COURT TO DECIDE WHETHER THE MEMBER STATE HAS ACTUALLY EXERCISED THE POWER THAT IT IS NECESSARY TO INTERPRET THE PROVISIONS OF THE SAID ARTICLE WHICH SEEM NECESSARY AND SUFFICIENT FOR THE PERFORMANCE OF THAT EXAMINATION .
15 THE QUESTION WHETHER THE POWER MADE AVAILABLE BY ARTICLE 97 HAS ACTUALLY BEEN EXERCISED IN A PARTICULAR CASE IS, FROM THE POINT OF VIEW OF COMMUNITY LAW, A QUESTION WHICH NATIONAL COURTS MUST DECIDE WITHIN THE CONTEXT OF NATIONAL LAW .
16 IF A STATE HAS EXERCISED THE POWER MADE AVAILABLE TO IT BY ARTICLE 97, THE RATES WHICH IT HAS ESTABLISHED ARE GOVERNED BY THAT PROVISION, EVEN WHERE IT COULD BE SHOWN THAT THEY DO NOT CORRESPOND TO THE AGGREGATE TAX BURDEN BORNE BY DOMESTIC PRODUCTS .
THIS IS CLEAR FROM THE SECOND PARAGRAPH OF ARTICLE 97, WHICH MENTIONS A CASE " WHERE THE AVERAGE RATES...DO NOT CONFORM TO THESE PRINCIPLES ".
17 NEVERTHELESS, THAT DOES NOT MEAN THAT ARTICLE 97 AUTHORIZES MEMBER STATES TO MAKE AN ARBITRARY ESTIMATE OF THE TAX BURDEN BORNE BY DOMESTIC PRODUCTS .
IT IS, THEREFORE, FOR THE COMMISSION IN PARTICULAR TO CONFIRM THE ACCURACY OF SUCH AN ESTIMATE AND, IF NEED SHOULD ARISE, TO TAKE THE STEPS PROVIDED FOR IN THE SECOND PARAGRAPH OF ARTICLE 97, SUBJECT TO REVIEW BY THE COURT .
QUESTION 1(B ) 18 QUESTION 1(B ) ASKS WHETHER, UNDER A CUMULATIVE MULTI-STAGE TAX SYSTEM, IT MAY BE STATED THAT A RATE OF TAX INTRODUCED BEFORE THE ENTRY INTO FORCE OF THE EEC TREATY AND IMPOSED UPON A SINGLE STAGE OF MARKETING CONSTITUTES AN AVERAGE RATE WITHIN THE MEANING OF ARTICLE 97 OF THE SAID TREATY .
19 IN STATES WHICH HAVE EXERCISED THE POWER MADE AVAILABLE BY ARTICLE 97, AN " AVERAGE RATE " IS ANY RATE ESTABLISHED AS SUCH BY THE STATE CONCERNED, EVEN IF IT WAS ESTABLISHED PRIOR TO THE ENTRY INTO FORCE OF THE TREATY .
THE OPPOSITE INTERPRETATION WOULD SUBJECT THE EXERCISE OF THE POWER IN QUESTION TO THE INTRODUCTION OF NEW MEASURES, EVEN IN CASES WHERE THE EXISTING RATES CONFORMED TO THE PRINCIPLES OF ARTICLE 95 .
20 WITH REGARD TO THE SECOND PART OF THE QUESTION, IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT IT IS POSSIBLE, ALTHOUGH IT DEPENDS ON THE CIRCUMSTANCES OF THE CASE, THAT A RATE APPLICABLE AT A SINGLE STAGE OF MARKETING MAY CONSTITUTE AN " AVERAGE RATE " WITHIN THE MEANING OF ARTICLE 97 .
AS FAR AS NATIONAL COURTS ARE CONCERNED, INFRINGEMENT OF ARTICLES 95 AND 97 WOULD NOT MEAN THAT THE RATE IN QUESTION WAS NO LONGER AN " AVERAGE RATE ", BUT WOULD MERELY RENDER IT LIABLE TO THE MEASURES LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 97 .
21 IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE ANSWER TO QUESTION 1(B ) MUST BE IN THE AFFIRMATIVE .
QUESTIONS 2(A ), 2(B ) AND 2(C )
22 IN ANSWER TO QUESTION 2(A ), THE FINANZGERICHT WISHES TO BE INFORMED WHETHER, IN ORDER TO ESTABLISH AN AVERAGE RATE