Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein.
Date: 2000-07-04
26 First of all, it should be recalled that liability for loss and damage caused to individuals as a result of breaches of Community law attributable to a national public authority constitutes a principle, inherent in the system of the Treaty, which gives rise to obligations on the part of the Member States (see Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 38; Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others v Germany [1996] ECR I-4845, paragraph 20; and Case C-127/95 Norbrook Laboratories v MAFF [1998] ECR I-1531, paragraph 106).
27 As in substance all the governments which submitted observations to the Court and the Commission have pointed out and as is clear from the case-law of the Court, 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 (Case C-302/97 Konle v Austria [1999] ECR I-3099, paragraph 62).
30 As regards Member States with a federal structure, the Court has held that, if the procedural arrangements in the domestic system enable the rights which individuals derive from the Community legal system to be effectively protected and it is not more difficult to assert those rights than the rights which they derive from the domestic legal system, reparation for loss and damage caused to individuals by national measures taken in breach of Community law need not necessarily be provided by the federal State in order for the Community law obligations of the Member State concerned to be fulfilled (Konle, paragraphs 63 and 64).
31 That is also true for those Member States, whether or not they have a federal structure, 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. In those Member States, reparation for loss and damage caused to individuals by national measures taken in breach of Community law by a public-law body may therefore be made by that body.
32 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.
33 It is well settled that, subject to the existence of a right to obtain reparation which is founded directly on Community law where the conditions for Member State liability for breach of Community law are met, it is on the basis of rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation (Francovich and Others, paragraphs 41 to 43; and Norbrook Laboratories, paragraph 111).
36 It is clear from the case-law of the Court that three conditions must 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: 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 loss or damage sustained by the injured parties. Those conditions are to be applied according to each type of situation (Norbrook Laboratories, paragraph 107).
38 As regards, more particularly, the second of those conditions, the Court has held that a breach of Community law 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) and that where, at the time when it committed the infringement, the Member State in question 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 Norbrook Laboratories, paragraph 109).
39 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 (Brasserie du Pêcheur and Factortame, paragraph 79).
42 In order to determine whether such an infringement of Community law 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.
43 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 Brasserie du Pêcheur and Factortame, paragraph 56, as regards the conditions under which the State may incur liability for acts and omissions of its national legislature contrary to Community law).
44 As regards the application of those criteria in the present case, it is clear from the case-law of the Court that, in principle, they must be applied by the national courts (Brasserie du Pêcheur and Factortame, paragraph 58) in accordance with the guidelines laid down by the Court (Konle, paragraph 58).
46 However, when the German legislature adopted Paragraph 3 of the ZOK and the KVN then refused to enrol Mr Haim on the register of dental practitioners, the Court had not yet given judgment in the Vlassopoulou case, in paragraph 16 of which it held for the first time that a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules.
47 The Court applied the same principle when it held, in paragraph 29 of Haim I, that it is not permissible under Article 52 of the Treaty for the competent authorities of a Member State to refuse appointment as a dental practitioner under 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, 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.
52 As regards Article 18(3) of Directive 78/686, the rules on mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry laid down by Directive 78/686 do not apply to diplomas obtained in a non-member country, even if they have been recognised by a Member State as equivalent to diplomas awarded in that Member State (see Case C-154/93 Tawil-Albertini [1994] ECR I-451, paragraph 13).
57 According to the Court's case-law, national measures which restrict the exercise of fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on 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 that objective (see, in particular, Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paragraph 37; and Case C-212/97 Centros [1999] ECR I-1459, paragraph 34).
58 Although, as regards the division of jurisdiction between the Community judicature and national courts, it is in principle for the national court to determine whether those conditions are fulfilled in the case pending before it, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation.