DECIDE WHETHER THE CASE BEFORE IT IS GOVERNED BY ARTICLE 97, IT IS ONLY NECESSARY FOR IT TO BE IN A POSITION TO DECIDE, ON THE ONE HAND, WHETHER THE SAID CASE INVOLVES A TURNOVER TAX CALCULATED ON A CUMULATIVE MULTI-STAGE TAX SYSTEM AND, ON THE OTHER HAND, WHETHER THE MEMBER STATE HAS ACTUALLY EXERCISED THE POWER MADE AVAILABLE TO IT BY THE SAID ARTICLE . IF THE NATIONAL COURT CAN ESTABLISH THE EXISTENCE OF THESE TWO FACTORS, IT MERELY REMAINS FOR THE COMMISSION AND THE OTHER MEMBER STATES TO PUT INTO OPERATION THE MACHINERY PROVIDED FOR THEM BY THE SECOND PARAGRAPH OF ARTICLE 97 AND BY ARTICLES 169, 170 AND 173, TO REVIEW THE LEGALITY OF THE MEASURES ADOPTED OR HAVE IT REVIEWED .
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 .
4 . 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 .
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 .
5 . IN ORDER TO ESTABLISH AN AVERAGE RATE 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 .
6 . UNDER A CUMULATIVE MULTI-STAGE TAX SYSTEM, A RATE APPLICABLE TO A SINGLE STAGE OF MARKETING MAY CONSTITUTE AN AVERAGE RATE WITHIN THE MEANING OF ARTICLE 97 OF THE EEC TREATY . 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 .
7 . 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 .
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 THAT ARTICLE .
Parties
IN CASE 29/68
REFERENCE TO THE