Keywords

Summary



Keywords

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

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)

Summary

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 responsible 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 measures 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 concerned. 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 of Community law is therefore irrelevant 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 characterise 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 contributed towards the adoption or maintenance of national measures or practices contrary to Community law.

( see paras 36, 40, 41-43, 49, and operative part 2 )

3. The competent authorities of a Member 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, 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 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 overriding reason of general interest such as to justify making the appointment as a dental practitioner under a social security scheme subject to language requirements. 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 tongue 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 )