Haim v. Kassenzahnärztliche Vereinigung Nordrhein (Case C-424/97) Before the Court of Justice of the European Communities ECJ (Presiding, RodrÍguez Iglesias P.; Edward ( Rapporteur), Sevón, Schintgen PP.C; Kapteyn, Gulmann, Puissochet, Hirsch, Jann, Ragnemalm and Wathelet, JJ.) Jean Mischo, Advocate General. 4 July 2000 H1 Reference from Germany by the Landgericht (Regional Court), Düsseldorf, under Article 177 of the EC Treaty (now Article 234 EC). H2 Member States--liability--Community law and national law--establishment professions--qualifications--dentists required to complete two-year training to work under national social security scheme--holders of qualifications obtained in another Member State exempted--holder of Turkish diploma not having completed training period prevented from registering as dental practitioner-- even though his qualifications recognised by another Member State and was permitted to practise in the first Member State--public-law bodies, as well as Member States, may be liable for damages for breach of Community law--breach of Community law--sufficiently serious where Member State disregarding limits of its powers--requirement of sufficient linguistic knowledge justified by reason of public interest. H3 H, an Italian national, qualified and practised as a dental practitioner in Turkey from 1946. In 1981, he obtained permission to practise as a dental practitioner in Germany. In 1982, his Turkish diploma was recognised by the Belgian authorities as equivalent to a Belgian diploma and he worked there as a dental practitioner under a social security scheme. In 1988, he applied to the professional association in Nordrhein (KVN) to be enrolled on the register of dental practitioners so that he could be eligible for appointment as a dental practitioner under a social security scheme. The KVN rejected his application. Under domestic regulations, enrolment was subject to completion of a training period of at least two years, although this did not apply to dental practitioners who had obtained a qualification in another *248 Member State. In proceedings

brought by H against the decision rejecting his application, the national court referred to the Court of Justice a number of questions on the interpretation of Dentists Directive 78/686 and Article 52 of the EC Treaty (now Article 43 EC) on the freedom of establishment. The Court ruled that Article 20 of the Directive did not prohibit a Member State from requiring a national of another Member State who had none of the qualifications listed in the Directive to complete a training period in order to be eligible for appointment as a dental practioner under a social security scheme, even though he was authorised to practise in the territory of that State and held a qualification recognised by another Member State as equivalent to those listed in Article 3 of the Directive. However, Article 52 of the EC Treaty did not permit rejection of enrolment on grounds of failure to complete the training period where the person had been authorised to practise and had practised his profession in the first and another Member State, without an examination of whether his actual experience corresponded to what was required by the Directive. Following that judgment, H was enrolled as a dental practitioner, but brought a further action against the KVN to obtain compensation for loss of earnings from the time he applied for registration to the time he was enrolled. The national court considered that the KVN had acted in error but not in bad faith and had therefore not committed a wrong under German law governing the administrative liability of public authorities. However, it referred to the Court Justice a number of questions on the interpretation of the Dentists Directive 78/686. Held: Public-law bodies may be liable for damages, in addition to the Member State itself, for breach of Community law H4 (a) It was for each Member State to ensure that individuals obtained reparation, whichever public authority was responsible for the breach and whichever public authority was, under the law of the Member State concerned, responsible for making reparation. Member States could not escape liability on grounds of their internal distribution of powers or that the authority responsible for the breach lacked the necessary power, knowledge, means or resources. However, reparation need not be provided by the Member State itself and could be provided by a public-law body instead of, or in addition to, the Member State itself. [26]-[32] Francovich and Another v. Italy (C 6 & 9/90): [1995] I.C.R. 722; [1991] E.C.R. I5357; [1993] 2 C.M.L.R. 66; Brasserie du Pêcheur SA v. Germany; R. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others (C 46 & 48/93):[1996] Q.B. 404;[1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889; R. v. HM Treasury, Ex parte British Telecommunications Plc (C-392/93): [1996] Q.B. 615; [1996] E.C.R. I-1631; [1996] 2 C.M.L.R. 217; *249 R. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd (C-5/94): [1997] Q.B. 139; [1996] E.C.R. I-2553; [1996] 2 C.M.L.R. 391; Dillenkofer and Others v. Germany (C 178, 179, 188, 189 & 190/94): [1997] Q.B. 259; [1996] E.C.R. I4845; [1996] 3 C.M.L.R. 469; Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food (C-127/95): [1998] E.C.R. I-1531; [1998] 3 C.M.L.R. 809; Konle v. Austria (C-302/97): [1999] E.C.R. I-3099; [2000] 2 C.M.L.R. 963,

followed. H5 (b) Subject to the existence of a right to obtain reparation, it was according to national rules that the Member State must make reparation, so long as the conditions laid down by national law were no less favourable than those relating to similar domestic claims, and did not make it impossible or excessively difficult to obtain reparation. [33] Francovich and Another v. Italy (C 6 & 9/90): supra; Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food (C-127/95): supra, followed. The existence and scope of the discretion of the Member State, which was determined by reference to Community law, must be taken into account in determining whether there was a serious breach of Community law H6 (a) Three conditions must be satisfied for a Member State to be required to make reparation for loss caused to individuals as a result of breaches of Community law for which the State could be held responsible. First, the rule of law infringed must have been intended to confer rights on individuals. Secondly, the breach must be sufficiently serious. Thirdly, there must be a direct causal link between the breach of the obligation resting on the State and the loss sustained by the applicant. These conditions were to be applied according to each type of situation, but applied equally to breaches caused by the Member State and breaches caused by a public-law body which was legally independent from the State. [36]-[37] H7 (b) A breach of law was sufficiently serious where a Member State, in exercise of its legislative powers, manifestly and gravely disregarded the limits on its powers. However, no further requirement of fault could be imposed. Where the State had little or no discretion, the mere infringement of Community law could be sufficient to establish the existence of a sufficiently serious breach. The existence and scope of this discretion were to be determined by Community law and the discretion conferred by national law was therefore irrelevant. In determining whether a breach was sufficiently serious, the national court must have regard to a number of factors, including the clarity and precision of the rule breached, whether the breach and the damage were intentional or involuntary, whether any error of law was excusable or inexcusable and whether the position taken by a *250 Community institution contributed towards the adoption or maintenance of national measures or practices contrary to Community law. [38][44] Brasserie du Pêcheur SA v. GermanyR. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others (C 46 & 48/93): supra; R. v. H.M. Treasury, Ex parte British Telecommunications Plc (C-392/93): supra; R. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd (C-5/94): supra; Dillenkofer and Others v. Germany (C 178, 179, 188, 189 & 190/94): supra; Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food (C-127/95): supra; Konle v. Austria (C-302/97): supra, followed. H8 (c) The rule of Community law concerned was a Treaty provision which was directly applicable. However, at the time that the German legislature adopted paragraph 3 of the Regulations on Eligibility for the appointment of Dental Practitioners to a Social Security scheme (ZOK), and the KVN had refused to

enrol H, the Court had not given judgment in Vlassopolou. In that case, the Court held for the first time that a Member State which received a request for entry to a profession for which national law required a professional qualification must take into account the diplomas and other evidence of qualifications which a person had acquired in order to exercise his profession in another Member State. It must therefore compare the knowledge and experience certified by those qualifications with that required by the national rules. It was for the national court to determine whether there had been a sufficiently serious breach. [45]-[49] Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg (C-340/89): [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221; Haim v. Kassenzahnärztliche Vereinigung Nordrhein (C319/92): [1994] E.C.R. I425; [1994] 2 C.M.L.R. 169. Requirement of sufficient linguistic knowledge justified by reason of general interest H9 (a) Article 18(3) of the Directive provided that the rules on mutual recognition of dentistry qualifications did not apply to diplomas awarded in a non-member country. Since H's diploma was awarded by a non-member country, it did not fall within the scope of that Directive, even though it had been recognised by another Member State as equivalent to the qualifications listed in Article 3 of the Directive. The possibility that a requirement of linguistic knowledge might be contrary to Article 18(3) was therefore not relevant. [52]-[54] Tawil-Albertini v. Ministre des Affaires Sociales (C-154/93): [1994] E.C.R. I-451; [1995] 1 C.M.L.R. 612, followed. H10 (b) Although paragraph 21 of the ZOK did not appear to relate to *251 linguistic knowledge, it was not for the Court to rule on the interpretation of national law. National measures which restricted the exercise of fundamental freedoms guaranteed by the Treaty could be justified only if they fulfilled four conditions. First, they must be applied in a non-discriminatory manner. Secondly, they must be justified by overriding reasons based on the public interest. Thirdly, they must be suitable for securing the attainment of the objective which they pursued. Fourthly, they must not go beyond what was necessary to attain that objective. Although it was for the national court to determine whether those conditions were fulfilled in a given case, the Court could provide clarification to guide the national court. The reliability of a dental practitioner's communication with his patients and the authorities constituted an overriding reason of general interest such as to justify making appointment as such a practitioner dependent on language requirements. However, these requirements must be proportionate and it was in the interests of patients whose mother tongue was not the national language that there were practitioners able to communicate with them in their own language. A Member State could therefore make appointment as a dental practitioner under a social security scheme subject, in the case of a national of another Member State who was established in the first State but had none of the qualifications listed in Article 3 of the Directive, conditional upon his having the linguistic knowledge necessary for the exercise of his profession. [55]-[61] Gebhard v. Consiglio Dell'Ordine degli Avvocati E Procuratori di Milano (C55/94): [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603, followed.

H11 Representation H. Ungewitter, Rechtsanwalt, Düsseldorf, for Mr Haim. E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, A. Dittrich, Ministerialrat in the Federal Ministry of Justice, and C.-D. Quassowski, Regierungsdirektor in the Federal Ministry of Economic Affairs, acting as Agents, for the German Government. A. Samoni-Rantou, Legal Adviser to the Community Law Section of the Special Legal Department of the Ministry of Foreign Affairs, and S. Vodina and G. Karipsiadis, Legal Assistants in the same department, acting as Agents, for the Greek Government. N. DÍaz Abad, Abogado del Estado, acting as Agent, for the Spanish Government. Professor U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by P. G. Ferri, Avvocato dello Stato, for the Italian Government. E. Brattgård, Departementsråd in the Ministry of Foreign Affairs, acting as Agent, for the Swedish Government. J. E. Collins, Assistant Treasury Solicitor, acting as Agent, and E. Sharpston, Barrister, for the U.K. Government. B. Mongin and P. van Nuffel, of its Legal Service, acting as Agents, assisted by B. Wägenbaur, Rechtsanwalt, Hamburg, for the EC Commission. *252 H12 Cases referred to in the judgment: 1. Haim v. Kassenzahnärztliche Vereinigung Nordrhein (C-319/92), 9 February 1994: [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169. 2. Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg (C-340/89), 7 May 1991: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. 3. Francovich and Another v. Italy (C 6 & 9/90), 19 November 1991: [1995] I.C.R. 722; [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66. 4. Brasserie du Pêcheur SA v. Germany;R. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others (C 46 & 48/93), 5 March 1996: [1996] Q.B. 404; [1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889. 5. R. v. HM Treasury, Ex parte British Telecommunications Plc (C-392/93), 26 March 1996: [1996] Q.B. 615; [1996] E.C.R. I-1631; [1996] 2 C.M.L.R. 217. 6. R. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd (C-5/94), 23 May 1996: [1997] Q.B. 139; [1996] E.C.R. I-2553; [1996] 2 C.M.L.R. 391. 7. Dillenkofer and Others v. Germany (C 178, 179, 188, 189 & 190/94), 8 October 1996: [1997] Q.B. 259; [1996] E.C.R. I-4845; [1996] 3 C.M.L.R. 469. 8. Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food (C127/95), 2 April 1998: [1998] E.C.R. I-1531; [1998] 3 C.M.L.R. 809. 9. Konle v. Austria (C-302/97), 1 June 1999: [1999] E.C.R. I-3099; [2000] 2 C.M.L.R. 963.

10. Tawil-Albertini v. Ministre des Affaires Sociales (C-154/93), 9 February 1994: [1994] E.C.R. I-451; [1995] 1 C.M.L.R. 612. 11. Gebhard v. Consiglio Dell'Ordine degli Avvocati E Procuratori di Milano (C55/94), 30 November 1995: [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603. 12. Centros Ltd v. Erhvervs-og Selskabsstyrelsen (C-212/97), 9 March 1999: [1999] E.C.R. I-1459; [1999] 2 C.M.L.R. 551. H13 Further cases referred to by the Advocate General: 13. Rewe-Zentralfinanz eG v. Landwirtschaftskammer Saarland (33/76), 16 December 1976: [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533. 14. Re Toxic Waste In Campania: EC Commission v. Italy (C-33/90), 13 December 1991: [1991] E.C.R. I-5987; [1992] 2 C.M.L.R. 353. 15. Amministrazione delle Finanze dello Stato v. Simmenthal SpA (106/77), 9 March 1978: [1978] E.C.R. 629; [1978] C.M.L.R. 263. 16. Fratelli Costanzo v. Comune di Milano (103/88), 22 June 1989: [1989] E.C.R. 1839; [1990] 3 C.M.L.R. 239. *253 17. Ciola v. Land Voralberg (C-224/97), 29 April 1999: [1999] E.C.R. I-2517; [1999] 2 C.M.L.R. 1220. 18. Denkavit International BV and Others v. Bundesamt für Finanzen (C283, 291 & 292/94), 17 October 1996: [1996] E.C.R. I-5063. 19. Groener v. Minister for Education and Another (C-379/87), 28 November 1989: [1989] E.C.R. 3967. 20. Stichting Collectieve Antennevoorziening Gouda and Others v. Commissariaat voor de Media (C-288/89), 25 July 1991: [1991] E.C.R. I-4007. Opinion of Mr Advocate General Mischo A1 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 10 years between Mr Haim and the German authorities. A2 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. A3 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. A4 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. A5 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. A6 *254 In Case C-319/92, [FN1] 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 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, [FN2] and, secondly, 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, 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. [FN3] FN1 Case C-319/92, Haim v. Kassenzahnärztliche Vereinigung Nordrhein: [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169, (hereinafter "Haim I"). FN2 [1978] O.J. L233/1. FN3 See para. 3 of the operative part. A7 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. A8 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. A9 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, secondly, 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. A10 The Landgericht considers, however, that it should ascertain whether, in the light of the Court's case law, in particular the judgments in Joined Cases C 6 & 9/90, Francovich and Others v. Italy, [FN4] Joined Cases C 46 & 48/93, Basserie du Pêcheur SA v. Germany; R. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others [FN5] *255 and R. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd, [FN6] 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? FN4 [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66. FN5 [1996] Q.B. 404; [1996] E.C.R. I-1029; [1996] 1 C.M.L.R. 889. FN6 [1997] Q.B. 139; [1996] E.C.R. I-2553; [1996] 2 C.M.L.R. 391. 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? A11 I shall consider them in that order. The first question A12 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. A13 It is very closely linked to the circumstances to 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. A14 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. A15 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. A16 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 *256 Community law committed by its legislature, or is he entitled to make a claim against both of them cumulatively? A17 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. A18 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". A19 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. A20 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. A21 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". [FN7] FN7 See para. [42]. A22 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 Case 33/76, Rewe-Zentralfinanz eG v. Landwirtschaftskammer Saarland, [FN8] 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 *257 actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law. FN8 [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533, para. [5]. A23 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. A24 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", [FN9] according to Francovich and Others, is a creation of the case law. FN9 See para. [35]. A25 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. A26 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. A27 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. [FN10] FN10 See para. [43].

A28 Secondly, 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, [FN11] FN11 See para. [3] of the operative part. and that: *258 [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. [FN12] FN12 See para. [4] of the operative part. A29 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. A30 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, [FN13] 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. FN13 See, for example, Case C-33/90, Re Toxic Waste In Campania: EC Commission v. Italy: [1991] E.C.R. I-5987; [1992] 2 C.M.L.R. 353. A31 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. A32 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 Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [FN14] and was expanded as regards administrative authorities in Fratelli Costanzo v. Commune di Milano, [FN15] further confirmed very recently in Case C-224/97, Ciola v. Land Vorarlberg, [FN16] *259 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. FN14 [1978] E.C.R. 629; [1978] C.M.L.R. 263. FN15 [1989] E.C.R. 1839; [1990] 3 C.M.L.R. 239. FN16 [1999] E.C.R. I-2517; [1999] 2 C.M.L.R. 1220. A33 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. A34 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 culde-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 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. A35 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 *260 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 A36 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. A37 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. A38 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 Joined Cases C 178, 179 & 188-190/94, Dillenkofer and Others v. Germany [FN17] and Joined Cases C 283, 291 & 292/94, Denkavit International BV and Others v. Bundesamt für Finanzen [FN18] which concerned the implementation of Directives, and in Case C-127/95, Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food, [FN19] which concerned an administrative decision. FN17 [1996] E.C.R. I-4845; [1996] 3 C.M.L.R. 469.

FN18 [1996] E.C.R. I-5063. FN19 [1998] E.C.R. I-1531; [1998] 3 C.M.L.R. 809. A39 In Dillenkofer and Others, the Court observed: In Brasserie du Pêcheur and Factortame [cited above], at paragraphs [50] and [51], British Telecommunications, [FN20] ... and Hedley Lomas [cited above], at paragraphs [25] and [26] the Court, having regard to the circumstances of the case, [FN21] 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 *261 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. FN20 Case C-392/93, R. v. H.M. Treasury, Ex parte British Telecommunications Plc [1996] E.C.R. I-1631; [1996] 2 C.M.L.R. 217, paras [39] & [40]. FN21 Emphasis added. A40 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: .... A41 It is therefore indisputable that all three conditions apply in every case. A42 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 [FN22] according to each type of situation. FN22 Emphasis added. This last sentence is referred to in paragraph [107] of the Norbrook Laboratories judgment. A43 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, [FN23] in which the Court confirmed that "the essence of Article 52 is to confer rights on individuals". FN23 See para. A54. A44 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. A45 It therefore remains for me to examine that second condition in greater detail. A46 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). A47 *262 A mere infringement of Community law may therefore be sufficient, but not necessarily so. A48 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. A49 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, 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. A50 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. A51 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. A52 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. [FN24] FN24 See Fratelli Costanzo, cited above in fn. 15.

A53 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? A54 That is not necessarily so. The national court can only reach this conclusion after duly taking into account "each type of situation" facing it. [FN25] FN25 See Dillenkofer and Others, para. [24]. A55 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. A56 *263 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. A57 The national court, the Member States which submitted observations and the Commision 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. A58 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. A59 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. A60 First, the German rules in question were not manifestly contrary to the spirit and letter of Directive 78/686. [FN26] 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. FN26 See British Telecommunications in this connection. A61 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. A62 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. A63 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 *264 freedom of establishment for dentists in the context of the particular circumstances of the main proceedings. [FN27] 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. [FN28] FN27 See Denkavit and Others, para. [52] in this connection. FN28 See Brasserie du Pêcheur and Factortame, para. [57], in this connection. A64 Moreover, it should be pointed out that the Court had not yet delivered its judgment in Case C-340/89, Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemburg. [FN29] 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 of 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. FN29 [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221, paras [20] & [21]. A65 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. A66 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. A67 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. A68 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. A69 I entirely agree with the Commission's line of thinking. A70 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. A71 The Swedish Government and the Commission seem to take the view that the Landgericht Düsseldorf was referring here to the *265 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. A72 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. A73 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. A74 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). A75 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). [FN30] 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.

FN30 See para. A28 above. A76 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. A77 *266 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. A78 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. A79 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. A80 I therefore suggest that the Court answer the second question in the negative. The third question A81 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. A82 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. A83 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". A84 Thirdly, the national court asks, in the same comments, whether the *267 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, 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. A85 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. A86 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? A87 In Haim I, the Court ruled that Directive 78/686 refers only to holders of a qualification conferred in the Member States. A88 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. A89 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. A90 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". A91 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. A92 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 Council Regulation 1612/68 on freedom of movement for workers

within the Community, [FN31] the last *268 sub-paragraph of Article 3(1) of which recognises that there may be posts which, by their nature, require certain linguistic knowledge. [FN32] FN31 [1968] O.J. Spec. Ed. (II) p. 475. FN32 For the application of this provision by the Court, see Case C-379/87, Groener v. Minister for Education and Another [1989] E.C.R. I-3967. A93 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". A94 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. A95 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. A96 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). A97 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". A98 The national court will need to apply the principle of proportionality as regards the level of knowledge which may be required. A99 According to that principle, the linguistic knowledge demanded should not exceed the level objectively required to ensure that patients' interests are protected. A100 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. A101 In my opinion, the above considerations are sufficient grounds for the third question to be answered in the affirmative. A102 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.

A103 *269 According to Case C-55/94, Gebhard v. Consiglio Dell'Ordine degli Avvocati E Procuratori di Milano: [FN33] [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. [FN34] FN33 [1995] E.C.R. I-4165. FN34 See operative part, para. [6]. A104 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. A105 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. A106 One might also consider, as the Commission suggests, referring to the judgment in Case C-288/89, Stichting Collectieve Antennevoorziening Gouda and Others v. Commissariat voor de Media, [FN35] 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. FN35 [1991] E.C.R. I-4007. A107 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. A108 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 quasiadministrative environment which surrounds appointment as a social security scheme dental practitioner. A109 For this reason I shall only make a cursory examination of the

considerations submitted to the Court which specifically relate to *270 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. A110 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. A111 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. A112 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? A113 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. A114 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. A115 The question remains, therefore, whether appointment as a social security scheme dental practitioner is the appropriate point at which to impose language requirements. A116 One might therefore ask whether it would not be better to require a minimum knowledge of the language at an earlier stage, when *271 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.

A117 There are two possible answers to this legitimate question. A118 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. A119 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 nonMember 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. A120 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. A121 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 A122 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, *272 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 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. JUDGMENT

1 By order of 8 December 1997, received at the Court on 15 December 1997, the Landgericht (Regional Court) Düsseldorf referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) three questions on the conditions and detailed rules under which a Member State and, possibly, a public-law body of that State may incur liability for loss and damage caused to individuals as a result of breaches of Community law for which that State or body can be held responsible, and on the legality of making the appointment of a national of another Member State as a dental practitioner under a social security scheme conditional upon his having a sufficient knowledge of the language of the Member State of establishment. 2 Those questions were raised in proceedings brought by Salomone Haim, a dental practitioner, against the Kassenzahnärztliche Vereinigung Nordrhein (Association of Dental Practitioners of Social Security Schemes in Nordrhein, "the KVN"), a public-law body, in order to obtain compensation for the loss of earnings which he claims to have suffered as a result of the breach of Community law by the KVN. Community law 3 Article 2 of Council 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 [FN36] provides that each Member State is to recognise the diplomas, certificates and other evidence of formal qualifications in dentistry which are exhaustively listed in Article 3 of that Directive and which are awarded by the other Member States, by giving such qualifications, as far as the right to take up and pursue the activities of a dental practitioner is concerned, the same effect in its territory as those which the Member State itself awards. FN36 [1978] O.J. L233/1. 4 Article 18(3) of Directive 78/686 provides: Member States shall see to it that, where appropriate, the persons *273 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. 5 Article 20 of Directive 78/686 provides: Member States which require their own nationals to complete a preparatory training period in order to become eligible for appointment as a dental practitioner of a social security scheme may impose the same requirement on nationals of the other Member States for a period of eight years following notification of this Directive. The training period may not, however, exceed six months. National law

6 Paragraph 21 of the Zulassungsverordnung für Kassenzahnärzte [FN37] as amended ("the ZOK"), provides: A dental practitioner with serious shortcomings relating to his mental state or to his person, in particular one who has been a drug-addict or an alcoholic in the five years preceding the submission of his application, shall not be suitable to practise as an approved practitioner of a social security scheme. FN37 Regulation of 28 May 1957 on Eligibility for Appointment as a Dental Practitioner of a Social Security Scheme, BGBl. 1957 I, p. 582. The dispute in the main proceedings 7 Mr Haim, an Italian national, holds a diploma in dentistry awarded in 1946 by the University of Istanbul, Turkey, the town in which he practised as a dentist until 1980. 8 In 1981, he obtained permission ("Approbation") to practise as a dental practitioner in Germany, which enabled him to practise there as a self-employed dentist. 9 In 1982, his Turkish diploma was recognised by the Belgian authorities as equivalent to the "diplôme légal belge de licencié en science dentaire" (the official diploma of graduate in dental science). Mr Haim subsequently worked in Brussels as a dental practitioner under a social security scheme. He interrupted that activity between November 1991 and August 1992 in order to work in his son's dental practice in Germany. 10 In 1988, Mr Haim applied to the KVN to be enrolled on the register of dental practitioners so that he could then be eligible for appointment as a dental practitioner under a social security scheme. 11 Under paragraph 3.2 of the ZOK, such enrolment is subject to completion of a preparatory training period of at least two years. However, under paragraph 3.4 of the ZOK, that condition does not apply to dental practitioners who have obtained in another Member State a qualification recognised under Community law and who are authorised to practise that profession. 12 *274 By decision of 10 August 1988, the KVN refused to enrol Mr Haim on the register of dental practitioners on the ground that he had not completed the twoyear preparatory training period required by paragraph 3 of the ZOK. It took the view that there could be no derogation from that provision because Mr Haim did not hold a qualification awarded by a Member State, but only a diploma from a non-member country, recognised by a Member State as equivalent to the diploma awarded in that Member State. 13 Mr Haim challenged that decision, arguing, inter alia, that it infringed the EEC Treaty. After seeking the opinion of the Minister for Employment, Health and Social Affairs of the Land Nordrhein-Westfalen, its supervisory authority, which shared its opinion, the KVN rejected Mr Haim's complaint by decision of 28 September 1988. 14 Mr Haim's action against the KVN's decision was dismissed by judgment of

the Sozialgericht (Social Court) Düsseldorf of 28 March 1990 and then, on appeal, by judgment of the Landessozialgericht (Higher Social Court) NordrheinWestfalen of 24 October 1990. On appeal on a point of law, the Bundessozialgericht (Federal Social Court), by order of 20 May 1992, made a reference to the Court of Justice for a preliminary ruling on the interpretation of Article 20 of Directive 78/686 and of Article 52 of the EC Treaty (now, after amendment, Article 43 EC). 15 In Case C-319/92, Haim v. Kassenzahnärztliche Vereinigung Nordrhein [FN38] ("Haim I"), the Court ruled that Article 20 of Directive 78/686 does not prohibit a Member State from requiring a national of another Member State who has none of the qualifications listed in Article 3 of that Directive to complete a preparatory training period in order to be eligible for appointment as a dental practitioner under a social security scheme even though he is authorised to practise in the territory of the first State. Nor does that Article exempt from the preparatory training period a national of a Member State who holds a qualification awarded by a non-member country, where that qualification has been recognised by another Member State as equivalent to one listed in Article 3 of the Directive. The Court added, however, 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 what is required by that legislation. FN38 [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169 *275 . 16 Following that judgment, Mr Haim was enrolled on the register of dental practitioners by decision of 4 January 1995. On account of his age, he did not take the steps necessary to obtain his appointment as a dental practitioner under a social security scheme. 17 Mr Haim none the less brought a further action against the KVN before the Landgericht Düsseldorf in order to obtain compensation for the loss of earnings which he claims to have suffered by virtue of the fact that, between 1 September 1988 and the end of 1994, his earnings were lower than those which he could have expected if he had practised as a dental practitioner under a social security scheme in Germany. 18 The Landgericht considers that the KVN was wrong to refuse to enrol Mr Haim on the register of dental practitioners in 1988, since it failed to take account of the professional experience he had acquired when working as an approved dental practitioner in Belgium. However, in taking such a decision, the KVN acted in good faith. 19 First, paragraph 3 of the ZOK did not provide for the possibility of derogation,

on account of professional experience acquired by a dental practitioner abroad, from the obligation to complete a two-year preparatory training period. 20 Secondly, it was by reference to Article 52 of the Treaty, which guarantees freedom of establishment, that the KVN's decision turned out to be unlawful. The question whether, and to what extent, respect for Mr Haim's freedom of establishment required his professional experience to be taken into account had not been decided at that time. According to the national court, it is only since the judgment in Case C-340/89, Vlassopoulou v. Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg, [FN39] that it has been clear that Mr Haim's professional experience should have been taken into consideration. FN39 [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. 21 The national court concludes accordingly that the KVN, in refusing to enrol Mr Haim on the register of dental practitioners in 1988, did not commit a wrong under German law governing the administrative liability of public authorities and that consequently Mr Haim's action in damages has no basis in domestic law. 22 The national court wonders, however, whether Mr Haim could derive a right to reparation against the KVN directly from Community law since, according to the case law of the Court of Justice, a Member State is liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible, even in the case of an unlawful administrative act. 23 Furthermore, having regard to the KVN's argument that Mr Haim, even if he had been enrolled on the register of dental practitioners since 1988, would not have obtained his appointment as an approved dental practitioner because of his insufficient knowledge of German, the Landgericht wonders whether the national authorities are entitled *276 to make the appointment of a person such as Mr Haim as a dental practitioner under a social security scheme subject to language requirements. 24 The Landgericht Düsseldorf therefore decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: 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? The first question

25 By its first question, the national court is asking essentially whether Community law precludes a public-law body, in addition to the Member State itself, from incurring liability to make reparation for loss and damage caused to individuals as a result of measures which it took in breach of Community law. 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. [FN40] FN40 See Joined Cases C 6 & 9/90, Francovich and Another v. Italy: [1995] I.C.R. 722; [1991] E.C.R. I-5357; [1993] 2 C.M.L.R. 66, para. [35]; Joined Cases C 46 & 48/93, Brasserie du Pêcheur SA v. Germany;R. v. Secretary of State for Transport, Ex parte Factortame Ltd and Others: [1996] Q.B. 404; [1996] E.C.R. I1029; [1996] 1 C.M.L.R. 889, para. [31]; Case C-392/93, R. v. H.M. Treasury, Ex parte British Telecommunications Plc: [1996] Q.B. 615; [1996] E.C.R. I-1631; [1996] 2 C.M.L.R. 217, para. [38]; Case C-5/94, R. v. Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd: [1997] Q.B. 139; [1996] E.C.R. I-2553; [1996] 2 C.M.L.R. 391, para. [24]; Joined Cases C 178, 179, 188, 189 & 190/94, Dillenkofer and Others v. Germany: [1997] Q.B. 259; [1996] E.C.R. I-4845; [1996] 3 C.M.L.R. 469, para. [20]; and Case C-127/95, Norbrook Laboratories Ltd v. Ministry of Agriculture, Fisheries and Food: [1998] E.C.R. I-1531; [1998] 3 C.M.L.R. 809, para. [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 *277 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. [FN41] FN41 Case C-302/97, Konle v. Austria: [1999] E.C.R. I-3099; [2000] 2 C.M.L.R. 963, para. [62]. 28 Member States cannot, therefore, escape that liability either by pleading the internal distribution of powers and responsibilities as between the bodies which exist within their national legal order or by claiming that the public authority responsible for the breach of Community law did not have the necessary powers, knowledge, means or resources. 29 However, in the judgments cited in paragraphs 26 and 27 above there is nothing to suggest that reparation for loss and damage caused to individuals by national measures taken in breach of Community law must necessarily be provided by the Member State itself in order for its obligations under Community law to be fulfilled. 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. [FN42] FN42 Konle, cited above in fn. 41, paras [63] & [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 *278 framed as to make it in practice impossible or excessively difficult to obtain reparation. [FN43] FN43 Francovich and Others, cited above in fn. 40, paras [41]-[43]; and Norbrook Laboratories, cited above in fn. 40, para. [111]. 34 In view of the foregoing, the answer to the first question must be that Community law does not preclude a public-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. The second question 35 By its second question, the national court asks whether, 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, the mere fact that he did not have any discretion in taking his decision gives rise to a serious breach of Community law, within the meaning of the case law of the Court. 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. [FN44] FN44 Norbrook Laboratories, cited above in fn. 40, para. [107]. 37 Those three conditions must be satisfied both where the loss or damage for which reparation is sought is the result of a failure to act on the part of the Member State, for example in the event of a failure to implement a Community Directive, and where it is the result of the adoption of a legislative or administrative act in breach of Community law, whether it was adopted by the Member State itself or by a public-law body which is legally independent from the State. 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 [FN45] 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. [FN46] FN45 See Brasserie du Pêcheur and Factortame, cited above in fn. 40, para. [55]; British Telecommunications, cited above in fn. 40, para. [42]; and Dillenkofer and Others, cited above in fn. 40, para. [25]. FN46 See Hedley Lomas, cited above in fn. 40, para. [28]; and Norbrook Laboratories, cited above in fn. 40, para. [109]. 39 The obligation to make reparation for loss or damage caused to *279 individuals cannot, however, depend upon a condition based on any concept of fault going beyond that of a sufficiently serious breach of Community law. [FN47] FN47 Brasserie du Pêcheur and Factortame, cited above in fn. 40, para. [79]. 40 The discretion referred to in paragraph 38 above is that enjoyed by the Member State concerned. Its existence and its scope are 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. 41 It is also clear from the case law cited in paragraph 38 that a mere infringement of Community law by a Member State may, but does not

necessarily, constitute a sufficiently serious breach. 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. [FN48] FN48 See Brasserie du Pêcheur and Factortame, cited above in fn. 40, para. [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 [FN49] in accordance with the guidelines laid down by the Court. [FN50] FN49 Brasserie du Pêcheur and Factortame, cited above in fn. 40, para. [58]. FN50 Konle, para. [58]. 45 In this respect, it should be noted that the rule of Community law concerned is a Treaty provision which has been directly applicable since the transitional period laid down by the Treaty came to an end, long before the facts in the main proceedings arose. 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, [FN51] 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 *280 by those diplomas and the knowledge and qualifications required by the national rules. FN51 Cited above in fn. 39. 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. 48 In the light of the criteria and observations referred to in paragraphs 43 to 47 above, it is for the national court to examine whether or not, in the case before it, there is a serious breach of Community law. 49 The answer to the second question must therefore be that, in order to determine whether there is a serious breach of Community law, within the meaning of the case law of the Court, 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 third question 50 By its third question, the national court asks whether 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, conditional upon his having the linguistic knowledge necessary for the exercise of his profession in the Member State of establishment. 51 The national court states that such language requirements might be contrary to Article 18(3) of Directive 78/686 and to Article 52 of the Treaty. 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. [FN52] FN52 See Case C-154/93, Tawil-Albertini v. Ministre des Affaires Sociales: [1994] E.C.R. I-451; [1995] 1 C.M.L.R. 612, para. [13]. 53 Since Mr Haim's diploma was awarded by a non-member country, and notwithstanding the fact that it has been recognised by another *281 Member State as equivalent to a diploma mentioned in Article 3 of Directive 78/686, it does not fall within the scope of that Directive. 54 Consequently, it is not necessary to examine whether or not, in a case such as that at issue in the main proceedings, the requirement of linguistic knowledge for appointment as a dental practitioner under a social security scheme is contrary to Article 18(3) of that Directive. 55 Furthermore, relying directly on Article 52 of the Treaty, Mr Haim claims that, contrary to what is said by the national court, paragraph 21 of the ZOK cannot

justify the requirement of linguistic knowledge such as that demanded of him in the case in the main proceedings. That provision provides that a dental practitioner with serious shortcomings relating to his mental state or to his person, in particular one who has been a drug addict or an alcoholic in the five years preceding the submission of his application to be appointed as a dental practitioner under a social security scheme, is not suitable to practise as an appointed practitioner. According to Mr Haim, it is clear from the situations mentioned as examples in that provision that it does not, and cannot, apply to linguistic shortcomings. 56 In this respect, while it is true that paragraph 21 of the ZOK does not appear, according to its wording, to relate to the linguistic knowledge of the person concerned, it is not for the Court to rule, in the context of a reference for a preliminary ruling, on the interpretation to be given to a provision of national law and, more specifically, on the question of which types of shortcoming are the subject of a national provision such as paragraph 21 of the ZOK. 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. [FN53] FN53 See, in particular, Case C-55/94, Gebhard v. Consiglio Dell'Ordine degli Avvocati E Procuratori di Milano: [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603, para. [37]; and Case C-212/97, Centros Ltd v. Erhvervs- og Selskabsstyrelsen: [1999] E.C.R. I-1459; [1999] 2 C.M.L.R. 551, para. [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. 59 As the Advocate General notes in paragraphs A105 to A113 of his Opinion, 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 *282 scheme subject to language requirements. Dialogue with patients, compliance with rules of professional conduct and law specific to dentistry in the Member State of establishment and performance of administrative tasks require an appropriate knowledge of the language of that State. 60 However, it is important that language requirements designed to ensure that the dental practitioner will be able to communicate effectively with his patients, whose mother tongue is that of the Member State concerned, and with the administrative authorities and the professional bodies of that State 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. 61 The answer to the third question must therefore be that 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, conditional upon his having the linguistic knowledge necessary for the exercise of his profession in the Member State of establishment. Costs 62 The costs incurred by the German, Danish, Greek, Spanish, French, Italian, Swedish and U.K. Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. R1 Order On those grounds, THE COURT, in answer to the questions referred to it by the Landgericht Düsseldorf by order of 8 December 1997, HEREBY RULES: 1. Community law does not 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. 2. In order to determine whether there is a serious breach of Community law, within the meaning of the case law of the Court, 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. 3. The competent authorities of a Member State may make the *283 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 Council 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. (c) Sweet & Maxwell Limited

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