3.

That however does not conclude the matter. In order to effect an exhaustive examination of the subjectmatter of the proceedings it is on the contrary still necessary to deal with certain arguments put forward during the proceedings which are intended to conduce to a different appreciation of the problem. (a) Thus the argument that in matters in which domestic law is incompatible with Community law the legal consequences are governed by national law and in particular by national constitutional law was supported by reference to the judgments in Cases 34/67 (judgment of 4 April 1968 in firma Gebrüder Lück v Hauptzollamt Köln-Rheinau [1968] ECR 245) and Joined Cases 51 to 54/71 ([1971] ECR 1115 and 1116)51 to 54/71 (judgment of 15 December 1971 in International Fruit Company N.V. and Others v Produktschap voor Groenten en Fruit [1971] ECR 1107). In my opinion, however, it very soon becomes clear that nothing conclusive is to be found in these judgments. This certainly applies to the judgment in Joined Cases . The only question in fact at issue in mat judgment was whether the powers of Member States under the Treaty could be transferred to specific national bodies only by express provisions. On this question — and on this question only — the Court held that it is for the Member States to determine which institutions within the national legal system should be empowered to adopt measures under Article 5 of the Treaty, and that when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each Sute. However, the same applies also to the judgment in Case 34/67 ([1968] ECR 251). According to that judgment Article 95 of the Treaty has the effect of excluding the application of any national measure incompatible with it. Accordingly the question arose what effects the precedence of Community law has on conflicting national law, in particular whether the national court must treat such provisions as not being applicable in so far as they are incompatible with Community law or whether it must declare them void as from the expiry of the period prescribed by the third paragraph of Article 95 of the Treaty. On this question the Court held that it is for 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. In particular when an internal tax is incompatible with the first paragraph of Article 95 only beyond a certain amount it is for the national court to decide, according to the rules of its national law, whether the illegality affects the whole tax or only so much of it as exceeds that amount. That certainly does not justify the argument that, should there be a conflict between national and Community law, it is for the national legal system to confer upon the Constitutional Court the exclusive jurisdiction to find the necessary solution. (b) It was also pointed out the answer to the question whether national law is incompatible with Community law is not always clear-cut, even in cases in which there has previously been an interpretation of Community law in a preliminary ruling. In this connexion reference was made to the judgments in Case 60/75 (judgment of 22 January 1976 in Carmine Antonio Russo v Azienda di Stato per gli Intervenit sul Mercato Agricolo (AIMA) [1976] ECR 45) and Case 52/76 (already mentioned), in which the question for consideration was whether certain consequences of national law were unacceptable under Community law, and also to the judgment in Case 118/75 (already mentioned) in which such undefined concepts as ‘the reasonableness of the period fixed’ or observance of the principle of proportionality in the fixing of national penalties played a part. If in such cases it were left to each national court to consider the compatibility of national law with Community law, that might lead to widely varying assessments. That however would be incompatible with the principle of legal certainty and such consequences are ruled out under Italian law which concentrates jurisdiction to determine all such questions in the hands of the Constitutional Court. In my view the first thing to notice in this connexion is that the uncertainties in question certainly do not exist in cases in which a judgment under Article 169 of the EEC Treaty has also been delivered. However, even in such cases under Italian law their courts are not allowed simply to disregard national law which conflicts with the Treaty. With reference to the decided cases which have been quoted there is moreover this to be said. The first two judgments can scarcely be quoted in support of the proposition that the consideration of the question whether national law is compatible with Community law may prove to be difficult. The judgment in Case 60/75 makes quite clear what is to be regarded as unacceptable: influencing market conditions in such a way that prices fall below the level of the target prices, for example a sale of cereals by government intervendon agencies at prices below the level of the target prices. When on the other hand the judgment in Case 52/76 ([1977] ECR 163) omitted any final clarification and only stated in general terms that the objectives or the operation of the common organization of the market must not be jeopardized the principal reason was that, as was repeatedly stressed in the judgment, insufficient particulars and findings of fact had been supplied by the court making the reference. However, in so far as preliminary rulings admit of differing evaluations concerning the compatibility of national law with Community law — the Commission's claim that in most cases the discretion of the national court is very limited is certainly corren — it is in my view significant that it cannot always be clearly established when this situation arises and that it is hardly possible therefore to create a special category of those cases in respect of which it might be possible, if necessary, to accept the exclusive jurisdiction of the Constitutional Court. It is also particularly significant that bringing the national Constitutional Court into the matter would not in many such cases produce a decisive result. Such a court — as far as the criterion of ‘Community law’ is concerned — just cannot produce the greater clarification which is required. The European Court would on the contrary have jurisdiction in such a matter perhaps after a further reference for a preliminary ruling. For all these reasons the fan that the direct application of Community law by national courts from time to time requires a further clarification of questions of Community law and a more precise interpretation of its content can in my view scarcely be advanced as an argument against such direct application. (c) Finally when the questions are answered account must also be taken of the fan that the procedure adopted in Italy — a mandatory approach to the Constitutional Court — also has beneficial effects for Community law. In this connexion attention has been drawn to the fan that in such a case the declaration of the inapplicability of national law is not merely restricted to the grounds of a judgment, which moreover may be set aside again by a superior court, and which is restricted to the parties to the proceedings. The judgment of the Constitutional Court is final, it takes effen erga omnes and to all intents and purposes is tantamount to the annulment of the national law conflicting with Community law. In certain circumstances the parties may save time as a result of that procedure — for instance when there is an immediate application to the Constitutional Court at first instance — and the procedure avoids the danger that a given case will be decided differently by different courts; this is the particular reason why there is said to be a reinforcement of the effen of Community law because this procedure ensures a uniform application in all cases. The first point to be made in answer to these observations which are undoubtedly impressive is that Community law is not in any way concerned to eliminate, as it were, from Italian law the procedures designed to obtain a declaration that a national law is unconstitutional. What matters as far as Community law is concerned is only that its application — in those cases where direct applicability is intended — does not encounter any kind of obstacle under national law. However, the fact that the Constitutional Court alone is to have jurisdiction to bar the application of national law conflicting with Community law is — as I have shown — without any doubt to be regarded as an obstacle of this kind. It must also be stressed — because the case-law expressly refers to the rights of individuals — that for this Court the all important question in the examination of the problem is whether in a particular case the application of Community law can proceed without difficulties. That is obviously not the case with the Italian system under which Community law remains unapplied for a considerable period with all the attendant disadvantages as far as concerns conditions of competition for undertakings and individuals carrying on business in Italy or for individuals and undertakings from other Member States for whom access to the Iulian market is made more difficult. From the standpoint of Community law which must be uniformly applied everywhere that is unacceptable. In this respect there cannot be a kind of counterbalancing of these and other disadvantages — for example it may be the need to carry on proceedings before several courts — with the advantages which may be derived from decisions of the Constitutional Court for the implementation of Community law by reason of the fact that it is then established with binding force that certain national provisions can in no circumstances be applied any longer. (d) To sum up therefore, none of the arguments adduced during the proceedings in favour of a mandatory approach to the Constitutional Court can have decisive weight; consequently the answer to the first question must be the one dictated by the case-law of the Court, as I have previously demonstrated.