WITHIN THE MEANING OF ARTICLE 97 OF THE EEC TREATY, IT IS SUFFICIENT THAT THE BODY WHICH IS COMPETENT IN ACCORDANCE WITH THE LEGAL SYSTEM OF A MEMBER STATE SHOULD DECLARE THAT AN EXISTING RATE OF TAX IS AN AVERAGE RATE .
23 ACCORDING TO COMMUNITY LAW, SUCH A DECLARATION WOULD CONSTITUTE A SUFFICIENT PROOF IN LAW THAT THE MEMBER STATE HAS INTENDED TO EXERCISE THE POWER IN QUESTION .
24 SINCE QUESTION 2(A ) IS THEREFORE ANSWERED IN THE AFFIRMATIVE THERE IS NO NEED TO DEAL WITH THE ALTERNATIVES FORMULATED IN QUESTIONS 2(B ) AND 2(C ).
QUESTIONS 3 AND 4
25 THE THIRD QUESTION PUT BY THE FINANZGERICHT ASKS WHAT IS MEANT BY " GROUPS OF PRODUCTS " WITHIN THE MEANING OF ARTICLE 97 OF THE TREATY .
IN ITS FOURTH QUESTION IT ASKS THE COURT TO RULE WHETHER ALL GOODS CORRESPONDING TO IDENTICAL OR COMPARABLE DOMESTIC PRODUCTS FOR WHICH THE RATE OF TURNOVER EQUALIZATION TAX APPLICABLE DOES NOT DIFFER FROM THE NORMAL RATE, MAY FORM A GROUP OF PRODUCTS WITHIN THE MEANING OF ARTICLE 97 .
26 BY PERMITTING MEMBER STATES TO ESTABLISH AVERAGE RATES FOR GROUPS OF PRODUCTS THE TREATY MERELY INTENDED TO INDICATE THAT THE STATES ARE NOT BOUND TO ESTABLISH SEPARATE RATES FOR EACH PRODUCT .
NOTHING IN ARTICLE 97 ALLOWS THE CONCLUSION TO BE DRAWN THAT THE STATUS OF " AVERAGE RATE " DEPENDS ON THE COMPOSITION OF THE GROUPS COVERED BY THE RATE IN QUESTION .
27 CONSEQUENTLY, ARTICLE 97 DOES NOT EXCLUDE THE POSSIBILITY THAT PRODUCTS LIABLE TO A RATE OF TURNOVER EQUALIZATION TAX WHICH DOES NOT DIFFER FROM THE GENERAL RATE MAY FORM A GROUP OF PRODUCTS WITHIN THE MEANING OF THE SAID ARTICLE 97 .
QUESTION 5
28 THE FIFTH QUESTION, WHICH REPEATS CERTAIN QUESTIONS RAISED BY THE SAME COURT IN ITS EARLIER REFERENCE, WAS FORMULATED ONLY IN CASE THE COURT SHOULD GIVE A NEGATIVE REPLY EITHER TO QUESTION 2(A ) OR TO QUESTION 4 .
29 AS NEITHER OF THESE CONDITIONS HAS BEEN FULFILLED, THERE IS NO NEED TO ANSWER THESE QUESTIONS .
THE QUESTIONS RELATING TO ARTICLES 7 AND 40 OF THE TREATY
30 IN CASE THE COURT SHOULD CONSIDER THAT IN ESTABLISHING THE DISPUTED RATE THE GERMAN LEGISLATURE HAS INFRINGED ARTICLES 7 AND 40 OF THE TREATY, THE FINANZGERICHT RAISES CERTAIN QUESTIONS RELATING TO THE INTERPRETATION OF THESE ARTICLES .
31 IN ORDER TO DECIDE WHETHER IT WAS NECESSARY TO REPLY TO THESE QUESTIONS THE COURT WOULD FIRST BE OBLIGED TO DECIDE UPON THE VALIDITY, WITH REGARD TO THE TREATY, OF A MEASURE OF NATIONAL LAW, WHICH IT IS NOT COMPETENT TO DO WITHIN THE FRAMEWORK OF ARTICLE 177 .
32 IT CANNOT THEREFORE ADMIT THEM .
Decision on costs
33 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN