61997CC0424_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This is the second time that the Court has been called upon to give a preliminary ruling on questions referred to it by a German court hearing the proceedings which have been in progress for over ten years between Mr Haim and the German authorities.
2. Mr Haim is an Italian national who, on completion of his dental studies in Turkey, obtained the diploma in dentistry in that State and practised as a dentist there until 1980. In 1981, he obtained permission (Approbation) to practise as a dental practitioner in Germany. It was in Belgium, however, where his Turkish diploma was recognised by the competent authorities in 1982 as equivalent to the Belgian diploma in dentistry, that he practised as a dentist under a social security scheme until 1991. At the end of that year, he interrupted that activity in Belgium in order to go and work as an assistant in his son's practice in Germany, returning to his previous work in Belgium in 1993.
3. In the meantime, Mr Haim had applied to the Kassenzahnärztliche Vereinigung Nordrhein (Nordrhein Association of Dental Practitioners of Social Security Schemes; hereinafter the KVN) for enrolment on the register of dental practitioners so that he could treat patients affiliated to social security schemes.
4. That application was refused on 10 August 1988 on the ground that the relevant German rules require applicants to have completed a preparatory training period of at least two years, which Mr Haim had not done. That requirement can be waived only in the case of dental practitioners who have obtained in another Member State of the Community a qualification recognised under Community law and who are authorised to practise that profession. That was not true of Mr Haim, whose Turkish diploma had only been recognised as equivalent in a Member State.
5. Contesting the validity of that refusal, Mr Haim brought proceedings against the KVN, in the course of which the Bundessozialgericht referred several questions to the Court of Justice for a preliminary ruling.
6. In Case C-319/92, the Court held, first, essentially, that since Mr Haim's diploma had been awarded to him in Turkey the KVN's decision did not infringe the provisions of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, and, second, that [i]t is not permissible under Article 52 of the EEC Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/EEC, but who has been authorised to practise, and has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State, without examining whether and, if so, to what extent, the experience already established by the person concerned corresponds to that required by that provision.
7. Following that judgment, Mr Haim was enrolled on the register at the beginning of 1995, but, on account of his age, he did not pursue the procedure for appointment as a dental practitioner under a social security scheme.
8. Mr Haim is now seeking compensation for the pecuniary damage arising from a loss of earnings which he claims to have suffered because, in breach of Community law, he was prevented from working in Germany as a dental practitioner under a social security scheme from 1988 until the end of 1994. He has instituted proceedings against the KVN before the Landgericht Düsseldorf in furtherance of that claim.
9. It is the view of that court that Mr Haim's claim for compensation cannot be allowed under German law. It considers, first, that the KVN did not commit a wrong under German law in refusing to enrol Mr Haim on the register of dental practitioners, despite the fact that its decision was unlawful, and, second, that the applicant cannot rely on the rules relating to interference equivalent to expropriation since he was denied only the prospect of building up a dental practice in Germany, which might have been profitable, treating patients affiliated to social security schemes.
10. The Landgericht considers, however, that it should ascertain whether, in the light of the Court's case-law, in particular the judgments in Francovich and Others, Brasserie du Pêcheur and Factortame and Hedley Lomas, and in view of the fact that the refusal in 1988 infringed Article 52 of the EC Treaty (now, after amendment, Article 43 EC), a provision having direct effect, Mr Haim derives a right to reparation directly from Community law. It therefore referred the following questions to the Court in its order of 8 December 1997:
1. If an official of a legally independent public-law body of a Member State infringes primary Community law when applying national law in the context of an individual decision, can the public-law body be held liable as well as the Member State?
2. If so: Where a national official has either applied national law conflicting with Community law or applied national law in a manner not in conformity with Community law, is there a serious breach of Community law simply on the ground that the official had no discretion in making his decision?
3. May the competent authorities of a Member State make appointment, as a social security scheme dental practitioner, of a national of another Member State who is authorised to practise in that Member State but has none of the qualifications mentioned in Article 3 of Directive 78/686, conditional upon that person's having the linguistic knowledge which he needs for the exercise of his professional activity in the host State?
11. I shall consider them in that order.
The first question
12. This question concerns the possibility of putting in issue the liability of both the State and the autonomous public body to which is attached the official who infringed Community law when taking an individual decision.
13. It is very closely linked to the circumstances of the adoption of the decision infringing Community law which Mr Haim asserts caused the loss in respect of which he is entitled to receive reparation.
14. That decision, signed by one of its officials, was taken by the KVN, a public-law body which is legally independent not only of the German Federal Government but also of the Land of Nordrhein, on the basis of an instrument, the Zulassungsordnung für Zahnärzte (hereinafter the ZOZ), which, according to the national court, has legislative force.
15. According to the national court, we are therefore placed in a situation involving two unlawful measures, one administrative and the other legislative, in which the question therefore arises, which has not so far been considered as such in the case-law of the Court, as to the consequences as regards liability of the combination of those two unlawful measures.
16. Should the person to whom the individual unlawful decision is addressed put in issue the liability of the autonomous public-law body which issued it or, since that body was only applying the legislation in force, that of the State, since it is answerable for any breaches of Community law committed by its legislature, or is he entitled to make a claim against both of them cumulatively?
17. I shall say straight away that the national court is both right and wrong in asserting that this question has so far not been settled in the case-law of the Court.
18. It is right to the extent that, in none of the judgments the Court has given concerning the liability of Member States for infringement of Community law, has it had occasion to rule on whether an autonomous public-law body which has adopted an individual decision in breach of Community law may be held liable as well as the Member State.
19. However, it interprets the case-law of the Court wrongly in considering that this is a question of Community law which has not been resolved in that case-law.
20. Even if the question which concerns the national court has not so far received an explicit answer in the case-law of the Court because it has not been raised, it has nevertheless, and on numerous occasions, received an answer which, although implicit, is none the less clear. That answer, which is given in Francovich and Others, and which has not changed since then because it is also to be found in Brasserie du Pêcheur and Factortame and Hedley Lomas, is contained in two words: procedural autonomy.
21. What is meant by that in relation to the liability incurred by a Member State to an individual in the event of a breach of Community law by the State? Quite simply, as is apparent from Francovich and Others, provided that the right to reparation is founded directly on Community law, where the conditions giving rise to Member State liability to the individual laid down by the Community judicature are met, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused.
22. This dichotomy, which results in a distinction between the substantive right possessed by the individual, because Community law confers it on him, and the conditions under which he can assert that right, which are defined by national law, is not to be found only where a Member State incurs liability for a breach of Community law. It also exists wherever the Community legal order creates rights for individuals but does not lay down the conditions under which they may be asserted against State authorities. It is to be found as early as in Rewe, a case relating to the right of economic operators to oppose the levying of charges having equivalent effect, in which the Court held that in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law.
23. It is not, however, a dichotomy inherent in relations between the Community legal order and the domestic legal order, because there are areas, such as the award of public contracts, where Community law does not merely create rights and leave Member States to lay down the conditions for exercising them, but also sets out the procedures which Member States must introduce for individuals to be able to assert those rights.
24. Not surprisingly, that is not so as regards liability for breach of Community law, since the principle of such liability, although inherent in the system of the Treaty, according to Francovich and Others, is a creation of the case-law.
25. Thus it is national law which must define all the conditions under which the result prescribed by Community law, namely reparation for loss or damage sustained by an individual, will be able to be achieved.
26. Although Member States have been given this freedom to lay down the rules applying to their own liability, but not to challenge the principle, that freedom is strictly regulated, as in all cases where Member States are granted procedural autonomy.
27. First, whenever the Court acknowledges that Member States have procedural autonomy in a particular area, it lays down certain rules which they must strictly observe when exercising that autonomy. Francovich and Others is no exception to this practice, which stems from a concern to avoid any misunderstanding, since the Court ruled in that judgment that the substantive and procedural conditions for reparation of loss and damage laid down by the national law of the Member States must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.
28. Second, in Brasserie du Pêcheur and Factortame, the Court was moved to hold that certain detailed rules for the application of the scheme of reparation of loss or damage suffered by an individual as a result of breach of Community law by a Member State are unacceptable as such, irrespective of whether they are to be applied when the liability of the State for infringement of a rule of domestic law is put in issue. The Court therefore ruled that [p]ursuant to the national legislation which it applies, reparation of loss or damage cannot be made conditional upon fault (intentional or negligent) on the part of the organ of the State responsible for the breach, going beyond that of a sufficiently serious breach of Community law, and that [n]ational legislation which generally limits the damage for which reparation may be granted to damage done to certain, specifically protected individual interests not including loss of profit by individuals is not compatible with Community law.
29. To revert to the question referred by the national court, it must be stated, as the various governments which have submitted observations and the Commission all agree, that whether or not it is admissible to proceed against both the State and an independent public body where that body has infringed Community law merely by applying legislation adopted by the State is clearly an aspect of the scheme of reparation which it is for the Member State to decide as part of its procedural autonomy.
30. As regards the Community, it is, of course, indisputable, and there is a wealth of case-law in proceedings for failure to act which bears this out, that it is the Member State which is liable for any breach of Community law, irrespective of whether it is a public authority, the State, a local authority, or an independent public body which is at fault according to the division of powers within that State. Community law has borrowed this principle from public international law, which traditionally recognises only the State as having rights and obligations and is totally indifferent to the way in which the domestic legal system of each State provides for the exercise of State powers.
31. As regards individuals, however, there is nothing to prevent the State from standing back and letting its authorities face the consequences of a breach of Community law which those authorities have committed in the exercise of their own powers. It might be claimed in support of that stance that, since liability should be the corollary of power in a democratic system, it would be irrational for the State to have to take responsibility for the actions of local authorities whose autonomy it is bound to respect under the constitution. On the other hand, it might be claimed that it would hardly be rational, in view of the strict hierarchy of norms which applies in theory under domestic law, to hold an independent body in any way liable for an act where, although that act is legally attributable to it, the content of the act is predetermined by legislation with which it is bound strictly to comply.
32. The objection may in turn be raised against this view, however, that an independent body cannot evade its liability by claiming that it was only complying with national law, since the case-law of the Court, as it originated in Simmenthal and was expanded as regards administrative authorities in Fratelli Costanzo, further confirmed very recently in Ciola, imposes an obligation on all national authorities, including administrative authorities, to ensure that Community law takes precedence, disregarding if necessary any national rule which might stand in the way. The issue, as one sees, is particularly complex, and there can be no question of resolving it here. The reason I have outlined it above is merely to show how many different answers there can be to the question of where an individual should address his action. The choice made by each national legal system will probably be influenced by the solutions adopted in similar cases, such as where an individual decision adopted by a decentralised body, although consistent with the requirements of the law, fails to respect a right conferred on an individual by the constitution.
33. There is no objection to be raised from the point of view of Community law to solutions being transposed where public authorities are rendered liable on the basis of domestic law alone. Quite the contrary, since this would meet the requirements laid down in Francovich and Others, referred to above, that the substantive and procedural conditions in respect of a claim of liability for breach of Community law must not be less favourable than those relating to similar purely domestic claims.
34. Although it thus appears that there is no objection in principle under Community law to the choices which a national legal system may make as to which public authority should be proceeded against in the event of a breach of Community law such as that in Mr Haim's case, that is clearly on condition that the choice concerned does not have the effect of leading the plaintiff into a cul-de-sac. Such a situation might arise, for example, where national law provided for the possibility of a claim only against the body to which the individual decision must be attributed, whilst also providing that that body can incur liability only in the case of a serious breach, or adopting strict compliance with the law as a ground for exemption from liability. There is no need to dwell on such an eventuality here because it is one which the Court of Justice in Brasserie du Pêcheur and Factortame rightly held could not be supported under procedural autonomy, and also because it does not arise in the case before the national court. The Landgericht is not seeking a ruling from the Court on whether Community law precludes Mr Haim from making a claim except against a body whose liability is defined in such a way that his action in this particular case has little chance of succeeding. It is merely asking the Court whether, under Community law, the body which adopted the decision which led to Mr Haim's loss, in this case the KVN, may be held liable as well as the Federal Republic of Germany, and, for the reasons I have just given, there is no doubt regarding the answer to this question, which can only be in the affirmative.
35. However, this affirmative answer does not go beyond a nihil obstat, that is to say it means that Community law neither imposes nor excludes an outcome that comes under the procedural autonomy granted to Member States when they are required to provide reparation in respect of breaches of Community law which have occurred within their domestic legal systems. The answer to the first question referred by the national court could also be that there is no answer to it under Community law, since the relevant rules are to be found only in national law, provided of course that they are not structured in such a way that they might compromise the final result required under Community law, namely the grant of reparation in accordance with its requirements.
The second question
36. By its second question, the Landgericht Düsseldorf seeks a ruling from the Court on whether, where an official has either applied law conflicting with Community law or applied national law in a manner not in conformity with Community law, there is a sufficiently serious breach of Community law simply on the ground that the official had no discretion in making his decision.
37. One may reasonably assume that, by using the words where a national official has ... applied, the national court is in fact unsure about the liability of the body which employs that official. The action is in fact brought against that body, and it is only at a later stage that any question of the official's personal liability as against that body might arise. That would be a matter exclusively for national law.
38. As a preliminary step, this second question should be set in the context of the Court's case-law on the liability of a State for loss or damage caused to individuals by breaches of Community law which are attributable to it. That case-law has been clarified most recently in the judgments in Dillenkofer and Others and Denkavit and Others, which concerned the implementation of directives, and in Norbrook Laboratories, which concerned an administrative decision.
39. In Dillenkofer and Others, the Court observed:
In Brasserie du Pêcheur and Factortame [cited above], at paragraphs 50 and 51, British Telecommunications, ... and Hedley Lomas [cited above], at paragraphs 25 and 26, the Court, having regard to the circumstances of the case, held that individuals who have suffered damage have a right to reparation where three conditions are met: the rule of law infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
40. However, the words having regard to the circumstances of the case are no longer used in Norbrook Laboratories. Paragraph 107 of that judgment reads:
It is clear from the above case-law that three conditions must be satisfied for a Member State to be required to compensate for damage thus caused: ....
41. It is therefore indisputable that all three conditions apply in every case.
42. This is confirmed by the fact that, in paragraph 24 of the judgment in Dillenkofer and Others, the Court of Justice held:
When the Court held that the conditions under which State liability gives rise to a right to reparation depended on the nature of the breach of Community law causing the damage, that meant that those conditions are to be applied according to each type of situation.
This last sentence is referred to in paragraph 107 of the Norbrook Laboratories judgment.
43. As regards the first condition laid down in the Court's case-law, the Landgericht Düsseldorf has already stated in its order for reference that this is met, since the legal norm that has been infringed in this case, namely Article 52 of the EEC Treaty, is intended to confer rights upon the plaintiff. The Landgericht refers here to Brasserie du Pêcheur and Factortame, in which the Court confirmed that the essence of Article 52 is to confer rights on individuals.
44. The third condition, namely the existence of a direct causal link between the breach of Community law and the damage sustained by the individual, will have to be assessed by the national court if this is still necessary once the Court of Justice has given its answer regarding the second condition.
45. It therefore remains for me to examine that second condition in greater detail.
46. The Court held in this regard in Norbrook Laboratories:
first, that a breach is sufficiently serious where a Member State, in the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its powers (see Brasserie du Pêcheur and Factortame, paragraph 55; British Telecommunications, paragraph 42; and Dillenkofer and Others, paragraph 25, all cited above) and, second, that where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see Hedley Lomas, paragraph 28, and Dillenkofer and Others, paragraph 25, both cited above).
47. A mere infringement of Community law may therefore be sufficient, but not necessarily so.
48. As regards the main proceedings, one point is clear: since Haim I it has been apparent that the German State, the competent body and the official who issued the refusal all had no discretion in relation to Community law.
49. It is stated in that judgment, may I again point out, that [i]t is not permissible under Article 52 of the EEC Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner of a social security scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/EEC, but who has been authorised to practise, and has been practising, his profession both in the first and in another Member State, on the ground that he has not completed the preparatory training period required by the legislation of the first State, without examining whether and, if so, to what extent, the experience already established by the person concerned corresponds to that required by that provision.
50. As regards the interpretation of a provision of the Treaty, that rule is deemed to have been in force from the moment at which that provision was fully applied, that is to say, since the end of the transitional period provided for by the EEC Treaty.
51. According to a strict interpretation, Paragraph 3(2) of the ZOZ, which requires completion of a two-year preparatory training period by all applicants, irrespective of their previous professional experience, should have made provision for exceptional circumstances such as those in Mr Haim's case to be taken into account.
52. For their part, the body or the competent official should have disregarded the provision of the ZOZ in question and carried out the examination required by Haim I.
53. Is it to be concluded therefore that those infringements constitute ipso facto sufficiently serious breaches of Community law giving rise to a right to compensation?
54. That is not necessarily so. The national court can only reach this conclusion after duly taking into account each type of situation facing it.
55. It is clear from paragraph 56 of the judgment in Brasserie du Pêcheur and Factortame that: [t]he factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.
56. However, in British Telecommunications and Denkavit and Others, the Court held that it had all the information necessary in order itself to assess whether the facts of the case were to be characterised as a sufficiently serious breach of Community law. In my opinion, the Court could adopt the same approach in the present case.
57. The national court, the Member States which submitted observations and the Commission have all expressed the view that, in this case, the national legislature and the competent administrative body or its official committed merely an excusable error of law and that they should therefore not incur liability. I suggest that the Court should also take this view.
58. It was the Commission which set out, most clearly and most exhaustively, the evidence to this effect, and I can but repeat its line of argument.
59. As regards the liability of the Member State for the fact that the national rules on dentistry were incompatible with Article 52 of the Treaty, the Commission rightly makes the following submissions.
60. Firstly, the German rules in question were not manifestly contrary to the spirit and letter of Directive 78/686. On the contrary, as the Court of Justice ruled in Haim I, Article 20 of Directive 78/686 does not prohibit a Member State from requiring the completion of the preparatory training period in order for a person to be eligible for appointment as a dental practitioner of a social security scheme. The Court of Justice also ruled that Article 20 does not exempt from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member State, where that qualification has been recognised by another Member State as equivalent to a diploma awarded in a Member State.
61. Secondly, the national regulation on dentistry was not clearly in breach of Article 52 of the EC Treaty. The plaintiff's situation was quite exceptional and came under Article 52 solely because three cumulative conditions were met: namely, his qualification was obtained in a non-member State, he had practised in a Member State which had recognised that qualification as equivalent to the qualifications which it awards, and he had applied to treat patients under social security schemes in another Member State.
62. For the same reasons, in the Commission's view, the German legislature did not need to make provision for a case like this, that is to say, for the possibility of exempting from the preparatory training period persons who had obtained a qualification in a non-member State and then practised in a Member State.
63. It should also be pointed out that, in 1988, when the defendant's administrative decision was taken in pursuance of the regulation in question, the case-law of the Court did not provide any indication as to how Article 52 of the EC Treaty should be interpreted as regards freedom of establishment for dentists in the context of the particular circumstances of the main proceedings. A fortiori, at that time there was no relevant, well-established case-law of the Court of Justice which would have indicated that the national regulation on dentistry was not compatible with Article 52 of the EC Treaty.
64. Moreover, it should be pointed out that the Court had not yet delivered its judgment in Vlassopoulou. According to that judgment, a host country is not only required to recognise qualifications obtained in another Member State but, where it is necessary to complete a period of preparation or training for entry into the profession in the host country, an assessment must be made as to whether professional experience acquired either in the State of origin or in the host State may be regarded as satisfying that requirement in full or in part. Furthermore, unlike the main proceedings in this case, that judgment concerned a qualification in law obtained in a Member State.
65. Lastly, the judgment delivered by the Court of Justice in Haim I led the Commission to propose a corresponding amendment to Directive 78/686. The apparent need for legislative clarification also shows that the German legislature could not foresee the significance of Article 52 of the EC Treaty in circumstances such as those in the main proceedings.
66. The Commission therefore concludes that, by not providing for the possibility of exempting from the preparatory training period for dentists persons who have obtained their qualification in a non-member State and practised in a Member State other than the host State, the German legislature committed an error of law which was excusable within the meaning of Brasserie du Pêcheur and Factortame.
67. The Commission goes on to examine whether the defendant in the main proceedings committed a sufficiently serious breach of Community law. Here again, it considers that the defendant committed an excusable error of law in failing to take into account the applicant's professional experience for the purposes of exemption from the preparatory training period.
68. It considers that the explanations it gave concerning the liability of the Member State which drafted the legislation and the exceptional circumstances of the main proceedings support this view.
69. I entirely agree with the Commission's line of thinking.
70. One particular aspect of the second question, however, still needs to be clarified, namely whether the national court was referring to the discretion of the official under Community law or under national law.
71. The Swedish Government and the Commission seem to take the view that the Landgericht Düsseldorf was referring here to the official's lack of discretion under national law. However, even though we are only onlookers so far as German law is concerned, we can assume that the national body and its officials did not have such discretion. As the Commission pointed out, the national regulation on dentistry did not contain any provision which would authorise the competent official to exempt persons other than those listed in Paragraph 3.4 of the ZOZ from the obligation to complete a training period, and the body and its official correctly applied the regulation in the light of German law.
72. If that is what the national court means, the answer should be, as the Swedish Government suggests, that the discretion allowed an individual official under national law is irrelevant as regards the issue before the Court of Justice. The only relevant factor when assessing State liability under Community law is the discretion which Community law allows the legislating State or the administering State, a term which covers a quasi-governmental body such as the KVN, the defendant in the main proceedings.
73. In its statement of grounds relating to the second question, the national court raises, in passing, a completely different case, namely that in which an official has wrongly applied national provisions which are in accordance with Community law.
74. I think that in such a case State liability should be assessed solely according to the rules concerning administrative liability in force in the State in question, including where necessary those which make reparation of loss or damage conditional upon fault (intentional or negligent).
75. However, I do not think it necessary for the Court to go back on its ruling in Brasserie du Pêcheur and Factortame, as the German Government has asked it to do, as regards the concept of fault (intentional or negligent). Admittedly, that was a case in which a breach of Community law was attributable to a State in an area in which it had a broad discretion. However, I think that the Court's reasoning holds good also as regards State liability in respect of an administrative act which is contrary to Community law, where the national authorities do not have any discretion.
76. Having observed, in paragraph 76 of that judgment, that the concept of fault does not have the same content in the various legal systems, the Court held in paragraphs 78 and 79:
... certain objective and subjective factors connected with the concept of fault under a national legal system may well be relevant for the purpose of determining whether or not a given breach of Community law is serious .... The obligation to make reparation for loss or damage caused to individuals cannot, however, depend upon a condition based on any concept of fault going beyond that of a sufficiently serious breach of Community law. Imposition of such a supplementary condition would be tantamount to calling in question the right to reparation founded on the Community legal order.
77. The Court went on to confirm this position in paragraph 28 of the judgment in Dillenkofer and Others, and I think its reasoning is still completely valid. The references made in paragraph 56, cited above, of the judgment in Brasserie du Pêcheur and Factortame to whether the infringement and the damage caused was intentional or involuntary or to whether any error of law was excusable or inexcusable mean it is possible to take the factors of intentional fault and negligence adequately into account.
78. Let us now return to the issue of discretion. I am inclined to think that the national court was referring to the discretion of the official under Community law, since it deals with this issue immediately after referring to the Hedley Lomas judgment.
79. In this connection, it is clear from the foregoing that, even if the national body or its official did not have such discretion, it does not necessarily follow that there has been a sufficiently serious breach of Community law.
80. I therefore suggest that the Court answer the second question in the negative.
The third question
81. The third question concerns whether the appointment, as a social security scheme dental practitioner, of a national of another Member State who holds a diploma awarded by a non-member State can be conditional upon the linguistic knowledge of the person concerned. I shall first try to establish precisely the scope of this question.
82. First and foremost, it is very clear that the reason the question has been referred to the Court is that the national court considers that it has been established that German law does indeed lay down a linguistic requirement for appointment as a social security scheme dental practitioner. The Court does not need to question the merits of that opinion. Any discussion on the scope of Paragraph 21 of the ZOZ must therefore be excluded because it would result in the Court's exceeding its jurisdiction.
83. Secondly, it must be stated that the wording of the question also makes the assumption that the individual concerned is authorised to exercise his professional activity in the host Member State, so that what the Court is being asked to assess is solely whether a condition as to linguistic knowledge can still be imposed subsequently at the time when the person concerned applies for appointment as a social security scheme dental practitioner. It is clear, however, from the comments which accompany the third question that the national court is not referring specifically to the linguistic knowledge required for an efficient relationship between the dentist and the sickness fund, but to linguistic shortcomings that seriously hamper meaningful patient care.
84. Thirdly, the national court asks, in the same comments, whether the imposition of a linguistic requirement at the time of appointment as a social security scheme dental practitioner might infringe Article 18(3) of Directive 78/686/EEC, since no provision is made therein to the effect that appointment may be made dependent upon such knowledge. The question also arises whether that provision may in any case be applied to a national of a Member State who does not hold a recognised diploma of that State. It also needs to be considered whether unlawful discrimination has taken place in breach of Article 52 of the EEC Treaty.
85. I shall look first of all at the question of the applicability of Article 18(3) of Directive 78/686. That paragraph provides:
Member States shall see to it that, where appropriate, the persons concerned acquire, in their interest and in that of their patients, the linguistic knowledge necessary for the exercise of their profession in the host Member State.
86. That provision comes in Chapter VI of the Directive, which contains provisions to facilitate the effective exercise of the right of establishment and freedom to provide services in respect of the activities of dental practitioners, and more precisely in Part C thereof, which contains provisions common to the right of establishment and freedom to provide services. Has it any part to play in this case?
87. In Haim I the Court ruled that Directive 78/686 refers only to holders of a qualification conferred in the Member States.
88. It is certain therefore that since Directive 78/686 is intended to grant facilities only to the holders of such qualifications, it cannot be relied on by Mr Haim.
89. However, since it authorises Member States to impose requirements on Community nationals who are holders of qualifications awarded by another Member State, those requirements will be able to apply a fortiori to nationals of other Member States who are holders of qualifications from non-member States.
90. Article 18(3) of Directive 78/686 imposes on Member States an obligation as to the result to be achieved since it requires them to see to it that those entitled to freedom of movement acquire ... the linguistic knowledge necessary for the exercise of their profession.
91. It is clear therefore that freedom of movement for dentists requires not only possession of a qualification demonstrating what one might call technical knowledge, but also a command of the language or languages of the host State.
92. Here, in the field of freedom of establishment and freedom to provide services, is a requirement which was taken into account in respect of employed persons by Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, the last subparagraph of Article 3(1) of which recognises that there may be posts which, by their nature, require certain linguistic knowledge.
93. It is true that Article 18(3) of Directive 78/686 does not specify at what point such knowledge must be acquired. It is reasonable to suppose that the persons concerned do not need this knowledge when they take up their activity in the host Member State, since otherwise the Council would have used the words Member States shall check whether the persons concerned have the linguistic knowledge necessary.
94. It is also true, as the Landgericht points out, that that provision does not provide that appointment as a social security scheme dental practitioner may be made conditional upon the existence of such knowledge.
95. However, Article 18(3) of Directive 78/686 would have no practical effect if a Member State were not able to test for the existence of the necessary linguistic knowledge at any time.
96. There is no reason why such tests should not be carried out when an application for appointment as a social security scheme dental practitioner is being considered, but they could also be carried out on some other occasion (provided the applicant has had a reasonable amount of time to acquire the necessary knowledge).
97. As regards how the knowledge is to be checked, I share the Commission's view that a written or oral language test would for example constitute an appropriate means.
98. The national court will need to apply the principle of proportionality as regards the level of knowledge which may be required.
99. According to that principle, the linguistic knowledge demanded should not exceed the level objectively required to ensure that patients' interests are protected.
100. Moreover, there can be hardly any doubt that if the dentist has the knowledge necessary for this purpose he will ipso facto also have the knowledge he needs in order to fill in forms for the sickness fund, understand the circulars issued by that fund and take part in meetings which it organises.
101. In my opinion, the above considerations are sufficient grounds for the third question to be answered in the affirmative.
102. However, in case the Court does not share this reasoning a fortiori which, like the Commission, I have just advocated, and since the national court in its commentary also questions whether the imposition of a linguistic requirement at the time of appointment as a social security scheme dental practitioner might constitute unlawful discrimination in breach of Article 52 of the EC Treaty, I think I should also consider the question from this perspective.
103. According to Gebhard, [n]ational measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.
104. I consider that the first of these conditions is met since the measure concerned is applicable without distinction to all candidates applying for appointment as social security scheme dental practitioners.
105. As for the second condition, the opinions which were expressed in the observations submitted to the Court, including those of Mr Haim, concur to a great extent in recognising that, in the relationship between a medical practitioner and the patient consulting him, it is essential that they can communicate. No-one would attempt to deny that in order for a doctor or dentist to provide effective treatment to a patient it is essential both that the practitioner is able fully to understand the problem which the patient has described to him in order for it to be treated, and that the explanations provided as to the nature of the problem and the advice accompanying the recommended treatment should be fully understood by the patient so that he can assist his own recovery.
106. One might also consider, as the Commission suggests, referring to the judgment in Collectieve Antennevoorziening Gouda, that the rule requiring a dentist to have a command of the official or national language of the State in which he intends to settle should be regarded as a rule to protect the interests of the consumer, and that therefore it constitutes an overriding reason relating to the general interest.
107. One may also, if one does not wish to regard a patient as a mere consumer, argue simply that the quality of care, the central objective of any public health policy, depends on the possibility of a genuine dialogue between the practitioner and the patient. This need was also, may I point out, expressed in Article 18(3) of Directive 78/686, which I considered above.
108. As I have already pointed out, a practitioner who has the necessary knowledge to carry on such a dialogue will also be able to cope in the quasi-administrative environment which surrounds appointment as a social security scheme dental practitioner.
109. For this reason I shall only make a cursory examination of the considerations submitted to the Court which specifically relate to working as a social security scheme dental practitioner. These include the requirements that a practitioner should apply scales of charges, supply statements of services provided, participate in special training activities and report on his activities to the sickness funds. In order to meet all those obligations, which are an integral part of treating patients affiliated to social security schemes, it is necessary for a practitioner who provides such treatment to have an adequate command of the language of the host country.
110. Mr Haim, although not denying the existence of such obligations, claims that a practitioner can fulfil most of them by using the services of suitably qualified staff who, for example, will take responsibility, under the supervision of the dental practitioner himself, for preparing the statements of services provided.
111. Although I am in favour of not ascribing excessive significance to the administrative tasks of a social security scheme dental practitioner, whose main activity must be to provide treatment, and of recognising that the administrative side of the work of a dental practice can for the most part be entrusted to secretarial staff, I do consider that a dental practitioner must be able to retain effective control over it and also that, apart from the strictly administrative and accounting tasks, that is to say as regards the other obligations of a social security scheme dental practitioner mentioned above, it is unrealistic to state, as does Mr Haim, that a practitioner who encounters language difficulties can easily overcome them by using the services of translators.
112. Is it really feasible for a dental practitioner to have all the circulars he receives from the sickness funds translated by experts and to be accompanied by a simultaneous interpreter whenever he is required to attend meetings arranged for social security scheme dental practitioners?
113. For my part, I do not think so. I also take the view that a Member State may legitimately refuse to allow each practitioner to search his conscience and decide for himself, as Mr Haim suggests, whether his linguistic knowledge is adequate to enable him to treat a particular patient correctly and that the requirement of a knowledge of the language of the host Member State may be based on overriding reasons relating to the general interest.
114. I now come to the third condition, which is that the measure must be suitable for securing the attainment of the objective which it pursues. It is clear from the foregoing that the prime objective of providing adequate treatment, to which patients are entitled, fully justifies the requirement that a practitioner should provide evidence of adequate linguistic knowledge.
115. The question remains, therefore, whether appointment as a social security scheme dental practitioner is the appropriate point at which to impose language requirements.
116. One might therefore ask whether it would not be better to require a minimum knowledge of the language at an earlier stage, when authorisation is granted to practise as a dental practitioner in a particular country. A lack of understanding between a dentist and his patient may have dramatic consequences, whilst a lack of understanding between a dentist and the sickness fund would only lead to administrative problems.
117. There are two possible answers to this legitimate question.
118. The first is that, as we saw when examining Article 18(3) of Directive 78/686, the Community legislature itself did not consider it inappropriate to introduce the language requirement only after the authorisation to practise has been granted.
119. The second is that it would be paradoxical to say the least if, when a Member State has decided not to carry out a test at the outset, as seems to have happened in Mr Haim's case, it cannot at a subsequent stage claim the need for a command of the language on the part of a holder of a qualification from a non-member State without coming up against the rule in Gebhard, when in the case of holders of a qualification awarded by another Member State the host State is required under Article 18(3) of Directive 78/686 to concern itself with their level of knowledge in this field.
120. In other words, common sense dictates that, whatever Mr Haim's linguistic knowledge was when he was granted authorisation to practise in Germany, the German authorities were entitled to ensure that he had sufficient command of the German language when he sought appointment as a social security scheme dental practitioner.
121. Lastly, as regards the fourth condition laid down in Gebhard, relating to compliance with the principle of proportionality, I have nothing to add to what I said above. It is for the national court to verify that the requirement of proportionality has been met.
Conclusion
122. I therefore propose that the Court give the following answers to the questions submitted by the Landgericht Düsseldorf:
(1) If an official of a legally independent public-law body of a Member State infringes primary Community law when applying national law in the context of an individual decision, there is nothing from the point of view of Community law to preclude the public-law body from being held liable as well as the Member State.
(2) Where a national official has either applied national law conflicting with Community law or applied national law in a manner not in conformity with Community law, there is not a serious breach of Community law simply on the ground that the official had no discretion in making his decision.
(3) Article 52 of the EC Treaty must be interpreted as meaning that the competent authorities of a Member State may make appointment, as a social security scheme dental practitioner, of a national of another Member State who is authorised to practise in that Member State but has none of the qualifications mentioned in Article 3 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, conditional upon that person's having the knowledge of the official or national language of the host State which he needs to protect his patient's interests.