C‑391/22. – Tüke Busz Public Transport Ltd. | The local bus company in Pécs submitted a request to the tax authority for the refund of a portion of the excise duty on diesel fuel used for passenger transportation activities as specified by law.
The National Tax and Customs Administration (NAV) only partially granted the request: they refunded the amount calculated per liter for diesel fuel used for passenger transportation but denied the refund for diesel fuel used for service and refueling trips. According to the tax authority’s argument, repair or maintenance services are not aimed at passengers; therefore, these services do not fall under the definition of “passenger transportation services” as defined in sector-specific legislation.
The European Court of Justice, at the request of the Pécs Court, certainly interpreted not the definition of Hungarian passenger transportation services but the Energy Tax Directive (Directive 2003/96) to determine whether diesel fuel used indirectly for passenger transportation in the case of buses qualifies as “commercial diesel fuel.” The court referred back to its ruling in Case C-151/16 and affirmed that the concept of “commercial diesel fuel” under the directive applies to diesel fuel used directly for passenger transportation on roads by vehicles classified as M2 or M3 category (buses). Trips made for vehicle repair, maintenance, or refueling “empty” cannot be considered “passenger transportation” since they do not directly serve the provision of passenger transportation services. However, according to Hungarian excise tax law, no tax refund is granted for non-commercially used diesel fuel.
The ruling raises concerns not only for bus companies but also for road freight transporters using vehicles with a maximum permissible weight of at least 7.5 tons or articulated vehicles, suggesting that they document mileage for servicing and refueling purposes in the future.