue in the main proceedings with EU law is subject to compliance with the principle of equal treatment, which is for the referring court to ascertain. The Court may, nonetheless, provide it with guidance to assist it in resolving the dispute before it (see, by analogy, judgment of 21 November 2018, Fontana, C‑648/16, EU:C:2018:932, paragraphs 37 and 38).
37


In accordance with settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 164 and the case-law cited).
38


That principle precludes similar goods or services which are in competition with each other from being treated differently from the point of view of the rate of excise duty (see, by analogy, judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 47 and the case-law cited).
39


In order to determine whether goods or services are similar, account must be taken primarily of the point of view of a typical consumer. Goods or services are similar where they have similar properties and meet the same needs in the eyes of the consumer, according to a criterion of comparability in use, and where the existing differences do not significantly influence the decision of the average consumer to use one or the other of those goods or services (judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 48 and the case-law cited).