JUDGMENT OF 4. 4. 1968 — CASE 34/67 LOCK v HAUPTZOLLAMT KÖLN

In Case 34/67 Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Finanzgericht (Finance Court), Düsseldorf, for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner (Rapporteur) and W. Strauß, Presidents of Chambers, A. Trabucchi, R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

1. Origin of the case

2. Content of the order making the reference; discussion by the Finanzgericht

Question 1

Question 2

Question 3

3. Procedure

II — Observations submitted under Article 20 of the Statute of the Court of Justice

Question 1

Question 2

Question 3

Grounds of judgment

Costs

I —. Summary of facts and procedure

1. Origin of the case

2. Content of the order making the reference; discussion by the Finanzgericht

A —. On 6 September 1967 the IVth Senate of the Finanzgericht decided to ask the Court for a preliminary ruling on the following questions:

B —. The Finanzgericht considers it now unnecessary to refer again to the Court the question of the direct rights of individuals to plead before national courts Article 97 in conjunction with Article 95 of the Treaty. It considers that Article 97 must be regarded not as an independent provision, but merely as a special rule for adapting Article 95, according to which an average rate determined solely in the light of the principle of non-discrimination is substituted for the precise calculation of the taxation on a domestic product at earlier stages of production. According to the Finanzgericht Article 97 in no way modifies the rights enjoyed by persons concerned under Article 95.

3. Procedure

II —. Observations submitted under Article 20 of the Statute of the Court of Justice

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the Government of the Federal Republic of Germany, the Commission of the European Communities and the plaintiff in the main action; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 95, 97 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; Having regard to the judgment of the Court of Justice of 3 April 1968 in Case 28/67, delivered following reference from the Bundesfinanzhof (Federal Finance Court); THE COURT in answer to the questions referred to it by the Finanzgericht, Düsseldorf, by order of that court of 6 September 1967, hereby rules:

1 The first paragraph of Article 97, applicable where Member States levying a turnover tax calculated on a cumulative multi-stage tax system in fact exercise the option which it gives to them, does not create rights which national courts must protect;

2 Taxation imposed on a domestic product within the meaning of Article 95 of the Treaty means taxation imposed at the rate which results from the application of the law;

3 Article 95 of the Treaty does not restrict the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting the individual rights conferred by Community law.