delivered on 12 September 2019 (1)

Case C‑513/18

Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo

(Request for a preliminary ruling from the Commissione tributaria provinciale di Palermo (Provincial Tax Court, Palermo, Italy))

(Reference for a preliminary ruling — Directive 2003/96/EC — Taxation of energy products and electricity — Article 7(2) and (3) — Option for Member States to provide for a reduced rate of excise duty on commercial gas oil used as propellant — Concept of ‘commercial gas oil used as propellant’ — Carriage of passengers by regular or occasional service — Activity of hiring a bus and driver — Direct effect)

1.By this reference for a preliminary ruling the Court is requested to interpret Article 7 of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity. (2) Article 7(1) lays down the minimum levels of taxation applicable to motor fuels and Article 7(2) provides that, provided certain conditions are complied with, Member States may differentiate between taxation of commercial and non-commercial gas oil used as propellant; to that effect, Article 7(3) defines the concept of ‘commercial gas oil used as propellant’.

2.The Court must determine whether, under that provision, Member States may differentiate not only between non-commercial gas oil and commercial gas oil, but also, with regard to the latter, between gas oil used in the context of the regular carriage of passengers and that used for the occasional carriage of passengers.

II. Legal context

Recitals 3, 5, 9, 11, 15, 20, 24 and 28 of Directive 2003/96 state:

(3)The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal.

(5)The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced.

(9)Member States should be given the flexibility necessary to define and implement policies appropriate to their national circumstances.

(11)Fiscal arrangements made in connection with the implementation of this Community framework for the taxation of energy products and electricity are a matter for each Member State to decide. ...

(15)The possibility of applying differentiated national rates of taxation to the same product should be allowed in certain circumstances or permanent conditions, provided that Community minimum levels of taxation and internal market and competition rules are respected.

(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.

(24)Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.

(28)Certain exemptions or reductions in the tax level may prove necessary; notably because of the lack of a stronger harmonisation at Community level, because of the risks of a loss of international competitiveness or because of social or environmental considerations.

Article 4(1) of that directive provides:

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.

Article 7 of that directive provides:

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 [European] Commission, decide upon the minimum levels of taxation applicable to gas oil for a further period beginning on 1 January 2013.

the carriage of goods for hire or reward, or on own account, by motor vehicles or articulated vehicle combinations intended exclusively for the carriage of goods by road and with a maximum permissible gross laden weight of not less than 7.5 [t];

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 [ (3)].

4. Notwithstanding paragraph 2, Member States which introduce a system of road user charges for motor vehicles or articulated vehicle combinations intended 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.

Article 6 of decreto legislativo n. 26 — Attuazione della direttiva 2003/96/CE che ristruttura il quadro comunitario per la tassazione dei prodotti energetici e dell’elettricità (Legislative Decree No 26 implementing Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity), (4) of 2 February 2007, lays down the rate of excise duty on gas oil used as propellant. Article 24b of decreto legislativo n. 504 — Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Legislative Decree No 504, Consolidated Text of legislative provisions relating to duties on production and consumption and related criminal and administrative penalties), (5) of 26 October 1995, also provides, under the heading ‘Commercial gas oil’:

Commercial gas oil used as propellant 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.

“Commercial gas oil used as propellant” means gas oil used in vehicles, with the exception of vehicles of category Euro 2 or below, that are used by their owner or under some other form of authority which guarantees their exclusive availability, for the following purposes:

the carriage of goods by vehicles with a maximum permissible gross laden weight of at least 7.5 [t] by:

…

(b)

the carriage of passengers by:

(1)public bodies and local public undertakings engaged in transport as referred to in decreto legislativo n. 422 — Conferimento alle regioni ed agli enti locali di funzioni e compiti in materia di trasporto pubblico locale, a norma dell’articolo 4, comma 4, della legge 15 marzo 1997, n. 59 [Legislative Decree No 422, Transfer to regions and local authorities of functions and responsibilities in the field of local public transport, under Article 4(4) of Law No 59 of 15 March 1997], of 19 November 1997, and by regional implementing laws;

(2)undertakings operating inter-regional bus services for which the State assumes responsibility, as referred to in decreto legislativo n. 285 — Riordino dei servizi automobilistici interregionali di competenza statale [Legislative Decree No 285 on the reorganisation of inter-regional bus services for which the State assumes responsibility], 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 bus services within the Community context, as referred to in Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 [on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/2006].

4. The cost resulting from the higher rate of excise duty on commercial gas oil shall be reimbursed in an amount equal to the difference between the rate of excise duty on gas oil used as propellant, 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 competent offices of the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Authority) in the month following the end of the quarter in which the commercial gas oil was consumed.

…’

III. Facts, procedure and questions referred

10. In support of its action, it claims that it was entitled to the reduced rate as a result of the direct applicability of Article 7 of Directive 2003/96 and that the restriction introduced by Article 24b of Legislative Decree No 504/1995, which grants the reduced rate only to certain operators — which do not include undertakings that hire out buses and coaches with a driver — must be regarded as arbitrary and unlawful.

11. The Customs and Monopolies Authority, Palermo Office, contends, on the contrary, that Article 7 of Directive 2003/96 is not directly applicable, since it allows Member States discretion in granting the reduced rate of excise duty.

14. The referring court therefore states that it seeks to establish whether Article 7 of Directive 2003/96 can be relied on directly by individuals in order to benefit from the reduced rate of excise duty and the reimbursement of excise duties improperly paid. It also states that, if that were the case, it would be difficult to regard Italian law as being compatible with that provision.

15. In those circumstances, the Commissione tributaria provinciale di Palermo (Provincial Tax Court, Palermo) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 7 of Directive [2003/96] to be interpreted as including within its scope all undertakings and operators, whether public or private, operating in the sector for the conveyance of passengers by bus and coach, including in this the hire of buses and coaches with a driver, and as precluding national legislation implementing [that] directive in so far as it does not treat operators which hire buses and coaches with a driver as operators using commercial gas oil?

(2) Does the discretion which the [Member] States are allowed, as referred to in Article 7(2) of Directive [2003/96] 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?

(3) Is the content of Article 7 of Directive [2003/96] sufficiently precise and unconditional for individuals to be able to rely on it directly against the authorities of the Member State in question?’

16. By its first question, the referring court asks the Court, in essence, about the interpretation of Article 7 of Directive 2003/96, in order to establish, firstly, whether that provision applies to all undertakings and operators, whether private or public, engaged in the carriage of passengers and, secondly, whether it precludes national legislation that does not include within the concept of ‘commercial gas oil used as propellant’ gas oil used for purposes of the occasional carriage of passengers.

17. In that regard, it should be noted that Article 7(2) of Directive 2003/96 allows Member States to differentiate, with regard to excise duty, between commercial and non-commercial gas oil used as propellant, whilst requiring Member States that do differentiate, firstly, not to derogate from the minimum levels of taxation provided for in that directive and, secondly, not to lay down a rate for commercial gas oil used as propellant below the national level of taxation in force on 1 January 2003.

In Article 7(3) of Directive 2003/96, the EU legislature set out a definition of ‘commercial gas oil used as propellant’ based on the purpose for which the gas oil is used. It follows from that definition that commercial gas oil used as propellant is gas oil used for the carriage of goods for hire or reward, or on own account, by certain vehicles, and gas oil used for the carriage of passengers, whether by regular or occasional service, by certain vehicles.

19.Consequently, firstly, the Court is requested to determine the scope of Article 7(2) of Directive 2003/96 in order to establish whether that provision applies to an undertaking such as the one concerned in the main proceedings, namely a private undertaking that hires out buses and coaches with a driver for the carriage of passengers.

20.Secondly, the referring court asks whether the option afforded to Member States by Article 7(2) of Directive 2003/96, allowing them to differentiate between commercial gas oil and non-commercial gas oil used as propellant, also allows them to grant, with regard to the carriage of passengers, a reduced rate of excise duty for gas oil used in the context of the regular carriage of passengers without granting the same reduced rate for gas oil used for the occasional carriage of passengers.

21.In the first place, with regard to the scope of Article 7(2) of Directive 2003/96, as the Commission rightly pointed out, the EU legislature defined the concept of ‘commercial gas oil used as propellant’ by reference not to the public or private nature of the operators using the gas oil, but to the purpose for which the gas oil is used, namely the carriage of goods and passengers by means of certain vehicles.

22.Therefore, in my view, Article 7(2) of Directive 2003/96 can apply, with regard to the carriage of passengers, both to public and to private operators, such as the applicant in the main proceedings, provided the gas oil is being used, in accordance with Article 7(3) of that directive, in the context of the carriage of goods or passengers.

23.In the second place, with regard to the possibility for Member States to grant, in the case of the carriage of passengers, a reduced rate of excise duty for gas oil used in the context of the regular carriage of passengers, without granting the same reduced rate for gas oil used in respect of the occasional carriage of passengers, I consider that, in view of the wording, context and objectives of Article 7 of Directive 2003/96, such a possibility follows from that provision.

24.The wording of Article 7(3)(b) of Directive 2003/96 points to that meaning, since, as regards the definition of the carriage of passengers, the EU legislature used the conjunction ‘ou’ in the French version, which, in principle, indicates an alternative.

25.Consequently, at first sight, the wording of that provision seems to indicate, in respect of the carriage of passengers, that commercial gas oil benefiting from a reduced rate of excise duty may be used for the carriage of passengers either by regular or occasional service and that therefore Member States have some discretion in that regard.

26.Nonetheless, I agree with the Commission that the wording of Article 7(3) of Directive 2003/96 is not free of uncertainty, since the French conjunction ‘ou’ may also express not an alternative, but an addition or a cumulative factor.

27.Since that conjunction may, linguistically, have either an alternative or a cumulative meaning, it must consequently be read in the context in which it is used and in the light of the objectives of the act in question.

28.To my mind, it follows unquestionably from the scheme and objectives of Directive 2003/96 that, under Article 7(2) and (3) of that directive, Member States may choose to grant the reduced rate of excise duty only to gas oil used for the regular carriage of passengers.

29.In that regard, it is useful to recall at the outset that the EU legislature, in adopting Directive 2003/96, intended to carry out harmonisation of the rules for the taxation of energy products and electricity that was not exhaustive, but minimal. Specifically, in order to avoid distortions of competition or protective or discriminatory internal taxation, Directive 2003/96 lays down minimum levels of taxation, but leaves Member States free to set higher rates.

30.In that context, it should also be noted that a number of the provisions of that directive are particularly relevant for measuring the amount of discretion enjoyed by the Member States.

31.Thus, besides Article 7(2), Articles 5, 14, 15, 16, 17 and 19 of that directive provide an opportunity for Member States to introduce differentiated rates of taxation, tax exemptions or reductions of excise duties.

32.When read in the light of recitals 10, 15, 24 and 28 of Directive 2003/96, those provisions show that the EU legislature did not overlook the fact that excise duties are very important for Member States since they provide leverage for promoting and financing certain public policies.

33.Consequently, in my view it follows from the scheme of Directive 2003/96 that the latter gives Member States very significant room for manoeuvre, on grounds of national considerations or specific national circumstances.

34.That analysis is, moreover, supported by the interpretation of Article 17 of Directive 2003/96.

35.Under that provision, Member States may apply tax reductions on electricity consumption for, inter alia, energy-intensive businesses, provided the minimum levels of taxation provided for by that directive are respected on average for each undertaking.

36.When questioned on whether Article 17(1) of Directive 2003/96 precludes national rules which provide for tax reductions on the consumption of electricity in favour of energy-intensive businesses in the manufacturing sector alone the Court, on the basis of the wording of that provision and of the objectives of that directive, held that that was not the case.

37.If the Court has held that Member States may ‘apply selectively’ the option to grant tax reductions in favour of energy-intensive businesses, I do not see how it would be any different in respect of the reduced rate of excise duty provided for in Article 7(2) of Directive 2003/96.

Like Article 17 of Directive 2003/96, Article 7 of that directive affords Member States the option, and not the obligation, to apply a reduced rate of excise duty in favour of certain activities.

Moreover, with regard to the objectives of Directive 2003/96, I note that, firstly, the Court has previously held 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. (21)

Secondly, the Court has held that Directive 2003/96, by making provision for a system of harmonised taxation of energy products and electricity, seeks, as is apparent from recitals 2 to 5 and 24 thereof, to promote the smooth functioning of the internal market in the energy sector by avoiding, in particular, distortions of competition. (22)

As the EU legislature expressly required in Article 7(2) of Directive 2003/96 that the minimum levels of taxation are to be observed, recognising that Member States are allowed to provide for a reduced rate of excise duty for gas oil used for the regular carriage of passengers without granting the same treatment for gas oil used for the occasional carriage of passengers does not undermine that objective and enables them to implement policies appropriate to their national circumstances, in particular, with regard to transport and regional accessibility.

Thus, examination of the objectives of Directive 2003/96 supports the interpretation that, in view of the option provided under Article 7(2) of that directive, Member States may make provision for treatment that differentiates between the regular and occasional carriage of passengers in that it grants a reduced rate of excise duty only in favour of gas oil used for the regular carriage of passengers.

Lastly, such an interpretation of Article 7(2) and (3) of Directive 2003/96 is not invalidated by the rationale behind Article 7 of that directive.

Indeed, that provision appears to have been introduced by the EU legislature (23) to allow Member States to differentiate, in respect of excise duties, between commercial and non-commercial gas oil and to reduce the gap between the taxation of non-commercial gas oil used as propellant and petrol. (24)

I infer from all this evidence that Article 7(2) and (3) of Directive 2003/96 must be interpreted as meaning that that provision allows Member States to provide, with regard to the carriage of passengers, for a reduced rate of excise duty for gas oil used for the regular carriage of passengers without granting the same reduced rate for gas oil used for the occasional carriage of passengers.

That option cannot, however, be implemented arbitrarily and must, in my view, be exercised in accordance with the principles of EU law (25) and, in particular, the principle of equal treatment. (26)

That being so, such is the case, in my view, as regards the Italian legislation at issue in the main proceedings, since, unlike the Commission, I consider that the regular and occasional carriage of passengers have different characteristics and meet specific needs, so that a Member State may reserve the benefit of the reduced rate of excise duty for gas oil used for the regular carriage of passengers alone.

Whilst a regular passenger transport service, by definition, operates at set intervals on an established route, an occasional transport service is provided according to the specific need for the transport. (27)

Moreover, the regular carriage of passengers is an integral part of transport policy, in so far as it is involved in regional accessibility, for example.

In the light of all the above, I consider that the answer to the first question referred should be that Article 7(2) and (3) of Directive 2003/96 must be interpreted as meaning that, firstly, it applies, as regards the carriage of passengers, both to public and to private operators, on condition that, in accordance with Article 7(3) of that directive, such operators engage in the carriage of passengers, and that, secondly, the option granted to Member States by Article 7(2) of that directive allows a Member State to introduce a reduced rate of excise duty for gas oil used for the regular carriage of passengers without granting the same treatment to gas oil used for the occasional carriage of passengers.

Second and third questions referred

By its second and third questions, which I propose to examine together, the referring court asks the Court, in essence, about the direct effect of Article 7 of Directive 2003/96. In the light of the answer I propose to give to the first question, it is not necessary, in my view, to give a ruling on the direct effect of that provision. (28) Thus, it is only in the alternative and for the sake of completeness, in the event that the Court gives a different answer to the first question referred, that I put forward the following considerations.

I would observe from the outset that, if a Member State decides not to make use of the option provided for in Article 7(2) and (3) of Directive 2003/96, that provision has no direct effect.

In the event that a Member State has made use of that option and has transposed Article 7 of Directive 2003/96 incorrectly, I would point out that, according to well-established case-law, firstly, a provision is sufficiently precise to be relied on by an individual and applied by a national court where it sets out an obligation in unequivocal terms and, secondly, a provision is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the EU institutions or by the Member States. (29)

With regard to the first of those conditions, it must be held that Article 7 of Directive 2003/96 unquestionably allows Member States to introduce a reduced rate of excise duty solely for gas oil used in the regular carriage of passengers, whilst clearly requiring that minimum levels of taxation must be observed, that the rate set for commercial gas oil used as propellant should not be lower than the national level of taxation in force on 1 January 2003 and that carriage should be provided by means of certain categories of vehicles.

With regard to the second condition, the Court has held that the fact that a provision of a directive gives Member States a choice does not necessarily render it impossible to determine with sufficient precision, on the basis of the provisions of the directive alone, the content of the rights conferred on individuals. (30)

However, since the Italian legislature made use of that option and of the discretion granted by that provision, such discretion does not affect the precise and unconditional nature of the obligation to implement that option in a non-arbitrary way and to comply with the conditions laid down by the legislature.

In those circumstances, I propose that the second and third questions referred be answered to the effect that, in the event of national legislation such as that at issue in the main proceedings conflicting with Article 7(2) and (3) of Directive 2003/96, that provision would have direct effect, so that it could be directly relied on for purposes of obtaining the benefit of the reduced rate of excise duty on commercial gas oil used as propellant.

Conclusion

In the light of all the above considerations, I suggest that the Court should give the following answer to the questions referred for a preliminary ruling by the Commissione tributaria provinciale di Palermo (Provincial Tax Court, Palermo, Italy):

(1)Article 7(2) and (3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, must be interpreted as meaning that, firstly, it applies, as regards the carriage of passengers, both to public and to private operators, on condition that, in accordance with Article 7(3) of that directive, such operators engage in the carriage of passengers, and that, secondly, the option granted to Member States by Article 7(2) of that directive allows a Member State to introduce a reduced rate of excise duty for gas oil used for the regular carriage of passengers without granting the same treatment to gas oil used for the occasional carriage of passengers.

(2)In the event of national legislation such as that at issue in the main proceedings conflicting with Article 7(2) and (3) of Directive 2003/96, that provision would have direct effect, so that it could be directly relied on for purposes of obtaining the benefit of the reduced rate of excise duty on commercial gas oil used as propellant.

* * *

(*1) Original language: French.

(*2) OJ 2003 L 283, p. 51.

(*3) OJ, English Special Edition 1970(I), p. 96. Directive 70/156 was repealed by Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1). The definition given in Directive 2007/46 of vehicle categories M2 or M3 is the same as that given in Directive 70/156. They are vehicles comprising more than eight seats in addition to the driver’s seat, and having a maximum mass not exceeding 5 t (Category M2) or having a maximum mass exceeding 5 t (Category M3).

(*4) GURI No 68 of 23 March 2007, p. 5.

(*5) GURI No 279 of 29 November 1995, p. 5, ‘Legislative Decree No 504/1995’. That provision was introduced by Article 4b(1)(f) of decreto-legge n. 193 — Disposizioni urgenti in materia fiscale e per il finanziamento di esigenze indifferibili (Decree-Law No 193 — urgent fiscal provisions for the funding of immediate needs) of 22 October 2016 (GURI No 249 of 24 October 2016, p. 1), in force since 3 December 2016, converted, with amendments, into legge n. 225 — Disposizioni urgenti in materia fiscale e per il finanziamento di esigenze indifferibili (Law No 225 converting into law, with amendments, Decree-Law No 193 — urgent fiscal provisions for the funding of immediate needs) of 1 December 2016 (GURI No 282 of 2 December 2016, p. 1).

(*6) GURI No 287 of 10 December 1997, p. 4.

(*7) GURI No 6 of 9 January 2006, p. 12.

(*8) OJ 2009 L 300, p. 88.

(*9) It is clear from the file submitted to the Court that the applicant in the main proceedings is a private undertaking.

(*10) As is clear from the Italian Government’s observations, the specific result of the transposition of Article 7 of Directive 2003/96 into Italian law is that the reduced rate of excise duty provided for in Article 7 is applied to the ‘regular’ carriage of passengers, by scheduled transport services under State, regional or local responsibility, and is therefore denied to operators running ‘occasional’ bus services, a category that includes passenger services by means of the hire of a bus or coach with a driver.

(*11) I note that, according to the Court’s settled case-law, in determining the scope of a provision of EU law, its wording, context and objectives must all be taken into account (see judgment of 3 April 2014, Kronos Titan and Rhein-Ruhr Beschichtungs-Service (C‑43/13 and C‑44/13, EU:C:2014:216, paragraph 25 and the case-law cited); see also, with regard to the provisions concerning exemptions provided for by Directive 2003/96, judgment of 7 March 2018, Cristal Union (C‑31/17, C‑77/17 and C‑78/17, EU:C:2018:168, paragraph 21 and the case-law cited).

(*12) In the Spanish version of Directive 2003/96, the EU legislature used the conjunction ‘u’, in the German version, the word ‘oder’, in the English version, the word ‘whether’, in the Italian version, the conjunction ‘o’, and in the Polish version, the word ‘lub’.

(*13) See Le Nouveau Petit Robert — Dictionnaire alphabétique et analogique de la langue française, Dictionnaires Le Robert, Paris, 1996, p. 1555. See, inter alia, in the case-law, judgment of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others (C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55 and the case-law cited).

(*14) See 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).

See recitals 2 to 4 and Article 4(1) of Directive 2003/96. See, also, Opinion of Advocate-General Sharpston in X (C‑426/12, EU:C:2014:446, point 55).

See, to that effect, judgment of 1 March 2007, Jan De Nul (C‑391/05, EU:C:2007:126, paragraphs 18 to 23).

Most of those opportunities, with the obvious exception of the exemptions, have the obligation attached to respect the minimum levels of taxation prescribed by Directive 2003/96 (see Articles 5, 7 and 17 of that directive).

In that regard, I note that, in recital 9 of Directive 2003/96, the EU legislature expressly stated that ‘Member States should be given the flexibility necessary to define and implement policies appropriate to their national circumstances’.

See judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraphs 25 to 52).

The term ‘selective application’ is used by the Court in value added tax (VAT) matters and describes the possibility for Member States to apply a reduced rate of VAT to concrete and specific aspects of a category of supplies in respect of which they have the option to apply such a reduced rate (see, in that regard, my Opinion in Regards Photographiques (C‑145/18, EU:C:2019:184, point 30)). Although necessarily imperfect, the analogy between excise duties and VAT is, in my view, appropriate here since the Court acknowledges that Member States can reserve for certain undertakings or activities the benefit of a reduced rate of excise duty which they have the option to provide for.

See judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraph 50).

See judgments of 7 March 2018, Cristal Union (C‑31/17, EU:C:2018:168, paragraph 29 and the case-law cited), and of 27 June 2018, Turbogás (C‑90/17, EU:C:2018:498, paragraph 34 and the case-law cited).

Not provided for in the Commission’s initial proposal, that provision was inserted during the legislative procedure: see Proposal for a Council Directive restructuring the Community framework for the taxation of energy products [COM(97) 30 final].

As is clear from recital 20 of Directive 2003/96 and from the Commission’s press release of 27 October 2003, following the adoption of Directive 2003/96 (document IP/03/1456, available at: https://europa.eu/rapid/press-release_IP-03-1456_en.htm).

And also the rules on State aid, under Article 26 of Directive 2003/96 (see judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraph 51)).

See, by analogy, judgment of 9 November 2017, AZ (C‑499/16, EU:C:2017:846, paragraphs 29 and 30).

Although Directive 2003/96 does not define either regular transport or occasional transport, I note that, according to Article 2(2) and (4) of Regulation No 1073/2009, ‘regular services’ means services which provide for the carriage of passengers at specified intervals along specified routes, passengers being picked up and set down at predetermined stopping points and ‘occasional services’ means services which do not fall within the definition of regular services, including special regular services, and the main characteristic of which is the carriage of groups of passengers constituted on the initiative of the customer or the carrier himself.

By those questions, the referring court asks whether Article 7 of Directive 2003/96 has direct effect so an operator using commercial gas oil for the occasional carriage of passengers, like the applicant in the main proceedings, might obtain, under that provision, reimbursement of the excise duties unduly paid. Therefore, even where the unconditional and sufficiently precise provisions of a directive may be relied on by individuals against the Member State before the national courts, or where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see, inter alia, judgment of 17 July 2008, Flughafen Köln v Bonn (C‑226/07, EU:C:2008:429, paragraph 23), and order of 5 February 2015, Jednostka Innowacyjno-Wdrożeniowa Petrol (C‑275/14, not published, EU:C:2015:75, paragraph 33 and the case-law cited)), since it is clear from the answer I propose to give to the first question referred that the Italian Republic has not transposed Article 7 of Directive 2003/96 incorrectly, the question of whether that provision can be relied on does not arise.

See order of 5 February 2015, Jednostka Innowacyjno-Wdrożeniowa Petrol (C‑275/14, not published, EU:C:2015:75, paragraphs 34 and 36).

See judgment of 17 July 2008, Flughafen Köln v Bonn (C‑226/07, EU:C:2008:429, paragraph 30 and the case-law cited).