Telemedicine without borders? ECJ creates new scope

Cross-border healthcare is becoming easier: the European Court of Justice has clarified that telemedicine is governed by the law of the service provider's country of origin – not that of the patient. For providers of digital health services, this means greater legal certainty and new opportunities for innovative platform models. At the same time, the situation remains exciting: national restrictions – for example in Germany – continue to set narrow limits. Those who think across borders can benefit from the new opportunities.

ECJ – C-115/24 – 11 September 2025

What happened?

A dentist based in Austria cooperated with a provider based in Germany in the context of aligner therapy (dental splints).

• The dentist examined the patients in her local practice and took photographs of their teeth, among other things.
• The dentist sent the examination results to the provider based in Germany.
• This provider drew up the treatment plan digitally, produced the respective dental splints based on the dentist's images and sent them to the patients by post.

The Austrian Dental Association filed a lawsuit. In its view, dentists practising in Austria are not allowed to cooperate with foreign companies in the treatment of patients.

The crucial legal question: Which law applies to telemedicine?

The legal questions raised here go to the heart of the increasingly frequent legal question of cross-border telemedicine in the recent past – namely, the question of which law applies to the provider: that of the patient in whose country the service is "received" ("destination country principle") or that of the country of the service provider from which the service is provided ("country of origin principle").

Relevant legal sources include

• Directive 98/34 and (EU) 2015/1535 (E-Commerce Directive)
• Directive 2005/36 (Professional Qualifications Directive)
• Directive 2011/24 (Patient Mobility Directive)

Key questions referred to the ECJ

In this context, the ECJ had to clarify four key questions, which we will summarise here:

How should the term "healthcare" be understood in the case of telemedicine?

The ECJ had to deal primarily with the question of what telemedicine means within the meaning of Article 3(d) and (e) of the Patient Mobility Directive. The main issue was whether treatments that include physical examinations in addition to digital services are also covered.

To answer this question, the ECJ evaluated Article 3(d) and (e) of the Patient Mobility Directive. These provide the following definitions:

• The Member State of treatment is the state in which the healthcare service is actually provided. In the case of telemedicine, the service is considered to be provided in the state in which the service provider is established.
• Cross-border healthcare occurs when the service is provided or prescribed in a Member State other than the patient's Member State of insurance.

The Austrian Dental Association wanted to know whether "healthcare in the field of telemedicine" only covers healthcare services provided by a provider in a Member State other than the patient's Member State of insurance exclusively remotely and only with the aid of information and communication technologies – i.e. without the simultaneous physical presence of the patient and the provider in the same place. Or whether mixed models are also covered, in which, in addition to telemedicine services, health services are also provided in the patient's Member State of insurance in the physical presence of the patient.

In the event that such mixed forms were also covered, the question also arose as to whether the services provided via telemedicine must constitute the predominant part – and according to which criteria this "predominance" would be assessed.

The ECJ clarifies: The decisive factor for the EU legal concept of telemedicine is solely that a health service is provided exclusively from a distance using information and communication technologies. The simultaneous physical presence of the patient and the service provider thus excludes the classification of the entire treatment as telemedicine – regardless of the complexity of the treatment.

On the scope of application of the country of origin principle

The ECJ also had to clarify whether the relevant provisions are to be interpreted as meaning that they

1. only concern questions of reimbursement of costs in the case of cross-border care, or
2. whether they apply comprehensively and provide for the country of origin principle for telemedicine services in principle.

The ECJ ruled that the country of origin principle applies comprehensively. In its reasoning, it referred to the recitals of the Patient Mobility Directive and the objective set out therein of facilitating access to safe, high-quality cross-border healthcare. This objective could only be achieved if the regulations went beyond simply covering issues of cost reimbursement. This was also evident from the E-Commerce Directive, which also establishes the country of origin principle for information society services – and thus for telemedicine health services.

At the same time, the ECJ emphasises that the national competences of the Member States to determine the scope of benefits covered by social security and the organisation and provision of medical care must be fully respected.

On the quality of cross-border care and the applicability of the country of destination principle

The ECJ then clarified the question of the application of the Professional Qualifications Directive to cross-border telemedicine.

If a service provider moves to another Member State (permanently) to practise their profession, they are subject to the professional, legal and administrative rules applicable in the host Member State under the provisions of the Professional Qualifications Directive, including, among other things disciplinary provisions, regulations for serious professional misconduct directly related to the protection and safety of consumers.

The ECJ makes it clear that telemedicine requires that the health service be provided across borders without a change of location. If the patient travels to the Member State of the health service provider, or if the health service provider travels to the Member State of the patient, the ECJ considers that this does not constitute telemedicine within the meaning of the Directive. The ECJ emphasises that the healthcare service "changes location" – precisely because of its cross-border nature. The professional qualifications line is therefore not applicable to service providers who provide healthcare services without physically changing location themselves.

Does the freedom to provide services under Article 56 et seq. TFEU conflict with national regulations of a Member State that primarily provide for the direct personal exercise of a profession?

Once again, the ECJ consistently states that national (Austrian) regulations are not applicable to service providers operating in another Member State who do not physically travel to the Member State to provide their services. Special features resulting from the fact that some of the services were provided personally to patients on site are not examined in detail here, as this does not constitute telemedicine.

What does this mean for the telemedicine market?

The country of origin principle has been significantly strengthened – a real gain in legal certainty for the entire telemedicine and digital health market. For providers based in Germany, however, not much will change: the narrow scope for the provision of telemedicine services within Germany will remain effective in terms of permissible discrimination against domestic providers. Countries with less stringent requirements than Germany, for example, could thus continue to establish themselves as attractive locations for the development and expansion of telemedicine platform models.

Who is this relevant for?

Basically, for all healthcare professionals. This means not only dentists, but also all doctors, psychotherapists, pharmacists and other regulated professions. A regulated profession in this sense is a profession in which access or practice is subject to certain conditions. As a rule, this means that you may only practise this profession or use a protected professional title if you have the prescribed training or qualifications. This also includes physiotherapists, speech therapists, medical technical assistants, paramedics and nursing professionals.

Looking ahead: the next phase of telemedicine in the EU

Following the current ruling by the ECJ, the future of cross-border telemedicine remains exciting and dynamic. While the country of origin principle provides greater legal certainty, it remains to be seen how German legislators and other EU member states will respond to the new scope for action. The debate on national restrictions, for example on permissible care models and reimbursement issues, is likely to intensify – as is competition between different regulatory locations within Europe.

Those who take current developments into account at an early stage will not only be able to stay ahead of the curve, but also actively shape the further development of digital healthcare. It is worth carefully reviewing your own business model: Which opportunities remain untapped? Which new opportunities can be strategically exploited? Now is the right time to set the course for the future. Feel free to contact us.