FROM THE BUNDESFINANZHOF, THE COURT RULED THAT ARTICLE 97 DOES NOT PRODUCE DIRECT EFFECTS AND DOES NOT CREATE INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .
REFERENCE SHOULD THEREFORE BE MADE TO THAT JUDGMENT .
II - THE CONCEPT OF ' AVERAGE RATE ' AND THE TAXATION REFERRED TO IN ARTICLE 95 ( FIRST, SECOND AND SIXTH TO TENTH QUESTIONS )
( 1 ) IN ITS FIRST QUESTION THE COURT MAKING THE REFERENCE ASKS THE COURT OF JUSTICE TO STATE IN A GENERAL MANNER ' WHAT MUST BE UNDERSTOOD BY " AVERAGE RATE " WITHIN THE MEANING OF ARTICLE 97 OF THE EEC TREATY '.
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THE SECOND, SIXTH AND SEVENTH QUESTIONS RAISED BY THE SAID COURT CONCERN PROBLEMS RELATING TO THE APPLICATION OF ARTICLE 97 BY NATIONAL COURTS AND IN PARTICULAR THE CONCEPT OF ' AVERAGE RATE ' MENTIONED ABOVE .
FOR THE PURPOSE OF ANY LEGAL REVIEW OF THE COMPATIBILITY OF THE SAID AVERAGE RATES WITH THE PRINCIPLES OF THE FIRST PARAGRAPH OF ARTICLE 95 THE FINANZGERICHT OF THE SAARLAND ASKS IN ITS EIGHTH, NINTH AND TENTH QUESTIONS WHETHER THE TAXATION OF CERTAIN TRANSACTIONS WHICH IT ENUMERATES IS COVERED BY THE EXPRESSION ' INTERNAL TAXATION...IMPOSED ... INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS ' APPEARING IN THE SAID FIRST PARAGRAPH .
( 2 ) AS TO THE FIRST AND SECOND QUESTIONS, BY VIRTUE OF THE FIRST PARAGRAPH OF ARTICLE 97 IT IS FOR THE MEMBER STATES TO ESTABLISH AVERAGE RATES, WITH THE COMMISSION ALONE HAVING POWER TO INTERVENE PURSUANT TO THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 97, AND IN CERTAIN CIRCUMSTANCES OF ARTICLE 169, AGAINST THE FAILURE TO CONFORM TO THE PRINCIPLES SET OUT IN ARTICLE 95, WITHOUT PREJUDICE TO THE RIGHTS CONFERRED BY ARTICLE 170 ON THE OTHER MEMBER STATES .
IN THESE CIRCUMSTANCES, IT IS NOT FOR THE NATIONAL COURTS TO APPRAISE WHETHER AVERAGE RATES HAVE BEEN ESTABLISHED IN ACCORDANCE WITH THE PRINCIPLES OF ARTICLE 95, ALTHOUGH IT DOES NOT FOLLOW THAT THOSE COURTS MAY NOT IN ANY CASE BE REQUIRED TO DECIDE WHETHER THEY ARE FACED WITH AN AVERAGE RATE COMING UNDER ARTICLE 97 OR WITH A TAXATION COMING UNDER ARTICLE 95 .
ACCORDING TO THE WORDING OF ARTICLE 97 ITS APPLICATION IS SUBJECT TO A DOUBLE CONDITION : FIRST THAT THE MEMBER STATE LEVIES A TURNOVER TAX BASED ON THE CUMULATIVE MULTI-STAGE TAX SYSTEM AND SECONDLY, THAT IT HAS IN FACT EXERCISED THE POWER MADE AVAILABLE TO IT BY THE SAID PROVISION AND ESTABLISHED AVERAGE RATES .
CONSEQUENTLY ACCORDING TO COMMUNITY LEGISLATION CURRENTLY IN FORCE, IN STATES WHICH HAVE EXERCISED THE POWER MADE AVAILABLE TO THEM BY ARTICLE 97, RATES ARE CONSIDERED AS ' AVERAGE RATES ', IF THEY ARE ESTABLISHED AS SUCH BY THE STATES IN QUESTION EVEN IF THEY WERE INTRODUCED BEFORE THE ENTRY INTO FORCE OF THE TREATY AND WITHOUT PREJUDICE TO THE OPERATION OF THE SECOND PARAGRAPH OF THAT ARTICLE .
THE FIRST AND SECOND QUESTIONS OF THE FINANZGERICHT SHOULD THEREFORE BE ANSWERED TO THAT EFFECT .
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