IN CASE 29/68

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY BY THE FINANZGERICHT ( FINANCE COURT ), OF THE SAARLAND FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MILCH -, FETT - UND EIERKONTOR GMBH, HAMBURG,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) SAARBRUECKEN,

ON THE INTERPRETATION OF THE SAID TREATY AND ESPECIALLY ARTICLES 95 AND 97,

1 BY AN ORDER DATED 4 OCTOBER 1968, RECEIVED AT THE REGISTRY OF THE COURT OF JUSTICE ON 29 NOVEMBER 1968, THE FINANZGERICHT OF THE SAARLAND, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, HAS SUBMITTED SEVERAL QUESTIONS FOR THE PURPOSE OF OBTAINING AN INTERPRETATION OF ARTICLE 97 OF THE SAID TREATY .

I - THE JURISDICTION OF THE COURT

2 ( 1 ) THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY CONTENDS THAT QUESTIONS 1(A ), 1(B ), 2(A ), 2(C ) AND 5 ARE INADMISSIBLE .

IT POINTS OUT THAT THE COURT HAS ALREADY REPLIED TO THESE QUESTIONS IN ITS PRELIMINARY RULING ON 4 APRIL 1968 GIVEN IN CASE 25/67 ON A REFERENCE MADE BY THE SAME COURT IN THE SAME MAIN PROCEEDINGS .

A JUDGMENT GIVEN BY THE COURT UNDER ARTICLE 177 IS BINDING ON THE NATIONAL COURT HEARING THE CASE IN WHICH THE DECISION IS GIVEN .

3 AN INTERPRETATION GIVEN BY THE COURT OF JUSTICE BINDS THE NATIONAL COURT IN QUESTION BUT IT IS FOR THE LATTER TO DECIDE WHETHER IT IS SUFFICIENTLY ENLIGHTENED BY THE PRELIMINARY RULING GIVEN OR WHETHER IT IS NECESSARY TO MAKE A FURTHER REFERENCE TO THE COURT .

THIS OBJECTION CANNOT THEREFORE BE SUSTAINED .

4 ( 2 ) THE GERMAN GOVERNMENT POINTS OUT FURTHER THAT SOME OF THE QUESTIONS RAISED CONCERN ONLY THE APPLICATION OF THE TREATY OR THE INTERPRETATION AND APPLICATION OF NATIONAL LAW .

THE JUDGMENT MENTIONED ABOVE HELD THAT " ACCORDING TO COMMUNITY LEGISLATION CURRENTLY IN FORCE, 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 STATES IN QUESTION " AND THE GERMAN GOVERNMENT DEDUCES FROM THIS THAT IT IS FOR EACH NATIONAL LAW TO DETERMINE THE SCOPE OF THE CONCEPT " AVERAGE RATES " AND TO LAY DOWN THE CONDITIONS IN ACCORDANCE WITH WHICH SUCH A RATE MUST BE ESTABLISHED .

5 THE CONCEPT " AVERAGE RATE " USED IN ARTICLE 97 OF THE TREATY HAS A COMMUNITY SCOPE .

WHETHER THIS ARTICLE LEAVES THE SOLUTION OF PROBLEMS WHOLLY OR PARTLY TO THE NATIONAL LAW OF MEMBER STATES IS ANOTHER QUESTION .

IF THE COURT WERE TO HOLD THAT SUCH IS THE CASE THIS DECISION WOULD NONE THE LESS INVOLVE AN INTERPRETATION OF THE TREATY AND WOULD NOT THEREFORE GO OUTSIDE THE SCOPE OF ARTICLE 177 .

6 THIS OBJECTION CANNOT THEREFORE BE SUSTAINED .

II - THE SUBSTANCE OF THE CASE

7 ALTHOUGH ARTICLE 95 CREATES DIRECT INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT, THE SAME IS NOT THE CASE WITH ARTICLE 97 .

8 CONSEQUENTLY, IN ORDER TO ASCERTAIN WHETHER OR NOT THEY ARE FACED WITH INTERNAL TAXATION THE CONFORMITY OF WHICH WITH THE TREATY THEY ARE BOUND TO ASCERTAIN, THE SAID COURTS MUST BE IN A POSITION TO DECIDE WHETHER THE MEMBER STATE IN QUESTION HAS OR HAS NOT APPLIED ARTICLE 97 .

IT IS THEREFORE SOLELY IN THE LIGHT OF THIS REQUIREMENT THAT THE QUESTIONS SUBMITTED SHOULD BE CONSIDERED .

QUESTION 1(A )

9 IN QUESTION 1(A ) THE COURT MAKING THE REFERENCE ASKS THE COURT OF JUSTICE TO GIVE AN INTERPRETATION OF THE EXPRESSION USED IN THE FIRST PARAGRAPH OF ARTICLE 97 OF THE TREATY, ACCORDING TO WHICH THE MEMBER STATES MAY ESTABLISH AVERAGE RATES, PROVIDED THAT THERE IS NO INFRINGEMENT OF THE PRINCIPLES LAID DOWN IN ARTICLE 95 .

10 THE ABOVEMENTIONED POWER, MADE AVAILABLE TO MEMBER STATES WHICH LEVY A TURNOVER TAX CALCULATED ON A CUMULATIVE MULTI-STAGE TAX SYSTEM, MUST BE UNDERSTOOD IN THE LIGHT OF THE DIFFICULTIES ENCOUNTERED IN THE APPLICATION OF THE PROVISIONS OF ARTICLE 95 WITHIN THE FRAMEWORK OF SUCH A SYSTEM .

11 IN FACT IN SUCH A SYSTEM THE AGGREGATE AMOUNT OF SUCCESSIVE IMPOSITIONS OF TURNOVER TAX DIRECTLY OR INDIRECTLY BORNE BY DOMESTIC PRODUCTS, WHICH CONSTITUTES THE LEGAL CEILING ON THE CHARGE TO BE IMPOSED ON THE IMPORTED PRODUCT, MAY VARY FROM ONE CASE TO ANOTHER, PARTICULARLY BY REASON OF THE NUMBER OF TRANSACTIONS TO WHICH VARIOUS DIFFERENT TYPES OF A PARTICULAR PRODUCT ARE SUBJECT UP TO THE TIME WHEN THEY ARE DELIVERED TO THE FINAL CONSUMER .

IN THESE CIRCUMSTANCES THE POWER MADE AVAILABLE BY ARTICLE 97 PERMITS THE STATES CONCERNED TO TAX AN IMPORTED PRODUCT AT A SINGLE RATE DEEMED TO CORRESPOND TO THE AGGREGATE TAX BURDEN BORNE BY DOMESTIC PRODUCTS .

12 IN ORDER TO ENABLE THE NATIONAL COURT TO DECIDE WHETHER THE CASE BEFORE IT IS GOVERNED BY ARTICLE 97, IT IS ONLY NECESSARY FOR IT TO BE IN 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 TO HAVE IT REVIEWED .

IF, IN A PARTICULAR CASE, IT APPEARED POSSIBLE THAT THERE WERE AN INFRINGEMENT OF ARTICLE 97, SINCE NATIONAL COURTS ARE DEPRIVED OF SUCH POWER OF REVIEW, IT WOULD BE THE RESPONSIBILITY OF THE COMMISSION, UNDER THE SYSTEM INSTITUTED BY THE TREATY, TO ENSURE WITH EVEN GREATER VIGILANCE THE PROTECTION OF PERSONS CONCERNED .

14 IT IS, THEREFORE, SOLELY FOR THE PURPOSE OF ENABLING THE NATIONAL 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 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 .

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 ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT OF THE SAARLAND, A DECISION ON COSTS IS A MATTER FOR THAT COURT .