Cross-border healthcare provided via telemedicine: what is the relevant jurisdiction?

The case C‑115/24 of the Court of Justice of the EU (Österreichische Zahnärztekammer) concerns the question of which national law applies to cross‑border telemedicine services within the EU.

Case C-115/24 involved a preliminary ruling under Article 267 TFEU by the ECJ, which was handed down on 11 September 2025 by the ECJ for final judgment to the Oberste Gerichtshof of Austria (the Austrian Supreme Court)^{[2] [3]}.

All European courts of last instance are required to stall proceedings and submit questions that can potentially infringe EU law to the ECJ for a preliminary ruling, which is binding for the courts of the member states of the EU.

This case involved telemedicine and cross-border healthcare across EU borders.

Legal question

The key issue was whether these cross‑border telemedical services must comply with the professional rules of the state where the patients are located (Austria) or those of the state where the service provider is established (Germany). This required interpretation of Directive 2011/24/EU on patients’ rights in cross‑border healthcare and its relationship with the freedom to provide services under EU law, which constitutes one of the four freedoms of the EU.

Relevant EU legislation

The case involved EU Directives 98/34 and (EU) 2015/1535.

Austrian law 

The Austrian legal framework governing dentistry, as outlined in the EU-Patientenmobilitätsgesetz (Law on patient mobility in the European Union) and the Zahnärztegesetz ( ZÄG ) (Law on Dentists) does not contain a provision addressing telemedicine services. 

The ZÄG stipulates that only individuals qualified as dentists may practise the profession^[4], and that dentists’ activities extend to complementary and alternative therapies, carried out directly or indirectly^[5]. Further, dentists are expected to examine patients for diseases and oral treatment, which extends to the prescription of medicine, remedies and dental diagnostic aids^[6].  

It is also noted that, with reference to paragraph 31 of the EU-Patientenmobilitätsgesetz, which governs the freedom to provide dentistry services:

‘(1)       Nationals of a State that is a party to the Agreement on the European Economic Area (EEA) or of the Swiss Confederation who lawfully practise the profession of dentist in one of the other States that are parties to the EEA Agreement, or in Switzerland, may, in the exercise of their freedom to provide services, temporarily practise as dentists in Austria, without being registered on the list of dentists, from their place of business or place of employment abroad. 

(2)        Before providing a dental service in Austria for the first time, which requires a temporary stay in federal territory, the service provider must notify the Austrian Dental Chamber in writing, via the Dental Chamber of the Land in which the service is to be provided, enclosing the following documents: …’ 

These legislative provisions are overseen by the Austrian Dental Chamber, the official regulatory authority representing dental practitioners and dentists in Austria. 

Facts

The Austrian Dental Chamber is a body governed by public law headquartered in Vienna (Austria), whose task, according to the national legislation, is to represent the interests of Austrian dentists and dental practitioners.

UJ is a dentist practicing in Austria who is authorised, in the territory of that Member State, to treat patients under treatment contracts concluded with them.

Urban Technology GmbH is a German entity that advertises, via its website, invisible dental aligners which consist of transparent dental splints and are marketed under the brand name DrSmile. Potential customers can, via that website, request an appointment with a ‘partner dentist’ in Austria, such as UJ, practicing in the location they have selected. When such an appointment is made, that partner dentist, at his or her own surgery, takes a medical history, provides an initial consultation, makes a 3D scan of the jaw, and carries out any pre-treatments that might be necessary for the future dental splint therapy. That partner dentist then sends the images and a recommendation regarding the dental alignment procedure to DZK Deutsche Zahnklinik.

Urban Technology GmbH and DZK Deutsche Zahnklinik GmbH are established in Germany and belong to a group of companies that are active in dental medicine and operates worldwide. DZK Deutsche Zahnklinik (DZK), whose shareholders are not dentists, has a licence and other authorisations to operate in Germany.

Initial proceedings in the Landesgericht Klagenfurt (Regional Court, Klagenfurt)

The Austrian Dental Chamber commenced proceedings in the Landesgericht Klagenfurt (Regional Court, Klagenfurt), seeking an injunction and interim relief against UJ. The Chamber requested that the court prohibit UJ from offering dentistry services in Austria on behalf of foreign companies that lacked the authorisations required in accordance with Austrian law. UJ argued that she conducted her services ‘directly, personally and independently’, and that the use of DZK as a private dental care establishment was lawful. 

In the first instance, the Landesgericht Klagenfurt (Regional Court, Klagenfurt) dismissed the application for interim relief and determined that UJ was not an agent of DZK and, as such, did not ‘participate, in Austria, in activities in the field of dentistry carried out by a foreign person’. [1]

The appeal: Oberlandesgericht Graz (Higher Regional Court, Graz, Austria) 

On appeal, the court granted the application for interim relief, on the basis that: 

• UJ acted as an agent of DZK, in accordance with the treatment contracts concluded between DZK and the patients;
• DZK was unauthorised to provide dental services in Austria;
• the treatment services in Austria facilitated by DZK were supplied by UJ as an agent and provided directly and in the absence of information and communication technologies; and
• UJ participated in dentistry activities that were carried out in Austria by a foreign company that is not authorised to practise the profession of dentistry in accordance with the ZÄG and does not have authorisation to operate a healthcare establishment in Austria; and
• UJ infringed the rules under paragraph 24 of the ZÄG and acted as an agent in a foreign company’s interference under paragraph 3 and 4(3) of the ZÄG. 

Further appeal: Oberster Gerichtshof (Supreme Court, Austria)

UJ sought a further appeal of this judgment, which is ordinarily limited to errors of law, where the Austrian Supreme Court contemplated whether UJ participated in activities that aligned with the field of dentistry carried out in Austria by foreign companies. The ECJ deliberated that the contract of service is exclusively between the patient and DZK, as the service provider. In comparison, UJ acts only in accordance with her contractual relationship with DZK, as its agent. 

Court’s decision

The Court held that for purely cross-border telemedical healthcare services, the relevant professional rules are, in principle, those of the Member State of establishment of the provider. A provider who is properly authorised and registered in the state of establishment does not, for those purely telemedical activities, need a separate professional authorisation or registration in the Member State where the patients are located.

Scope and limits

The ruling expressly concerns situations where the health professional remains in the other Member State and the service is provided exclusively via telecommunication. Where there is physical treatment on the territory of another Member State, or mixed constellations involving substantial on-site activity, that Member State may still apply its own admission and professional practice rules.

The Court sought to determine the following four questions: 

The first question considered 

The Court considered

• Whether in the case of telemedicine, Article 3(d) of Directive 2011/24 would apply in the present case where:
  • the service was provided across borders with the support of ICT; or
  • whether it contains an entire treatment contract that may include physical examination in the patient’s member state of residence where the ICT predominates, including;
• in instances where cross-border healthcare was provided via ICT, to a patient by a healthcare provider established in a Member State whereby neither the patients nor service provider were simultaneously present during the consultation.

It was discussed that while DZK provides the telemedicine healthcare, UJ, as the partner dentist, conducts the initial treatment and facilitates the pre-treatments necessary for future dental splint therapy. It was determined that UJ provides healthcare independently at the patient’s request, within the scope of her profession as a dentist in Austria. However, all information and recommendations concerning the future dental alignment procedure is provided to DZK. Therefore, this action does not coincide with the treatment conducted by UJ, and the full performance of the treatment requires the ‘provision, equally independent, of separate telemedicine healthcare’ by DZK. 

As such, Article 3(d) of Directive 2011/24 corresponds solely to healthcare provided, exclusively via ICT to a patient by a healthcare provider established in a Member State different to the patient’s Member State, at a distance without the patient and the provider being simultaneously present. As such, the article did not apply to a hybrid model of consultation in person and ICT.

The second question considered

The Court further questioned whether: 

Article 3(d) of Directive 2011/24 should apply to all fields governed by that directive or only for the reimbursement of the costs of cross-border healthcare, as referred to in Article 7 of that directive; and 

Article 3(d) of Directive 2011/24 and Article 3(1) of Directive 2000/31 should be interpreted as meaning that telemedicine services must be provided according to the legislation governing the Member State where the provider is established.

The Court first concluded that the Member State of treatment in respect of care other than that provided through telemedicine must be determined on the basis of the territory where that care is actually provided .

Second, Article 3(a) of Directive 2011/24 defines ‘healthcare’ as health services provided by health professionals to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices.

Third, it must be recalled that Article 7(7) of Directive 2011/24 states that the Member State of affiliation may impose on an insured person seeking reimbursement of the costs of cross-border healthcare, ‘including healthcare received through means of telemedicine’, the same conditions as those set for care provided in that State.

Fourth, Article 2 of Directive 2000/31, read in conjunction with Article 1(1)(b) of Directive 2015/1535, defines ‘information society service’ as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’. ‘At a distance’ means that ‘the service is provided without the parties being simultaneously present’.

While DZK Deutsche Zahnklinik provides the telemedicine healthcare under that treatment, UJ, as a partner dentist, takes, in her own surgery, a medical history, provides an initial consultation, makes a 3D scan of the jaw, and carries out any pre-treatments that might be necessary for the future dental splint therapy. Irrespective of any assessment as to whether the healthcare provided by UJ or by DZK Deutsche Zahnklinik might be predominant, it appears that UJ provides healthcare independently, at the patient’s request, in pursuit of her profession as a dentist in Austria, and records the result of her activity in a recommendation made to DZK Deutsche Zahnklinik concerning the dental alignment procedure. It is true that UJ’s activity is part of the orthodontic treatment from the DrSmile brand. Nevertheless, that activity does not coincide with that treatment, the full performance of which further requires the provision, equally independently, of separate telemedicine healthcare by DZK Deutsche Zahnklinik, in the framework of the division of work under the contractual relationship between DZK Deutsche Zahnklinik and UJ.

Telemedicine is precisely a medical practice – in the present case a cross-border practice – that facilitates access to healthcare; that healthcare is provided in a Member State where the provider of that care is established , which is different from the Member State of affiliation where the patients receiving the care reside.  

Applying the safety, hygiene and liability rules of another Member State to a medical practitioner’s activity in the Member State in which he or she is established, in connection with the physical examinations of that practitioner’s patients, on the sole ground that the complex medical treatment of which that activity is part includes also healthcare provided, via telemedicine, by other medical practitioners established in other Member States would undermine the competence of the Member State of treatment to organise its healthcare and would expose medical practitioners and patients to legal uncertainty

The Court clarified that Article 3(d) of Directive 2011/24 is not limited to the reimbursement of cross-border healthcare costs (as mentioned in Article 7 of that directive) but applies to all areas governed by the Directive. Therefore, the rules that apply to cross-border healthcare, apply to a full range of patient’s rights, responsibilities of Member States and cooperation mechanisms established by the Directive.

The Court further held that both Article 3(d) of Directive 2011/24 and Article 3(1) of Directive 2000/31 requires that telemedicine services be provided in accordance with the legislation, standards and quality guidance of the Member State where the healthcare provider is established . As such, it is the legislation governing the provider’s country (as opposed to the patient’s country) that governs the provision of telemedicine services.

Accordingly, cross-border healthcare that is provided via telemedicine, since it is regarded as being provided in the Member State where the healthcare provider is established, must comply with that Member State’s legislation and standards and guidelines on quality and safety, as well as with EU legislation on safety standards .

The third question considered 

The third question involved the interaction between, on the one hand, Article 2(n), Article 3(d) and Article 4(1)(a) of Directive 2011/24, and, on the other hand, Article 5(3) of Directive 2005/36, under which a service provider who ‘moves’ to another Member State is to be subject to rules of a professional, statutory or administrative nature applicable in the host Member State.

The Court queried whether Article 5 of Directive 2005/36 must be interpreted to apply: 

1. to the provider of cross-border healthcare in instances where telemedicine is utilised; and
2. to the provider, established in a Member State, who arranges through contractual means, for a local provider in another Member State to deliver healthcare in person to the patient.

It was discussed that Article 5 of Directive 2005/36 applies where the service provider moves to the territory of the host Member State for the purpose of delivering professional services on a temporary or occasional basis. However, in the context of telemedicine, where healthcare is delivered exclusively via ICT, neither the provider nor the patient travels to another Member State . As a result, the physical movement required by Directive 2005/36 does not occur in telemedicine scenarios, and, thus, the Directive does not apply to cross-border telemedicine providers.

Consequently, telemedicine necessarily means that the health service is provided without anyone moving, that is to say, without the patient moving to the Member State where the provider is established but also without the provider moving to the Member State where the patient resides. In fact, it is the health service that, owing to its cross-border nature, ‘moves’.  

Further, the court considered that the delivery of healthcare in person is attributed to the local professional who is authorised under the host Member State’s legislation, irrespective of any contractual relationship with a foreign entity. If the patient’s contract is with a foreign company, or the local provider acts as an agent, this does not mean the foreign provider has ‘moved’ for the purposes of Directive 2005/36. Overall, the local provider remains the healthcare provider to the patient and, as such, the Directive does not apply to these circumstances as the physical movement of the service provider has not been satisfied. 

In the light of the foregoing, the answer to the third question is that Article 5 of Directive 2005/36 must be interpreted as meaning that that directive does not apply to a provider of cross-border healthcare in the case of telemedicine, or to a provider, established in a Member State, that, without moving, has a provider established in another Member State provide healthcare in person to a patient residing in that second Member State.

The fourth question considered 

Finally, the court questioned whether UJ, by acting not on the basis of a contract relating to the treatment she herself carries out but only as an agent of DZK Deutsche Zahnklinik, infringes the Austrian legislation governing the profession of dentistry. DZK Deutsche Zahnklinik, while authorised to operate in Germany as a dental clinic, does not have an authorisation to operate a healthcare establishment under Austrian law and is not authorised under the ZÄG. Furthermore, its shareholder structure does not comply with the provisions of that law. 

The Court stated that DZK Deutsche Zahnklinik cannot be regarded as a healthcare provider in Austria in the light of the fact that UJ provides healthcare in person in that State. 

Ruling

It was determined that: 

1. Article 3(d) and (e) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare must be interpreted as meaning that the concept of cross-border healthcare provided in the case of telemedicine, for the purposes of that article, corresponds solely to healthcare provided, exclusively via information and communication technologies, to a patient by a healthcare provider established in a Member State other than that patient’s Member State of affiliation, at a distance and therefore without that patient and that provider being simultaneously physically present in the same location.
2. Article 3(d) of Directive 2011/24 must be interpreted as applying to all the fields governed by that directive and not only to the reimbursement of the costs of cross-border healthcare referred to in Article 7 of that Directive.
3. Article 3(d) of Directive 2011/24 and Article 3(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as meaning that telemedicine services must be provided in accordance with the legislation of the Member State where the provider is established .
4. Article 5 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications must be interpreted as meaning that that directive does not apply to a provider of cross-border healthcare in the case of telemedicine, or to a provider, established in a Member State, that, without moving, has a provider established in another Member State providing healthcare in person to a patient residing in that second Member State.

For cross-border telemedicine in the EU, the judgment strengthens the ‘country of origin’ principle and facilitates providers in offering services across borders, provided they are lawfully established and authorised in their home state. For patients and national professional bodies, it means that supervision and professional regulation will generally lie with the state of establishment of the telemedical provider, even if the patients are in another Member State.

Telehealth providers must identify the applicable laws before providing telehealth services to foreign patients and ensure that their medical practitioners and other registered health care professionals are adequately registered and insured and ensure their operating structure and terms and conditions and promotion and advertising are compliant. 

It is important to note the position may differ if a telehealth service from a non-EU member country (such as China or India) were to provide telehealth services to residents in an EU member country. The court decision did not clarify that.