RULE OF COMMUNITY LAW AND ITS IMPLEMENTATION OF LEGAL ACTS IMPLYING A DISCRETION; THIS MEANS THAT, IN THE PRESENT STATE OF COMMUNITY LAW, SUCH DISCRETION EXCLUDES THEIR CHOICE AND ITS CONSEQUENCES FROM ANY POSSIBILITY OF THE DIRECT APPLICABILITY OF THE RELEVANT PROVISIONS OF ARTICLE 97 .
ON THE OTHER HAND BOTH THE FIXING OF GROUPS OF PRODUCTS AND THE ESTABLISHMENT OF AVERAGE RATES REMAIN, IN THE ABSENCE OF ANY COMMUNITY PROVISION ON THE METHOD OF CALCULATING THEM, AT THE DISCRETION OF THE MEMBER STATE, EXERCISED UNDER THE COMMISSION'S SUPERVISION, AND PRECLUDE THE DIRECT APPLICABILITY OF ARTICLE 97 .
IN THESE CIRCUMSTANCES ARTICLE 97 CANNOT CONFER ON INDIVIDUALS THE INDIVIDUAL RIGHTS REFERRED TO BY THE PRESENT QUESTION OF THE BUNDESFINANZHOF . THIS CONCLUSION IS CONFIRMED BY THE SECOND PARAGRAPH OF ARTICLE 97 WHICH REQUIRES THE COMMISSION TO ADDRESS ' APPROPRIATE DIRECTIVES OR DECISIONS ' TO A STATE ESTABLISHING AVERAGE RATES WHICH DO NOT CONFORM TO THE PRINCIPLES OF ARTICLE 95 .
IT IS THEREFORE APPARENT FROM THE GENERAL SCHEME OF ARTICLE 97 THAT, WHERE A MEMBER STATE OPERATING THE CUMULATIVE MULTI-STAGE TAX SYSTEM HAS ELECTED TO HAVE RECOURSE TO THE PROCEDURE OF ESTABLISHING AVERAGE RATES, THE ARTICLE DOES NOT CREATE INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .
THE CONCEPT OF AVERAGE RATES ( QUESTION 3 )
IN ITS THIRD QUESTION THE BUNDESFINANZHOF ASKS THE COURT FOR A RULING AS TO ' WHAT MUST BE UNDERSTOOD BY AVERAGE RATES WITHIN THE MEANING OF ARTICLE 97 OF THE EEC TREATY ' AND WHETHER, ' HAVING REGARD TO THE REPLY TO THIS QUESTION ... THE DISPUTED RATE OF TURNOVER EQUALIZATION TAX OF 4 PER CENT APPLICABLE TO WHOLE-MILK POWDER CONSTITUTE(S ) AN AVERAGE RATE '.
UNDER THE FIRST PARAGRAPH OF ARTICLE 97, IT IS FOR THE MEMBER STATES TO ESTABLISH AVERAGE RATES, WITH THE COMMISSION ALONE HAVING POWER TO INTERVENE, PURSUANT TO THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 97, AND IN CERTAIN CIRCUMSTANCES OF ARTICLE 169, AGAINST THE FAILURE TO CONFORM TO THE PRINCIPLES SET OUT IN ARTICLE 95, WITHOUT PREJUDICE TO THE RIGHTS CONFERRED BY ARTICLE 170 ON THE OTHER MEMBER STATES .
P . 157
IN THESE CIRCUMSTANCES IT IS NOT FOR THE NATIONAL COURTS TO APPRAISE WHETHER AVERAGE RATES HAVE BEEN ESTABLISHED IN ACCORDANCE WITH THE PRINCIPLES OF ARTICLE 95, ALTHOUGH IT DOES NOT FOLLOW THAT THOSE COURTS MAY NOT IN ANY CASE BE REQUIRED TO DECIDE WHETHER THEY ARE FACED WITH AN AVERAGE RATE COMING UNDER ARTICLE 97 OR WITH TAXATION COMING UNDER ARTICLE 95 .
THE APPLICATION OF ARTICLE 97 IS SUBJECT TO A DOUBLE CONDITION; FIRST THAT THE MEMBER STATE LEVIES A TURNOVER TAX BASED ON THE CUMULATIVE MULTI-STAGE TAX SYSTEM AND SECONDLY THAT IT HAS IN FACT EXERCISED THE POWER MADE AVAILABLE TO IT BY THE SAID PROVISION AND ESTABLISHED AVERAGE RATES .
CONSEQUENTLY, 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