C-424/97

OPINION OF MR MISCHO — CASE C-424/97

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered o n 19 May 1999 *

1. This is the second time that the Court tal Practitioners of Social Security Schemes; has been called upon to give a preliminary hereinafter 'the KVN') for enrolment on the ruling on questions referred to it by a register of dental practitioners so that he German court hearing the proceedings could treat patients affiliated to social which have been in progress for over ten security schemes. years between Mr Haim and the German authorities.

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6. In Case C-319/92, 1the Court held, first, 8. Mr Haim is now seeking compensation essentially, that since Mr Haim's diploma for the pecuniary damage arising from a had been awarded to him in Turkey the loss of earnings which he claims to have KVN's decision did not infringe the provi- suffered because, in breach of Community sions of Council Directive 78/686/EEC of law, he was prevented from working in 25 July 1978 concerning the mutual recog- Germany as a dental practitioner under a nition of diplomas, certificates and other social security scheme from 1988 until the evidence of the formal qualifications of end of 1994. He has instituted proceedings practitioners of dentistry, including mea- against the KVN before the Landgericht sures to facilitate the effective exercise of Düsseldorf in furtherance of that claim. the right of establishment and freedom to provide services, 2and, second, that '[i]t is not permissible under Article 52 of the EEC Treaty for the competent authorities of a Member State to refuse appointment as a 9. It is the view of that court that Mr dental practitioner of a social security Haim's claim for compensation cannot be scheme to a national of another Member allowed under German law. It considers, State who has none of the qualifications first, that the KVN did not commit a wrong mentioned in Article 3 of Directive 78/686/ under German law in refusing to enrol Mr EEC, but who has been authorised to Haim on the register of dental practition- practise, and has been practising, his pro- ers, despite the fact that its decision was fession both in the first and in another unlawful, and, second, that the applicant Member State, on the ground that he has cannot rely on the rules relating to inter- not completed the preparatory training ference equivalent to expropriation since he period required by the legislation of the was denied only the prospect of building up first State, without examining whether and, a dental practice in Germany, which might if so, to what extent, the experience already have been profitable, treating patients established by the person concerned corre- affiliated to social security schemes. sponds to that required by that provision'. 3

2. If so: Where a national official has either applied national law conflicting with Community law or applied 13. It is very closely linked to the circum- national law in a manner not in stances of the adoption of the decision conformity with Community law, is infringing Community law which Mr Haim there a serious breach of Community asserts caused the loss in respect of which law simply on the ground that the he is entitled to receive reparation. official had no discretion in making his decision?

14. That decision, signed by one of its officials, was taken by the KVN, a public- law body which is legally independent not only of the German Federal Government 3. May the competent authorities of a but also of the Land of Nordrhein, on the Member State make appointment, as a basis of an instrument, the Zulassungsord- social security scheme dental practi- nung für Zahnärzte (hereinafter 'the tioner, of a national of another Mem- ZOZ'), which, according to the national ber State who is authorised to practise court, has legislative force. in that Member State but has none of the qualifications mentioned in Arti- cle 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 15. According to the national court, we are the host State?' therefore placed in a situation involving

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two unlawful measures, one administrative 19. However, it interprets the case-law of and the other legislative, in which the the Court wrongly in considering that this question therefore arises, which has not so is a question of Community law which has far been considered as such in the case-law not been resolved in that case-law. of the Court, as to the consequences as regards liability of the combination of those two unlawful measures.

17. I shall say straight away that the national court is both right and wrong in asserting that this question 'has so far not 21. What is meant by that in relation to the been settled' in the case-law of the Court. 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 18. It is right to the extent that, in none of liability to the individual laid down by the the judgments the Court has given con- Community judicature are met, 'it is on the cerning the liability of Member States for basis of the rules of national law on liability infringement of Community law, has it had that the State must make reparation for the occasion to rule on whether an autono- consequences of the loss and damage mous public-law body which has adopted caused'. 5 an individual decision in breach of Com- munity law 'may be held liable as well as the Member State'. 5 — See paragraph 42.

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23. It is not, however, a dichotomy inher- ent 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 27. First, whenever the Court acknowl- does not merely create rights and leave edges that Member States have procedural Member States to lay down the conditions autonomy in a particular area, it lays down for exercising them, but also sets out the certain rules which they must strictly procedures which Member States must observe when exercising that autonomy. introduce for individuals to be able to Francovich and Others is no exception to assert those rights. this practice, which stems from a concern to avoid any misunderstanding, since the

6 — Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5. 7 — See paragraph 35.

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Court ruled in that judgment that the 29. To revert to the question referred by the substantive and procedural conditions for national court, it must be stated, as the reparation of loss and damage laid down by various governments which have submitted the national law of the Member States must observations and the Commission all agree, not be less favourable than those relating to that whether or not it is admissible to similar domestic claims and must not be so proceed against both the State and an framed as to make it virtually impossible or independent public body where that body excessively difficult to obtain reparation'. 8 has infringed Community law merely by applying legislation adopted by the State is clearly an aspect of the scheme of repara- tion which it is for the Member State to decide as part of its procedural autonomy.

8 — See paragraph 43. 9 — See paragraph 3 of the operative part. 1 1— See, for example, Case C-33/90 Commission v Italy [1991] 10 — See paragraph 4 of the operative part. ECR I-5987.

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individual decision must be attributed, be that there is no answer to it under whilst also providing that that body can Community law, since the relevant rules are incur liability only in the case of a serious to be found only in national law, provided breach, or adopting strict compliance with of course that they are not structured in the law as a ground for exemption from such a way that they might compromise the liability. There is no need to dwell on such final result required under Community law, an eventuality here because it is one which namely the grant of reparation in accor­ the Court of Justice in Brasserie du Pêcheur dance with its requirements. 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 The second question has little chance of succeeding. It is merely asking the Court whether, under Commu- nity law, the body which adopted the decision which led to Mr Haim's loss, in this case the KVN, may be held liable as well as the Federal Republic of Germany, 36. By its second question, the Landgericht and, for the reasons I have just given, there Düsseldorf seeks a ruling from the Court on is no doubt regarding the answer to this whether, where an official has either question, which can only be in the affirma- applied law conflicting with Community tive. 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.

39. In Dillenkofer and Others, the Court 'It is clear from the above case-law that observed: three conditions must be satisfied for a Member State to be required to compensate for damage thus caused:...'.

'In Brasserie du Pêcheur and Factortame [cited above], at paragraphs 50 and 51, 41. It is therefore indisputable that all three British Telecommunications, 18... and Med- conditions apply in every case. ley Lomas [cited above], at paragraphs 25 and 26, the Court, having regard to the circumstances of the case, 19 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 indivi- 42. This is confirmed by the fact that, in duals; the breach must be sufficiently paragraph 24 of the judgment in Dillenko- serious; and there must be a direct causal fer and Others, the Court of Justice held: link between the breach of the obligation

15 — Joined Cases C-178/94, C-179/94, C-188/94, CI 89/94 a n d C-190/94 Dillenkofer and Others v Germany [\9%\ ECR I-4845. 16 — Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit and Others v Bundesamt für Finanzen [1996] ECR I-5063. 'When the Court held that the conditions 17 — C a s e C-127/95 Norbrook Laboratories v MAFF [1998] ECR 1-1531. under which State liability gives rise to a 18 — Case C-392/93 The Queen v HM Treasury ex pane British right to reparation depended on the nature Telecommunications [1996] ECR I-1631, paragraphs 39 and 40. of the breach of Community law causing 19 — Emphasis added. the damage, that meant that those condi-

45. It therefore remains for me to examine that second condition in greater detail. 49. It is stated in that judgment, may I again point out, that '[i]t is not permissible under Article 52 of the EEC Treaty for the 20 — Emphasis added. competent authorities of a Member State to 21 — See paragraph 54'. refuse appointment as a dental practitioner

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of a social security scheme to a national of 53. Is it to be concluded therefore that another Member State who has none of the those infringements constitute ipso facto qualifications mentioned in Article 3 of sufficiently serious breaches of Community Directive 78/686/EEC, but who has been law giving rise to a right to compensation? authorised to practise, and has been prac- tising, 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 whe- ther and, if so, to what extent, the experi- 54. That is not necessarily so. The national ence already established by the person court can only reach this conclusion after concerned corresponds to that required by duly taking into account 'each type of that provision'. situation' facing it. 23

22 — See Fratelli Costanzo. 23 — See Dillenkofer and Others, paragraph 24.

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facts of the case were to be characterised as and letter of Directive 78/686. 2 4On the a sufficiently serious breach of Community contrary, as the Court of Justice ruled in law. In my opinion, the Court could adopt Haim I, Article 20 of Directive 78/686 does the same approach in the present case. 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 per- 57. The national court, the Member States iod a national of a Member State who which submitted observations and the holds a qualification awarded by a non- Commission have all expressed the view member State, where that qualification has that, in this case, the national legislature been recognised by another Member State and the competent administrative body or as equivalent to a diploma awarded in a its official committed merely an excusable Member State. error of law and that they should therefore not incur liability. I suggest that the Court should also take this view.

61. Secondly, the national regulation on dentistry was not clearly in breach of Article 52 of the EC Treaty. The plaintiff's situation was quite exceptional and came under Article 52 solely because three cumu- 58. It was the Commission which set out, lative conditions were met: namely, his most clearly and most exhaustively, the qualification was obtained in a non-mem- evidence to this effect, and I can but repeat ber State, he had practised in a Member its line of argument. State which had recognised that qualifica- tion as equivalent to the qualifications which it awards, and he had applied to treat patients under social security schemes in another Member State.

63. It should also be pointed out that, in sion to propose a corresponding amend- 1988, when the defendant's administrative ment to Directive 78/686. The apparent decision was taken in pursuance of the need for legislative clarification also shows regulation in question, the case-law of the that the German legislature could not Court did not provide any indication as to foresee the significance of Article 52 of how Article 52 of the EC Treaty should be the EC Treaty in circumstances such as interpreted as regards freedom of establish- those in the main proceedings. ment for dentists in the context of the particular circumstances of the main pro- ceedings. 2 5A 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 Arti- 66. The Commission therefore concludes cle 52 of the EC Treaty. 26 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-mem- ber State and practised in a Member State 64. Moreover, it should be pointed out that other than the host State, the German the Court had not yet delivered its judg- legislature committed an error of law ment in Ylassopoulou. 27According to that which was excusable within the meaning judgment, a host country is not only of Brasserie du Pêcheur and Factortame. required to recognise qualifications obtained in another Member State but, where it is necessary to complete a period of preparation or training for entry into the profession in the host country, an assess- ment must be made as to whether profes- sional experience acquired either in the 67. The Commission goes on to examine State of origin or in the host State may be whether the defendant in the main proceed- regarded as satisfying that requirement in ings committed a sufficiently serious breach full or in part. Furthermore, unlike the of Community law. Here again, it considers main proceedings in this case, that judg- that the defendant committed an excusable ment concerned a qualification in law error of law in failing to take into account obtained in a Member State. the applicant's professional experience for the purposes of exemption from the pre- paratory training period.

69. I entirely agree with the Commission's only relevant factor when assessing State line of thinking. liability under Community law is the discretion which Community law allows the legislating State or the administering State, a term which covers a quasi-govern- mental body such as the KVN, the defen- dant in the main proceedings. 70. One particular aspect of the second question, however, still needs to be clar- ified, namely whether the national court was referring to the discretion of the official under Community law or under national law. 73. In its statement of grounds relating to the second question, the national court raises, in passing, a completely different case, namely that in which an official has wrongly applied national provisions which are in accordance with Community law. 71. The Swedish Government and the Commission seem to take the view that the Landgericht Düsseldorf was referring here to the official's lack of discretion under national law. However, even though we are only onlookers so far as German law is concerned, we can assume that the 74. I think that in such a case State liability national body and its officials did not have should be assessed solely according to the such discretion. As the Commission rules concerning administrative liability in pointed out, the national regulation on force in the State in question, including dentistry did not contain any provision where necessary those which make repara- which would authorise the competent offi- tion of loss or damage conditional upon cial to exempt persons other than those fault (intentional or negligent). listed in Paragraph 3.4 of the ZOZ from the obligation to complete a training per- iod, and the body and its official correctly applied the regulation in the light of Ger- man law. 75. However, I do not think it necessary for the Court to go back on its ruling in Brasserie du Pêcheur and Factortame, as the German Government has asked it to do, as regards the concept of fault (intentional 72. If that is what the national court or negligent). 28 Admittedly, that was a case means, the answer should be, as the in which a breach of Community law was Swedish Government suggests, that the attributable to a State in an area in which it discretion allowed an individual official under national law is irrelevant as regards the issue before the Court of Justice. The 28 — See point 28 above.

77. The Court went on to confirm this The third question 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 81. The third question concerns whether above, of the judgment in Brasserie du the appointment, as a social security

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scheme dental practitioner, of a national of 84. Thirdly, the national court asks, in the another Member State who holds a same comments, whether the imposition of diploma awarded by a non-member State a linguistic requirement at the time of can be conditional upon the linguistic appointment as a social security scheme knowledge of the person concerned. I shall dental practitioner 'might infringe Arti- first try to establish precisely the scope of cle 18(3) of Directive 78/686/EEC, since this question. 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 82. First and foremost, it is very clear that diploma of that State. It also needs to be the reason the question has been referred to considered whether unlawful discrimina- the Court is that the national court con- tion has taken place in breach of Article 52 siders that it has been established that of the EEC Treaty'. 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 85. I shall look first of all at the question of result in the Court's exceeding its jurisdic- the applicability of Article 18(3) of Direc- tion. tive 78/686. That paragraph provides:

87. In Haim I the Court ruled that Direc- tive 78/686 refers only to holders of a qualification conferred in the Member States. 92. Here, in the field of freedom of estab- lishment and freedom to provide services, is a requirement which was taken into account in respect of employed persons by Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom 88. It is certain therefore that since Direc- of movement for workers within the Com- tive 78/686 is intended to grant facilities munity, 2 9the last subparagraph of Arti- only to the holders of such qualifications, it cle 3(1) of which recognises that there may cannot be relied on by Mr Haim. be posts which, by their nature, require certain linguistic knowledge. 30

100. Moreover, there can be hardly any 95. However, Article 18(3) of Directive doubt that if the dentist has the knowledge 78/686 would have no practical effect if a necessary for this purpose he will ipso facto Member State were not able to test for the also have the knowledge he needs in order existence of the 'necessary' linguistic to fill in forms for the sickness fund, knowledge at any time. understand the circulars issued by that fund and take part in meetings which it organises.

96. There is no reason why such tests should not be carried out when an applica- tion for appointment as a social security 101. In my, opinion, the above considera- scheme dental practitioner is being consid- tions are sufficient grounds for the third ered, but they could also be carried out on question to be answered in the affirmative. some other occasion (provided the appli- cant has had a reasonable amount of time to acquire the necessary knowledge).

102. However, in case the Court does not share this reasoning a fortiori which, like 97. As regards how the knowledge is to be the Commission, I have just advocated, and checked, I share the Commission's view since the national court in its commentary that 'a written or oral language test would also questions whether the imposition of a for example constitute an appropriate linguistic requirement at the time of means'. appointment as a social security scheme dental practitioner might constitute unlaw- ful discrimination in breach of Article 52 of the EC Treaty, I think I should also consider the question from this perspective. 98. The national court will need to apply the principle of proportionality as regards the level of knowledge which may be required. 103. According to Gebhard, 31 '[n]ational measures liable to hinder or make less attractive the exercise of fundamental free-

105. As for the second condition, the opinions which were expressed in the observations submitted to the Court, 108. As I have already pointed out, a including those of Mr Haim, concur to a practitioner who has the necessary knowl- great extent in recognising that, in the edge to carry on such a dialogue will also relationship between a medical practitioner be able to cope in the quasi-administrative and the patient consulting him, it is essen- environment which surrounds appointment tial that they can communicate. No-one as a social security scheme dental practi- would attempt to deny that in order for a tioner. doctor or dentist to provide effective treat- ment 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 109. For this reason I shall only make a the explanations provided as to the nature cursory examination of the considerations of the problem and the advice accompany- submitted to the Court which specifically ing the recommended treatment should be relate to working as a social security fully understood by the patient so that he scheme dental practitioner. These include can assist his own recovery.

33 — Case C-288/89 Collectieve Antennevoorziening Couda and Others v Commissariat voor de Media [1991] ECR 32 — See operative part, paragraph 6. I-4007.

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the requirements that a practitioner should 112. Is it really feasible for a dental practi- apply scales of charges, supply statements tioner to have all the circulars he receives of services provided, participate in special from the sickness funds translated by training activities and report on his activ- experts and to be accompanied by a ities to the sickness funds. In order to meet simultaneous interpreter whenever he is all those obligations, which are an integral required to attend meetings arranged for part of treating patients affiliated to social social security scheme dental practitioners? security schemes, it is necessary for a practitioner who provides such treatment to have an adequate command of the language of the host country.

114. I now come to the third condition, 111. Although I am in favour of not which is that the measure must be suitable ascribing excessive significance to the for securing the attainment of the objective administrative tasks of a social security which it pursues. It is clear from the scheme dental practitioner, whose main foregoing that the prime objective of pro- activity must be to provide treatment, and viding adequate treatment, to which of recognising that the administrative side patients are entitled, fully justifies the of the work of a dental practice can for the requirement that a practitioner should most part be entrusted to secretarial staff, I provide evidence of adequate linguistic do consider that a dental practitioner must knowledge. 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, 115. The question remains, therefore, whe- as does Mr Haim, that a practitioner who ther appointment as a social security encounters language difficulties can easily scheme dental practitioner is the appropri- overcome them by using the services of ate point at which to impose language translators. requirements.

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116. One might therefore ask whether it Mr Haim's case, it cannot at a subsequent would not be better to require a minimum stage claim the need for a command of the knowledge of the language at an earlier language on the part of a holder of a stage, when authorisation is granted to qualification from a non-member State practise as a dental practitioner in a without coming up against the rule in particular country. A lack of understanding Gebhard, when in the case of holders of a between a dentist and his patient may have qualification awarded by another Member dramatic consequences, whilst a lack of State the host State is required under understanding between a dentist and the Article 18(3) of Directive 78/686 to con- sickness fund would only lead to adminis- cern itself with their level of knowledge in trative problems. this field.

(1) If an official of a legally independent public-law body of a Member State infringes primary Community law when applying national law in the context of an individual decision, there is nothing from the point of view of Community law to preclude the public-law body from being held liable as well as the Member State.

(2) Where a national official has either applied national law conflicting with Community law or applied national law in a manner not in conformity with Community law, there is not a serious breach of Community law simply on the ground that the official had no discretion in making his decision.

(3) Article 52 of the EC Treaty must be interpreted as meaning that the competent authorities of a Member State may make appointment, as a social security scheme dental practitioner, of a national of another Member State who is authorised to practise in that Member State but has none of the qualifications mentioned in Article 3 of Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, conditional upon that person's having the knowledge of the official or national language of the host State which he needs to protect his patient's interests.

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