Opinion of the Advocate General — ECLI:EU:C:1999:253
Date: 1999-05-19
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Community law — Rights conferred on individuals — Where breached by a Member 
State — Obligation to make good damage caused to individuals by a public-law 
body — Possibility of that body, in addition to the Member State, being liable 
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SUMMARY — CASE C-424/97 
2. Community law — Rights conferred on individuals — Breach by a Member State — 
Obligation to make good damage caused to individuals — Conditions — Sufficiently 
serious breach — Definition 
3. Freedom of movement for persons — Freedom of establishment — Freedom to provide 
services — Practitioners of dentistry — Appointment, as a social security dental 
practitioner, of a national of another Member State — Requirement of linguistic 
knowledge — Permissible — Limits 
(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC); Council Directive 78/686, 
Art. 3) 
1. It is for each Member State to ensure 
that individuals obtain reparation for 
loss and damage caused to them by 
non-compliance with Community law, 
whichever public authority is responsi­
ble for the breach and whichever public 
authority is in principle, under the law 
of the Member State concerned, 
responsible for making reparation. 
However, reparation for loss and 
damage caused to individuals by 
national measures taken in breach of 
Community law does not necessarily 
have to be provided by the Member 
State itself in order for its obligations 
under Community law to be fulfilled. 
Thus, in the Member States in which 
certain legislative or administrative 
tasks are devolved to territorial bodies 
with a certain degree of autonomy or 
to any other public-law body legally 
distinct from the State, reparation for 
that loss and damage caused by mea­
sures taken by a public-law body may 
be made by that body. 
Nor does Community law preclude a 
public-law body, in addition to the 
Member State itself, from being liable 
to make reparation for loss and 
damage caused to individuals as a 
result of measures which it took in 
breach of Community law. 
(see paras 27, 29, 31-32, 34, 
and operative part 1) 
2. In order to determine whether there is a 
serious breach of Community law, qua 
one of the conditions to be satisfied for 
a Member State to be required to make 
reparation for loss and damage caused 
to individuals as a result of breaches of 
Community law for which the State 
can be held responsible, account must 
be taken of the extent of the discretion 
enjoyed by the Member State con­
cerned. The existence and the scope 
of that discretion must be determined 
by reference to Community law and 
not by reference to national law. The 
discretion which may be conferred by 
national law on the official or the 
institution responsible for the breach 
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HAIM 
of Community law is therefore irrele­
vant in this respect. 
In order to determine whether a mere 
infringement of Community law by a 
Member State constitutes a sufficiently 
serious breach, a national court hearing 
a claim for reparation must take 
account of all the factors which char­
acterise the situation put before it. 
Those factors include, in particular, 
the clarity and precision of the rule 
infringed, whether the infringement 
and the damage caused was intentional 
or involuntary, whether any error of 
law was excusable or inexcusable, and 
the fact that the position taken by a 
Community institution may have con­
tributed towards the adoption or main­
tenance of national measures or prac­
tices contrary to Community law. 
(see paras 36, 40, 41-43, 49, 
and operative part 2) 
3. The competent authorities of a Mem­
ber State may make the appointment, 
as a social security scheme dental 
practitioner, of a national of another 
Member State who is established in the 
first Member State and authorised to 
practise there but has none of the 
qualifications mentioned in Article 3 
of Directive 78/686 concerning the 
mutual recognition of diplomas, certi­
ficates and other evidence of the formal 
qualifications of practitioners of den­
tistry, including measures to facilitate 
the effective exercise of the right of 
establishment and freedom to provide 
services, conditional upon his having 
the linguistic knowledge necessary for 
the exercise of his profession in the 
Member State of establishment. 
The reliability of a dental practitioner's 
communication with his patient and 
with administrative authorities and 
professional bodies constitutes an over­
riding reason of general interest such as 
to justify making the appointment as a 
dental practitioner under a social secur­
ity scheme subject to language require­
ments. However, it is important that 
such language requirements do not go 
beyond what is necessary to attain that 
objective. In this respect, it is in the 
interest of patients whose mother ton­
gue is not the national language that 
there exist a certain number of dental 
practitioners who are also capable of 
communicating with such persons in 
their own language. 
(see paras 59-61, and operative part 3) 
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