Defining Borders in Borderless Care

What counts as telemedicine under EU law? Our Life Sciences team examine a recent Advocate General Opinion before the Court of Justice of the European Union, which sheds light on how remote healthcare services should be treated under EU law. This article is essential reading for the various stakeholders navigating telehealth delivery in the EU.

Telemedicine is redefining the delivery of healthcare by enabling remote consultations, treatment and patient monitoring. As these services are still relatively new and undefined, guidance from the European Court of Justice (ECJ) on the scope of what constitutes ‘telemedicine’ under EU law is arguably overdue. A recent Opinion of the Advocate General (AG), Athanasios Rantos, provides greater clarity on this issue.

Background

The AG Opinion in Case C‑115/24 Österreichische Zahnärztekammer, delivered on 8 May 2025, originates from a request for a preliminary ruling from the Austrian Supreme Court. The request relates to a dispute between the Österreichische Zahnärztekammer (ÖZ), the Austrian Dental Chamber, and UJ, an Austrian dentist. UJ was contracted by Deutsche Zahnklinik GmbH (DZK), a German-based provider of remote aesthetic dental treatments, to perform dental examinations on its behalf in Austria.

The ÖZ applied for an interim injunction prohibiting UJ from carrying out dental activities in Austria on behalf of foreign companies that do not hold certain professional licences required under Austrian law.

The Opinion considers three central questions:

1. Is telemedicine limited solely to digital services, or can telemedicine include physical elements, for example exams and treatment?
2. Is a foreign provider of telemedicine services required to comply with the professional rules of the host State?
3. Are certain Austrian licensing requirements in dentistry consistent with the freedom to provide services under the Treaty of the Functioning of the European Union (TFEU)?

1. Telemedicine: digital or hybrid care?

To determine the scope of telemedicine services, the AG considered the application of Directive 2011/24, which sets out patients’ rights in cross-border healthcare. As a telemedicine service is not defined within the Directive, the AG’s interpretation of this concept was informed by a 2008 Commission Communication.

This Communication defines ‘telemedicine’ as:

‘the remote provision of healthcare services by means of [ICT] in situations where the healthcare professional and the patient … are not physically located in the same place. It requires the secure transmission of medical data and information by text, sound, image or other means necessary for the prevention and diagnosis, treatment and follow-up of patients.’

On this basis, the AG was satisfied that only services that are entirely remote and ICT-based will fall within the scope of the meaning of the term ‘telemedicine’. While the services provided by UJ could not therefore be classified as telemedicine, services provided by DZK may be considered telemedicine if they can be separated from the physical aspects of the treatment.

2. Do foreign providers of telemedicine services need to comply with host-state rules?

The EU’s legal framework on the recognition of professional qualifications, specifically Article 5(3) of Directive 2005/36, provides that a foreign service provider must follow local rules when moving to a host country. This prompted the question as to whether DZK could be considered to have ‘moved’ into Austria by providing telemedicine services through its contracted relationship with UJ. The AG emphasised that Article 5(3) is triggered only by physical movement into the host State. As DZK operated from Germany, the remote provision of its services should not therefore equate to movement into Austria, as required under the EU’s framework.

The AG also considered whether telemedicine services fall within scope of the EU’s E-Commerce Directive[1]. To do so, these services would have to qualify as information society services, which are regulated by the service provider’s own Member State. In the Opinion, it was accepted that telemedicine services would meet this definition in instances where the services are provided for payment, and are performed remotely and electronically.

Applying this analysis would mean that a foreign provider of telemedicine services would not be obliged to comply with laws of a host State unless there is physical cross-border movement, or the services involve non-ICT aspects. In this case, DZK provided services that combined remote treatment planning carried out remotely in Germany with face-to-face dental care delivered in Austria. The remote elements of DZK’s services would therefore fall within the scope of both Directive 2005/36 and the E-Commerce Directive, and as a result, would be regulated by German law alone. However, the activities of UJ could be regulated under Austrian Law, as these services are performed in-person in Austria, and cannot be considered an ISS.

3. Telemedicine and the freedom of establishment

In order to address the third question, and in line with the analysis of the first two questions, the AG reformulated this part of the preliminary reference to focus on compatibility with the principle of freedom of establishment provided for in Article 49 TFEU.

In the AG’s view, the compatibility of Austrian Law with the principle of freedom of establishment in this case depends on whether DZK is considered to be established in Austria, or whether it merely provides cross-border services.

• If the national court finds that DZK is not established in Austria, and is instead considered a cross-border service provider, these services will fall within the scope of what can be considered as telemedicine services. In this case, Austrian law would not apply to these services, and no conflict arises with the EU’s principles of free movement.
• However, if the national court finds that DZK is established in Austria through its contractual relationship with UJ, the effect of the national law must be analysed in light of freedom of establishment under Article 49 TFEU. Under this principle, any national measure which obstructs establishment could be treated as a restriction on establishment, even where this is non-discriminatory.

These restrictions may be justified in certain circumstances, where they can be justified as an appropriate and proportionate means of securing a competing public interest.

Judgment awaited

The judgment of the ECJ in this case is awaited. In the meantime, the AG’s Opinion does set out one reasoned and logical interpretation of the applicable EU law that the Court may ultimately adopt, noting that AG Opinions, although non-binding, are viewed as influential in the Court’s reasoning, and are often followed in sum or in part.

For more information and expert advice, contact a member of our Digital Health team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Directive 2000/31