ARTICLES 9, 12 AND 13 OF THE TREATY .
NOTHING IN REGULATION NO 22 LEADS TO THE CONCLUSION THAT THIS REGULATION IS INTENDED TO GIVE THIS CONEPT A SCOPE DIFFERENT FROM THAT WHICH IT BEARS WITHIN THE FRAMEWORK OF THE TREATY ITSELF .
ARTICLES 12 AND 13 ON THE ONE HAND AND ARTICLE 95 ON THE OTHER CANNOT BE APPLIED TOGETHER TO A SINGLE SET OF FACTS .
CONSEQUENTLY IT IS DIFFICULT TO CONCLUDE THAT WITHIN THE SYSTEM OF THE TREATY ONE AND THE SAME CHARGE MAY AT THE SAME TIME BE A ' CHARGE HAVING EQUIVALENT EFFECT ' WITHIN THE MEANING OF ARTICLES 9, 12 AND 13 AND ALSO ' INTERNAL TAXATION ' FOR THE PURPOSES OF ARTICLES 95 AND 97 .
AN EQUALIZATION TAX SUCH AS THAT WHICH IS THE SUBJECT OF THE MAIN ACTION LEVIED WITHIN THE FRAMEWORK OF TURNOVER TAX LEGISLATION AND WHICH IS INTENDED TO PLACE ALL CATEGORIES OF PRODUCTS BOTH DOMESTIC AND IMPORTED IN A COMPARABLE TAX POSITION, AMOUNTS TO INTERNAL TAXATION WITHIN THE MEANING OF ARTICLE 95 .
IF IN THE CASE OF A GIVEN IMPORTED PRODUCT IT WERE TO EXCEED THE TOTAL AMOUNT OF THE DIRECT OR INDIRECT CHARGES ON THE EQUIVALENT DOMESTIC PRODUCT, IT WOULD THEN BE SUBJECT TO THE PROHIBITIONS CONTAINED IN ARTICLES 95 AND 97, BUT EVEN SO, WOULD NOT HAVE THE NATURE OF ' A CHARGE HAVING EQUIVALENT EFFECT '.
IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE REPLY TO THE ELEVENTH QUESTION OF THE FINANZGERICHT IS IN THE NEGATIVE .
IN THESE CIRCUMSTANCES THE TWELFTH QUESTION WHICH WAS RAISED ONLY IN CASE THE COURT MIGHT REPLY AFFIRMATIVELY TO THE PRECEDING QUESTION HAS BECOME IRRELEVANT .
Decision on costs
THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT OF THE SAARLAND, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT OF THE SAARLAND, BY ORDER OF THAT COURT OF 19 JUNE 1967, HEREBY RULES :
1 . THE FIRST PARAGRAPH OF ARTICLE 97, WHICH APPLIES WHERE MEMBER STATES OPERATING A TURNOVER TAX ACCORDING TO THE CUMULATIVE MULTI-STAGE SYSTEM HAVE ACTUALLY EXERCISED THE RIGHT THEREIN GRANTED TO THEM, DOES NOT CREATE INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT;
2 . 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, WITHOUT PREJUDICE TO THE OPERATION OF THE SECOND PARAGRAPH OF THAT ARTICLE;
3 . A TAX WHICH IS LEVIED WITHIN THE FRAMEWORK OF TURNOVER TAX LEGISLATION AND IS DESIGNED TO PLACE ALL CATEGORIES OF PRODUCTS BOTH DOMESTIC AND IMPORTED IN A COMPARABLE