1 This request for a preliminary ruling concerns the interpretation of Article 56 TFEU, of Article 2(n), Article 3(d) and (e), Article 4(1)(a) and Article 7 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 (OJ 2011 L 88, p. 45), 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’) (OJ 2000 L 178, p. 1), and of Article 5(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).
2 The request has been made in proceedings between UJ, a dentist, and the Österreichische Zahnärztekammer (Austrian Dental Chamber), concerning an application for interim relief made by the Austrian Dental Chamber, by which it is seeking a provisional injunction requiring UJ to cease participating, directly or indirectly, in activities in the field of dentistry carried out in Austria by foreign companies that do not have the authorisations required under Austrian law.
3 Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 (OJ 2012 L 316, p. 12) (‘Directive 98/34’), was repealed by Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1), which entered into force on 7 October 2015.
4 Article 1(1) of Directive 2015/1535 provides: ‘For the purposes of this Directive, the following definitions apply: …
5 Under the second paragraph of Article 10 of that directive: ‘References to [Directive 98/34] shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.’
6 It follows from that table, first, that the first subparagraph of point (b) of Article 1 of Directive 2015/1535 corresponds to the first subparagraph of point 2 of the first paragraph of Article 1 of Directive 98/34 and, second, that Annex I to Directive 2015/1535 corresponds to Annex V to Directive 98/34.
7 Annex I to Directive 2015/1535 is entitled ‘Indicative list of services not covered by the second subparagraph of point (b) of Article 1(1)’.
8 Point 1 of that annex, entitled ‘Services not provided “at a distance”’, states: ‘Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices: …’
9 Point 2 of that annex, entitled ‘Services not provided “by electronic means”’, states: ‘… - services which are not provided via electronic processing/inventory systems:
10 Recital 18 of Directive 2000/31 states: ‘Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activities such as the delivery of goods as such or the provision of services off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service; … the use of electronic mail or equivalent individual communications for instance by natural persons acting outside their trade, business or profession including their use for the conclusion of contracts between such persons is not an information society service; the contractual relationship between an employee and his employer is not an information society service; activities which by their very nature cannot be carried out at a distance and by electronic means, such as the statutory auditing of company accounts or medical advice requiring the physical examination of a patient are not information society services.’
11 Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purpose of this Directive, the following terms shall bear the following meanings:
12 Article 3 of that directive, entitled ‘Internal market’, provides, in paragraph 1 thereof: ‘Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.’
13 Recitals 4 and 5 of Directive 2005/36 state:
14 Article 2 of that directive, entitled ‘Scope’, provides, in paragraph 1 thereof: ‘This Directive shall apply to all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications, on either a self-employed or employed basis.’
15 Article 5 of that directive, entitled ‘Principle of the free provision of services’, provides, in paragraphs 2 and 3 thereof: ‘2. The provisions of this title shall only apply where the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, the profession referred to in paragraph 1. The temporary and occasional nature of the provision of services shall be assessed case by case, in particular in relation to its duration, its frequency, its regularity and its continuity. 3. Where a service provider moves, he shall be subject to professional rules of a professional, statutory or administrative nature which are directly linked to professional qualifications, such as the definition of the profession, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety, as well as disciplinary provisions which are applicable in the host Member State to professionals who pursue the same profession in that Member State.’
16 Recital 10 of Directive 2011/24 states: ‘This Directive aims to establish rules for facilitating access to safe and high-quality cross-border healthcare in the Union and to ensure patient mobility in accordance with the principles established by the Court of Justice and to promote cooperation on healthcare between Member States, whilst fully respecting the responsibilities of the Member States for the definition of social security benefits relating to health and for the organisation and delivery of healthcare and medical care and social security benefits, in particular for sickness.’
17 That directive comprises five chapters, namely Chapter I, entitled ‘General provisions’, which contains Articles 1 to 3, Chapter II, entitled ‘Responsibilities of Member States with regard to cross-border health care’, which contains Articles 4 to 6, Chapter III, entitled ‘Reimbursement of costs of cross-border healthcare’, which contains Articles 7 to 9, Chapter IV, entitled ‘Cooperation in healthcare’, which contains Articles 10 to 15, and, lastly, Chapter V, entitled ‘Implementing and final provisions’, which contains Articles 16 to 23.
18 Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraphs 1 and 2 thereof: ‘1. This Directive provides rules for facilitating the access to safe and high-quality cross-border healthcare and promotes cooperation on healthcare between Member States, in full respect of national competencies in organising and delivering healthcare. This Directive also aims at clarifying its relationship with the existing framework on the coordination of social security systems, Regulation (EC) No 883/2004, with a view to application of patients’ rights. 2. This Directive shall apply to the provision of healthcare to patients, regardless of how it is organised, delivered and financed.’
19 Article 2 of that directive, entitled ‘Relationship with other Union provisions’, provides: ‘This Directive shall apply without prejudice to: … (e) [Directive 2000/31]; … (n) [Directive 2005/36]; …’
20 Article 3 of Directive 2011/24, entitled ‘Definitions’, is worded as follows: ‘For the purposes of this Directive, the following definitions shall apply:
21 Article 4 of that directive, entitled ‘Responsibilities of the Member State of treatment’, provides, in paragraph 1 thereof: ‘Taking into account the principles of universality, access to good quality care, equity and solidarity, cross-border healthcare shall be provided in accordance with:
22 Article 7 of that directive, entitled ‘General principles for reimbursement of costs’, provides, in paragraph 7 thereof: ‘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, criteria of eligibility and regulatory and administrative formalities, whether set at a local, regional or national level, as it would impose if this healthcare were provided in its territory. This may include an assessment by a health professional or healthcare administrator providing services for the statutory social security system or national health system of the Member State of affiliation, such as the general practitioner or primary care practitioner with whom the patient is registered, if this is necessary for determining the individual patient’s entitlement to healthcare. However, no conditions, criteria of eligibility and regulatory and administrative formalities imposed according to this paragraph may be discriminatory or constitute an obstacle to the free movement of patients, services or goods, unless it is objectively justified by planning requirements relating to the object of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources.’
23 It is apparent from the request for a preliminary ruling that neither the EU-Patientenmobilitätsgesetz (Law on patient mobility in the European Union) (BGBl. I, 32/2014), transposing Directive 2011/24, nor the Zahnärztegesetz (Law on Dentists) (BGBl. I, 126/2005), in the version applicable to the dispute in the main proceedings (‘the ZÄG’), contains any provisions relating to telemedicine services.
24 Under Paragraph 3(1) of the ZÄG, the profession of dentist may be practised only in accordance with that federal law.
25 Under Paragraph 4(2) of that law, the profession of dentist encompasses any activity based on scientific expertise in dentistry, including complementary and alternative therapies, which is carried out directly on humans or indirectly for humans.
26 In accordance with Paragraph 4(3) of that law, the scope of activities reserved to dentists includes, inter alia, examination for the presence or absence of diseases and anomalies of the teeth and the treatment thereof, including cosmetic and aesthetic dental procedures, in so far as they require a dental examination and diagnosis, as well as the prescription of medication, remedies and dental diagnostic aids.
27 Under Paragraphs 24 to 26 of the ZÄG, dentists must practise their profession personally and directly, where appropriate in collaboration with other dentists or other health professionals, in particular in the form of practice- and equipment-sharing groups or group practices. Furthermore, they may make use of assistants in practising their profession provided that those assistants act in accordance with their precise instructions and under their constant supervision. While a group practice may be operated in the legal form of a limited liability company, that is nevertheless subject to the requirement, inter alia, that all of the shareholders must be dentists who are authorised to practise that profession independently.
28 Paragraph 31 of that law concerns the freedom to provide services and reads as follows:
29 It is apparent from the order for reference that the national courts have held, in competition law cases, that Paragraph 31 of the ZÄG concerns only natural persons authorised to practise the profession and not limited liability companies, a fortiori where their shareholder structure does not comply with Paragraph 26 of the ZÄG.
30 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.
31 UJ is a dentist established in Austria who is authorised, in the territory of that Member State, to treat patients under treatment contracts concluded with them.
32 Urban Technology GmbH and DZK Deutsche Zahnklinik GmbH are established in Germany and belong to a group of companies that is active in dental medicine and operates worldwide.
33 Urban Technology’s object is to ‘provide services in the field of lifestyle products for end customers’. It 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, established 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.
34 DZK Deutsche Zahnklinik, whose shareholders are not dentists, has a licence and the other authorisations necessary to operate a dental care centre in Germany, called a ‘dental clinic’, in which the patients are treated by dentists, in accordance with the German law applicable to that type of establishment.
35 Only DZK Deutsche Zahnklinik concludes treatment contracts with the patients; such a contract covers all services relating to the therapy with the dental aligners from the DrSmile brand. DZK Deutsche Zahnklinik obtains the dental splints from Urban Technology, which, in turn, orders them from third parties. Follow-up is provided via an application belonging to DZK Deutsche Zahnklinik; patients regularly send it images of their teeth via that application. DZK Deutsche Zahnklinik has a contractual relationship with the partner dentist and remunerates that dentist for the services provided in the framework of the treatment in question.
36 The Austrian Dental Chamber brought an action before the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria), seeking an injunction against UJ, together with an application for interim relief. By that application, it sought to prohibit UJ, by way of a preliminary injunction until such time as the judgment ruling on the action becomes final, from participating, directly or indirectly, in activities in the field of dentistry carried out in Austria by foreign companies that do not have the authorisations required under Austrian law, for example by taking impressions in the case of dental misalignments, including digitally by means of an intra-oral scanning device, on behalf of those companies.
37 UJ claimed that DZK Deutsche Zahnklinik is a private dental care establishment authorised in Germany and that both its telemedicine activities and the division of work in the framework of the orthodontic treatment at issue are lawful. Furthermore, UJ asserted that she carries out her activities directly, personally and independently.
38 The Landesgericht Klagenfurt (Regional Court, Klagenfurt) dismissed the application for interim relief. It held, first, that UJ does not participate in the activities in the field of dentistry pursued by Urban Technology and DZK Deutsche Zahnklinik; second, that there are two treatment contracts which must be regarded as being separate from one another; third, that, accordingly, UJ is not to be classified as an agent; and, fourth, that, therefore, she also does not participate, in Austria, in activities in the field of dentistry carried out by a foreign person.
39 Hearing the case on appeal, the Oberlandesgericht Graz (Higher Regional Court, Graz, Austria) upheld, for the most part, the application for interim relief. It held, in particular, first, that UJ acts as an agent of DZK Deutsche Zahnklinik in the framework of the treatment contracts concluded between DZK Deutsche Zahnklinik and the patients; second, that DZK Deutsche Zahnklinik is not authorised to provide dental services in Austria; third, that DZK Deutsche Zahnklinik’s treatment services in Austria, supplied through UJ who acts as an agent, are provided directly and without the use of any information and communication technologies (ICT); fourth, that UJ therefore participates in activities in the field of dentistry which are carried out in Austria by a foreign company that is not authorised to practise the profession of dentist under the ZÄG and that does not have an authorisation to operate a healthcare establishment under Austrian law; fifth, that UJ therefore infringed the rules on cooperation laid down in Paragraph 24 of the ZÄG and, furthermore, took part, in her capacity as agent, in a foreign company’s interference in a reserved professional field under Paragraph 3 and Paragraph 4(3) of the ZÄG.
40 UJ brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court, Austria), which is the referring court, against the judgment of the Oberlandesgericht Graz (Higher Regional Court, Graz).
41 In the first place, the referring court is uncertain whether UJ actually participates in activities in the field of dentistry carried out in Austria by foreign companies.
42 That court points out that there is a single treatment contract between the patient and DZK Deutsche Zahnklinik, with the result that only DZK Deutsche Zahnklinik is, in the legal sense, providing the service. For her part, UJ acts only in the framework of her contractual relationship with DZK Deutsche Zahnklinik, as its agent. The referring court is consequently uncertain as regards the place of provision of the dental services at issue.
43 That court thus seeks to establish whether Article 3(d) of Directive 2011/24, pursuant to which, in the case of telemedicine, healthcare is considered to be provided in the Member State where the healthcare provider is established, is intended to apply solely for the purposes of reimbursement of costs, within the meaning of Article 7 of that directive, or whether it lays down a general country-of-origin principle in respect of telemedicine services; it further seeks to establish whether that principle may be inferred from Directive 2000/31.
44 In the second place, in order to determine whether Directive 2011/24 applies in the present case, the referring court is uncertain whether the reference, in Article 3(d) of that directive, to healthcare provided in the case of telemedicine concerns exclusively specific medical services provided across borders with the support of ICT, or whether it concerns an entire treatment contract which might include physical examinations in the patient’s Member State of residence, and, in such a case, whether the ICT-supported services must predominate in order for the healthcare to be regarded as being provided in the case of telemedicine in accordance with that provision. Furthermore, the referring court is uncertain whether, where those two types of services are connected, as they are in the present case, they may be regarded, as a whole, as cross-border healthcare within the meaning of Article 3(d) and (e) of Directive 2011/24.
45 In that regard, the referring court notes that the Court of Justice has previously held that an intermediation service can be classified as an ‘information society service’, but that cannot be the case if it appears that that intermediation service forms an integral part of an overall service whose main component is a service coming under another legal classification (judgment of 19 December 2019, Airbnb Ireland, C‑390/18, EU:C:2019:1112, paragraph 50).
46 In the third place, the referring court is uncertain as regards the law applicable to telemedicine. In that regard, 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, pursuant to 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, is relevant. The relationship between Directive 2000/31, in particular Article 2(h)(ii) and recital 18 thereof, Directive 2005/36, in particular Article 5 and recital 4 thereof, and Directive 2011/24, in particular Article 2(n), Article 3(d) and Article 4(1)(a) thereof, is also relevant.
47 The referring court states that, in a different context, the Court of Justice has previously ruled that commercial assistance in tax matters which is provided across borders without the persons active in that respect travelling to another Member State does not fall within Article 5 of Directive 2005/36, because that article applies only where the service provider moves to the territory of the host Member State (judgment of 17 December 2015, X-Steuerberatungsgesellschaft, C‑342/14, EU:C:2015:827, paragraphs 34 and 35).
48 According to the referring court, as regards healthcare, compliance with the rules of a professional nature of the patient’s State of residence might be necessary in order to protect that patient.
49 In the fourth place, the referring court is uncertain, in the event that it should be considered that the dental services supplied by UJ are provided in Austria, 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.
50 The referring court has doubts as to whether the provisions of the ZÄG, which require that the profession must primarily be practised directly and personally and state that ‘EEA nationals’ are free to provide services only ‘temporarily’, are consistent with the freedom to provide services laid down in Article 56 TFEU et seq., in particular in the situation at issue in the main proceedings. The referring court points out, in that regard, that the foreign dentist provides, on a permanent basis, services in the framework of a single treatment contract, partly from abroad, supported by ICT, and partly in Austria, using, as an agent, a dentist authorised to practise that profession in Austria.
51 As regards DZK Deutsche Zahnklinik, the referring court is uncertain whether the application to DZK Deutsche Zahnklinik of the provisions relating to group practices in Paragraph 26 of the ZÄG, according to which the shareholders may only be dentists, is also contrary to the freedom to provide services. That court refers, in that regard, to the case-law according to which Member States are permitted to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health or the survival of the population (judgments of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 51, and of 13 May 2003, Müller-Fauré and van Riet, C‑385/99, EU:C:2003:270, paragraph 67). According to the referring court, it is not necessarily guaranteed that natural persons have a higher degree of medical competence than legal persons.
52 In those circumstances, the Oberster Gerichtshof (Supreme Court, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
53 The Republic of Austria and the Austrian Dental Chamber contend that the questions referred for a preliminary ruling are inadmissible.
54 First of all, they claim that the first to third questions are hypothetical since they are based on the incorrect premiss that the dental treatment at issue in the main proceedings may be classified as telemedicine. In their submission, in actual fact, telemedicine involves the provision of a health service at a distance. In the present case, the core part of the medical treatment is carried out by the partner dentist, with the patient being present. Consequently, according to them, the present case does not concern any act involving telemedicine, with the result that Directives 2011/24, 2000/31 and 2005/36 do not apply.
55 Next, according to the Republic of Austria and the Austrian Dental Chamber, the third question is also hypothetical on the ground that Directive 2005/36 does not apply to legal persons, such as DZK Deutsche Zahnklinik.
56 Lastly, in their submission, the fourth question does not meet the requirements of clarity and precision laid down in Article 94 of the Rules of Procedure of the Court of Justice.
57 In that regard, it is sufficient to observe, first, that, where, as in the present case, it is not obvious that the interpretation of an EU provision bears no relation to the facts of the main action or its purpose, the objection alleging the inapplicability of that provision to the case in the main action does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions (judgment of 5 June 2025, Elektrorazpredelitelni mrezhi Zapad, C‑310/24, EU:C:2025:406, paragraph 46 and the case-law cited).
58 Second, it is clear from the request for a preliminary ruling that the fourth question, which concerns the interpretation of Article 56 TFEU, is linked to the fact that the referring court has not ruled out the possibility that Directives 2011/24, 2000/31 and 2005/36 might not be applicable in the present case. Thus, according to that court, it is conceivable that DZK Deutsche Zahnklinik is providing cross-border health services, which are liable to come within the scope of that article.
59 Consequently, the questions referred for a preliminary ruling are admissible.
60 By its second question, which it is appropriate to address first, the referring court asks, in essence, whether Article 3(d) and (e) of Directive 2011/24 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 ICT, 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, or as meaning that that concept can correspond to a complex medical treatment that includes, in addition to healthcare provided at a distance via ICT, healthcare provided in the Member State of affiliation by another provider, established in that State, with the patient being physically present. In that second case, the referring court seeks to ascertain whether the share of the healthcare provided via ICT must be predominant and, as the case may be, the criteria on the basis of which that predominance must be assessed.
61 It must be noted at the outset that, first, Article 3(d) of Directive 2011/24 merely provides that the Member State of treatment is defined as the Member State on whose territory healthcare is actually provided to the patient and that, in the case of telemedicine, healthcare is considered to be provided in the Member State where the healthcare provider is established. Second, in accordance with Article 3(e) of that directive, cross-border healthcare is healthcare provided or prescribed in a Member State other than the Member State of affiliation.
62 Given that neither Article 3(d) and (e) nor any other provision of that directive defines the term ‘telemedicine’ or contains any reference to the law of the Member States as regards such a definition, that term amounts to an autonomous concept of EU law. Thus, it must be interpreted in accordance with its usual meaning in everyday language, while also taking into consideration the context in which it is used and the objectives pursued by the rules of which it is part (judgment of 30 April 2025, Galte, C‑63/24, EU:C:2025:292, paragraph 29 and the case-law cited). Furthermore, the origins of a provision of EU law may also provide information relevant to its interpretation (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 47 and the case-law cited).
63 As regards the literal interpretation, the usual meaning of the term ‘telemedicine’, by its very etymology, refers to medical services which are supplied at a distance, the prefix ‘tele’ conveying precisely the idea of distance. Likewise, as is clear from the wording of Article 3(d) and (e) of Directive 2011/24, in order for healthcare provided in the case of telemedicine to be covered by the concept of cross-border healthcare, it is necessary for that healthcare to be provided or prescribed in a Member State other than the Member State of affiliation.
64 As regards the contextual interpretation, it must be noted, first, that the first sentence of Article 3(d) of Directive 2011/24 lays down the general rule that applies, in principle, to all healthcare, that is to say, that the Member State of treatment is that on whose territory the healthcare is actually provided. The second sentence of Article 3(d), according to which, in the case of telemedicine, healthcare is considered to be provided in the Member State where the healthcare provider is established, therefore lays down an exception to that general rule.
65 According to settled case-law, exceptions are to be interpreted strictly so that general rules are not negated (judgment of 30 April 2025, Generalstaatsanwaltschaft Frankfurt am Main (Export of cash to Russia), C‑246/24, EU:C:2025:295, paragraph 27 and the case-law cited).
66 It follows that that second sentence cannot be interpreted as meaning that healthcare other than that provided through telemedicine may be covered by that exception. Accordingly, 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.
67 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.
68 Thus, the concept of healthcare is liable to cover a broad range of health services. While those services contribute, in principle, to the same therapeutic purpose, each of them may be provided by different professionals or for specific purposes in the framework of the same healthcare treatment, where that treatment amounts to a complex medical treatment. As the case may be, some of those services may be provided or prescribed in a Member State other than the Member State of affiliation.
69 Consequently, a health service provided in the context of telemedicine is liable to amount to cross-border healthcare, within the meaning of Article 3(d) and (e) of Directive 2011/24, even though, because of the distinct arrangements for providing such a service, it is subject to specific rules, in particular as regards the determination of the law applicable to the provision thereof. Those rules may differ from those applicable to other health services included in the same complex medical treatment.
70 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. As the Advocate General observed, in essence, in point 56 of his Opinion, the word ‘including’ clearly implies that healthcare provided or prescribed through means of telemedicine may come within the scope of ‘cross-border healthcare’, defined in Article 3(e) of that directive.
71 Fourth, as the Commission has submitted in its written observations, 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’.
72 It is important to point out that Annex I to Directive 2015/1535, concerning the ‘indicative list of services not covered by the second subparagraph of point (b) of Article 1(1)’ of that directive, includes in point 1 as ‘services not provided “at a distance”’ ‘services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices’, and, in particular, ‘medical examinations or treatment at a doctor’s surgery using electronic equipment where the patient is physically present’. Likewise, recital 18 of Directive 2000/31 states that ‘activities which by their very nature cannot be carried out at a distance and by electronic means, such as … medical advice requiring the physical examination of a patient are not information society services’.
73 Thus, cross-border health services supplied by a provider to a patient, where both are simultaneously present in the same location, even if those services involve the use of ICT, cannot be regarded as information society services and cannot therefore be covered by the concept of telemedicine for the purposes of Article 3(d) of Directive 2011/24.
74 By contrast, health services which are actually supplied at a distance, that is to say, without the provider and the patient being simultaneously physically present in the same location, via ICT, are liable to be covered by the concept of information society service and therefore by that of ‘telemedicine’, even where they are provided in the framework of a complex medical treatment that includes also healthcare provided by a provider who is physically present in the same place as the patient.
75 That analysis is not called into question by the case-law to which the referring court has pointed and which has been recalled in paragraph 45 above.
76 It follows from the case-law, first, that a service whose purpose is to connect customers with providers of another service of a different nature and which fulfils all the conditions laid down in Article 1(1)(b) of Directive 2015/1535 must be classified as an ‘information society service’ where such a service is distinct from the service of a different nature supplied by those service providers. Second, the situation must be different if it is apparent that that service which connects sellers with customers forms an integral part of an overall service, the main element of which is subject to a legal classification other than that of ‘information society service’ (see, to that effect, judgment of 29 February 2024, Doctipharma, C‑606/21, EU:C:2024:179, paragraph 35 and the case-law cited).
77 That case-law concerns services provided via online platforms that are necessarily linked to other services together with which they could, depending on their degree of integration, form a single overall service.
78 By contrast, each health service, including where it forms, together with other health services, a complex medical treatment, is independent, inasmuch as it requires specific professional skills and meets distinct technical requirements.
79 In the present case, it is apparent from the file before the Court that the orthodontic treatment from the DrSmile brand is complex in nature. It comprises several health services, which, while sharing the same therapeutic purpose, are not integrated to such an extent that they form a single overall service.
80 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 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.
81 These considerations are borne out by the judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 32 to 40), in which the Court specifically carried out an examination of the provision of a complex health service consisting of the sale via the Internet and the supply of contact lenses, preceded by medical advice. On that occasion, the Court drew a distinction between the sale via the Internet and the supply of the contact lenses, taking the view that Directive 2000/31 applied only to the sale and not to the supply. In addition, the Court stated that that directive does not apply, in accordance with recital 18 thereof, to medical advice requiring a physical examination of the patient, which cannot be regarded as an information society service.
82 As regards the teleological interpretation, it should be recalled that Directive 2011/24, in accordance with the first sentence of Article 1(1) thereof, read in the light of recital 10 thereof, seeks, in particular, to facilitate the access to safe and high-quality cross-border healthcare and promotes cooperation on healthcare between Member States, in full respect of national competencies in organising and delivering healthcare.
83 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.
84 It is therefore by reason of the nature and specific features of that medical practice - relating to the cross-border character of the healthcare, the provision at a distance, that is to say, without the health professional and the patient being simultaneously present in the same location, and the use of ICT - that the EU legislature provided for derogating rules concerning the determination of the Member State of treatment and the law applicable to a practice of that kind.
85 Not only are such derogating rules not warranted for the provision of healthcare that requires the simultaneous physical presence of the provider and the patient, but they are also liable to conflict with the objective of Directive 2011/24, referred to in paragraph 82 above, and with Article 168 TFEU, which, together with Article 114 TFEU, constitutes the legal basis for that directive. It must be recalled, in that regard, that Article 168(1) and (7) TFEU lays down the general objective of maintaining a high level of health protection while providing for the necessary respect for the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and care.
86 As the Commission correctly claims, 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.
87 As regards the origins of Article 3(d) and (e) of Directive 2011/24, it must be recalled, first of all, that the Communication of 4 November 2008 from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on telemedicine for the benefit of patients, healthcare systems and society (COM(2008) 689 final), defines ‘telemedicine’ as the ‘provision of healthcare services, through use of ICT, in situations where the health professional and the patient (or two health professionals) are not in the same location. It involves secure transmission of medical data and information, through text, sound, images or other forms needed for the prevention, diagnosis, treatment and follow-up of patients.’
88 Next, as the Advocate General observed in point 53 of his Opinion, that communication is relevant for the purpose of assessing the meaning of the term ‘telemedicine’ that the Commission used in the proposal for a Directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare of 2 July 2008 (COM(2008) 414 final), which refers to that communication. In that proposal, the Commission stated that one of the modes of supply of ‘cross-border healthcare’ was ‘cross-border provision of healthcare (i.e.: delivery of service from the territory of one Member State into the territory of another); such as telemedicine services, remote diagnosis and prescription, laboratory services’. According to that proposal, that mode of supply was distinct from the three other modes of supply of cross-border healthcare, namely use of healthcare abroad, the permanent presence of a healthcare provider in another Member State, and the temporary presence of the provider in the Member State of the patient in order to provide services.
89 Lastly, as the Advocate General observed in point 54 of his Opinion, that understanding of the concept of ‘telemedicine’ was not challenged during the legislative process.
90 It follows that, in the context of Directive 2011/24, the decisive aspect of the concept of ‘telemedicine’, according to the understanding of that concept intended by the EU legislature, lies in the fact that the health service is supplied, via ICT, to a patient by a healthcare provider established in a Member State other than the Member State of affiliation, at a distance and therefore without that patient and that provider being simultaneously physically present in the same location.
91 Any provision of a health service where those persons are simultaneously physically present in the same location is therefore not covered by that concept, regardless of the fact that that service is provided in the framework of a complex medical treatment that includes the provision of health services of a different nature and according to separate arrangements.
92 In those circumstances, the assessment as to whether one or other of those services making up that treatment is predominant is irrelevant for the purposes of the legal classification of each health service in the light of the determination of the Member State of treatment in accordance with Article 3(d) of Directive 2011/24.
93 In the light of the foregoing, the answer to the second question is that Article 3(d) and (e) of Directive 2011/24 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 ICT, 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.
94 By its first question, the referring court asks, in essence, first, whether Article 3(d) of Directive 2011/24 must be interpreted as applying to all the fields governed by that directive or only to the reimbursement of the costs of cross-border healthcare referred to in Article 7 of that directive and, second, whether Article 3(d) of Directive 2011/24 and Article 3(1) of Directive 2000/31 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.
95 In the first place, it must be noted, as has been pointed out in paragraph 82 above, that, in accordance with the first sentence of Article 1(1) of Directive 2011/24, read in conjunction with recital 10 thereof, that directive seeks to facilitate the access to safe and high-quality cross-border healthcare in the European Union, to ensure patient mobility, in accordance with the principles established by the Court of Justice, and to promote cooperation on healthcare between Member States, whilst fully respecting the responsibilities of the Member States for the definition of social security benefits relating to health and for the organisation and delivery of healthcare and medical care and social security benefits, in particular for sickness.
96 Furthermore, it follows from the very structure of that directive, as described in paragraph 17 above, that, in order to meet the objectives referred to in the preceding paragraph of the present judgment, that directive is not limited to laying down rules on the reimbursement of the costs of cross-border healthcare.
97 It is true that Chapter III of that directive does in fact lay down rules in that area. Nevertheless, Chapter II of Directive 2011/24 sets out rules concerning the responsibilities of Member States with regard to cross-border healthcare. Chapter II includes, first, Article 4(1) of that directive, pursuant to which cross-border healthcare is to be provided in accordance with the legislation of the Member State of treatment, standards and guidelines on quality and safety laid down by that Member State, and EU legislation on safety standards, and, second, Article 5 of that directive, pursuant to which the Member State of affiliation must not only ensure that the cost of cross-border healthcare is reimbursed in accordance with Chapter III of that directive, but also, in particular, guarantee patients’ rights with regard to medical follow-up and access to medical records.
98 Likewise, Chapter IV of Directive 2011/24 lays down rules concerning cooperation in healthcare, those rules not being limited to the cooperation necessary to ensure the reimbursement of the costs of healthcare.
99 It follows that the scope of Directive 2011/24 and therefore the scope of Article 3(d) thereof is not limited to the reimbursement of the costs of cross-border healthcare.
100 In the second place, it follows from the wording of Article 4(1) of Directive 2011/24 that, as recalled in paragraph 97 above, cross-border healthcare is to be provided in accordance with the legislation of the Member State of treatment, standards and guidelines on quality and safety laid down by that Member State, and EU legislation on safety standards.
101 Thus, further to EU legislation on safety standards, the only national legislation and national standards and guidelines on quality and safety with which the provision of healthcare must comply, under Directive 2011/24, are those of the Member State of treatment as defined in Article 3(d) of that directive.
102 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.
103 Furthermore, it must be noted that Article 2(e) of Directive 2011/24 states that that directive is to apply without prejudice to Directive 2000/31. Since a telemedicine service may be covered by the concept of ‘information society service’ within the meaning of Article 2(a) of Directive 2000/31, it comes within the scope of that directive.
104 Article 3 of Directive 2000/31 states that the information society services provided by a service provider established in a Member State are to comply with the national provisions applicable in that Member State which fall within the coordinated field.
105 In accordance with Article 2(h) of that directive, that coordinated field includes requirements concerning, inter alia, qualifications or authorisations for the taking up of the activity of an information society service.
106 Consequently, as regards the provision of a health service in the case of telemedicine, both Directive 2011/24 and Directive 2000/31, as regards their respective areas of application, provide that the legislation of the Member State where the provider is established is to apply to the provision of that service.
107 In the light of those considerations, the answer to the first question is that, first, 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 and, second, that Article 3(d) of Directive 2011/24 and Article 3(1) of Directive 2000/31 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.
108 By its third question, the referring court asks, in essence, whether Article 5 of Directive 2005/36 must be interpreted as meaning that that directive applies, first, to a provider of cross-border healthcare in the case of telemedicine and, second, to a provider, established in a Member State, that, without moving, has a provider established in another Member State provide healthcare in the physical presence of the patient residing in that second Member State.
109 As regards the first part of that question, it must be recalled that Article 5(2) of Directive 2005/36 expressly states that the provisions of Title II of that directive relating to the freedom to provide services, including Article 5 thereof, are to apply only where the service provider moves to the territory of the host Member State for the purpose of pursuing a profession on a temporary and occasional basis.
110 As is apparent from paragraph 90 above, the concept of ‘telemedicine’, as referred to in Directive 2011/24, covers any health service which is provided, exclusively via ICT, to a patient by a healthcare provider established in a Member State other than the Member State of affiliation, at a distance and therefore without that patient and that provider being simultaneously physically present in the same location.
111 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’.
112 By the second part of the third question, the referring court asks whether it cannot be considered that a healthcare provider moves to the territory of the host Member State if, in that host Member State, that provider is providing healthcare via another provider, who is established in that Member State and is in direct physical contact with the patient, on the basis of the terms of a contract concluded between those two providers.
113 It is sufficient to note in that regard that, in accordance with Article 3(g) of Directive 2011/24, a healthcare provider is any natural or legal person or any other entity legally providing healthcare on the territory of a Member State. Under Article 3(a) of that directive, healthcare means health services provided by health professionals, that is to say, within the meaning of Article 3(f) of that directive and in so far as relevant in the present case, a doctor of medicine or dental practitioner but also a person considered to be a health professional according to the legislation of the Member State of treatment.
114 First, given that in the present case Austria is the State of treatment as regards the dental services supplied in person, DZK Deutsche Zahnklinik cannot be regarded as the healthcare provider in that Member State, since it is not a health professional in accordance with the provisions of the ZÄG and, in any event, is not authorised to provide healthcare in that State.
115 Second, in so far as healthcare is provided by UJ, it must be noted, in the first place, that UJ, who is authorised to practise the profession of dentist in Austria, is, for the very fact of providing that care lawfully, a health professional who may be regarded as the provider of that healthcare. The fact that the patient has not concluded any contract with UJ and that, therefore, that patient is not required to remunerate her directly, since that healthcare forms part of a complex medical treatment under a contract concluded between that patient and an entity established in another Member State, cannot be relevant for the purposes of the classification of that professional as a healthcare provider.
116 In the second place, it would be artificial to consider that a health service provided in person by one health professional, in this case UJ, in the Member State where that professional is established, is in fact provided by an entity, in the present case DZK Deutsche Zahnklinik, established in another Member State, solely owing to the terms of the contract concluded between that professional and that entity, and that it would consequently have to be concluded that that entity moved in order physically to provide that care.
117 In the third place, the fact that the provider practising in the patient’s Member State of residence may have acted on behalf of the health professional established in another Member State does not permit the inference that the latter has, for that reason alone, moved to the first Member State (see, to that effect, judgment of 17 December 2015, X-Steuerberatungsgesellschaft, C‑342/14, EU:C:2015:827, paragraphs 34 and 35).
118 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.
119 By its fourth question, the referring court seeks to ascertain, in essence, whether Article 56 TFEU precludes legislation of a Member State which provides for the profession of dentist primarily to be practised personally and directly and which envisages the possibility, for EEA nationals, of practising that profession in that Member State only temporarily.
120 In view of the answers given to the first to third questions, it must be noted, as regards, in the first place, the healthcare provided by DZK Deutsche Zahnklinik, that, first, telemedicine healthcare comes within the scope of Directive 2011/24, with the result that the Austrian national legislation referred to in the fourth question does not apply to it. Second, as follows from paragraphs 114 to 117 above, 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.
121 In the second place, as regards the healthcare provided in person by UJ, although that legislation is applicable to her as the provider of that care, it is apparent from the file before the Court that there is no cross-border aspect characterising the provision of that care, with the result that Article 56 TFEU does not apply to it.
122 In those circumstances, there is no need to answer the fourth question.
123 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 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 2. Article 3(d) of Directive 2011/24 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’), 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