MAINTAINS THE JUDGMENT WHICH IT GAVE ON 16 JUNE 1966 IN CASE 57/65 UNDER THE TERMS OF WHICH THE FIRST PARAGRAPH OF ARTICLE 95 PRODUCES DIRECT EFFECTS AND CREATES INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT '.
IN THE SECOND PART OF THE SAME QUESTION THE COURT MAKING THE REFERENCE WISHES TO KNOW WHETHER ARTICLE 95 ' CAN...CONFER UPON INDIVIDUALS THE RIGHT TO REQUIRE BEFORE NATIONAL COURTS THAT, DESPITE THE AS YET UNAMENDED TERMS OF THE LAW, THEY SHOULD BE PLACED IN THE SAME POSITION AS IF THE MEMBER STATE HAD FULFILLED THE OBLIGATION WHICH THIS ARTICLE IMPOSES ON IT WITH REGARD TO LEGISLATION,...IN OTHER WORDS ' WHETHER ' THE THIRD PARAGRAPH OF ARTICLE 95 HAS CREATED A BREACH IN LEGISLATIVE SOVEREIGNTY...IN THE FIELD OF INTERNAL TAXATION AS WELL '.
A - THE BUNDESFINANZHOF STATES FIRST OF ALL THAT IT FINDS NO SUPPORT IN THE PROVISION IN QUESTION FOR THE INTERPRETATION GIVEN TO THE JUDGMENT OF THE COURT .
WHETHER OR NOT THIS ARGUMENT IS WELL FOUNDED MUST BE CONSIDERED IN THE LIGHT OF BOTH THE WORDING OF ARTICLE 95 AND THE CHARACTER AND SPIRIT OF THE TREATY ESTABLISHING THE EEC . THE OBJECTIVE OF THE EEC TREATY, WHICH IS TO ESTABLISH A COMMON MARKET THE FUNCTIONING OF WHICH IS OF DIRECT CONCERN TO INTERESTED PARTIES IN THE COMMUNITY, IMPLIES THAT THIS TREATY IS MORE THAN AN AGREEMENT WHICH MERELY CREATES MUTUAL OBLIGATIONS BETWEEN THE CONTRACTING STATES . THE COMMUNITY CONSTITUTES A NEW LEGAL ORDER, FOR THE BENEFIT OF WHICH THE STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS, ALBEIT WITHIN LIMITED FIELDS, AND THE SUBJECTS OF WHICH COMPRISE NOT ONLY THE MEMBER STATES BUT ALSO THEIR NATIONALS . INDEPENDENTLY OF THE LEGISLATION OF MEMBER STATES, COMMUNITY LAW THEREFORE NOT ONLY IMPOSES OBLIGATIONS ON INDIVIDUALS BUT IS ALSO INTENDED TO CONFER UPON THEM RIGHTS WHICH BECOME PART OF THEIR LEGAL HERITAGE . THESE RIGHTS ARISE NOT ONLY WHERE THEY ARE EXPRESSLY GRANTED BY THE TREATY BUT ALSO BY REASON OF OBLIGATIONS WHICH THE TREATY IMPOSES IN A CLEARLY DEFINED WAY UPON INDIVIDUALS AS WELL AS UPON THE MEMBER STATES AND UPON THE INSTITUTIONS OF THE COMMUNITY .
IN THIS CONNEXION IT IS NECESSARY AND SUFFICIENT THAT THE VERY NATURE OF THE PROVISION OF THE TREATY IN QUESTION SHOULD MAKE IT IDEALLY ADAPTED TO PRODUCE DIRECT EFFECTS ON THE LEGAL RELATIONSHIP BETWEEN MEMBER STATES AND THOSE SUBJECT TO THEIR JURISDICTION . THE FIRST PARAGRAPH OF ARTICLE 95 CONTAINS A PROHIBITION AGAINST DISCRIMINATION, CONSTITUTING A CLEAR AND UNCONDITIONAL OBLIGATION . THIS OBLIGATION IS NOT QUALIFIED BY ANY CONDITION, OR SUBJECT, IN ITS IMPLEMENTATION OR EFFECTS, TO THE TAKING OF ANY MEASURE EITHER BY THE INSTITUTIONS OF THE COMMUNITY OR BY THE MEMBER STATES . THIS PROHIBITION IS THEREFORE COMPLETE, LEGALLY PERFECT AND CONSEQUENTLY CAPABLE OF PRODUCING DIRECT EFFECTS ON THE LEGAL RELATIONSHIPS BETWEEN MEMBER STATES AND PERSONS WITHIN THEIR JURISDICTION . THE FACT THAT THIS ARTICLE DESCRIBES THE MEMBER STATES AS BEING SUBJECT TO THE OBLIGATION OF NON-DISCRIMINATION DOES NOT IMPLY THAT INDIVIDUALS CANNOT