A recent ruling is likely to encourage more EU-based healthcare providers to partner with health practitioners elsewhere in the EU to expand the services they offer to a wider group of patients using technology, according to experts in healthcare law.
Joanne Ellis and Rebecca Wilding of Pinsent Masons were commenting after the Court of Justice of the EU (CJEU) confirmed that companies that deliver healthcare through ‘telemedicine’ to patients in other EU countries are only ever subject to the laws in the country they are established in – not those in other countries where the related healthcare treatments are performed.
Ellis said the ruling is relevant to telemedicine providers and digital health platforms – especially those operating across EU borders or planning to expand internationally – as well as dentists, doctors and other health specialists collaborating with foreign entities or offering remote services. She said patients seeking cross-border care, as well as regulators and national health authorities, and legal and compliance teams in health tech companies, will also want to understand the judgment’s implications.
The CJEU considered the concept of ‘telemedicine’ and which rules govern it in the context of a dispute that has arisen in Austria, where a German dental care business partnered with an Austrian dentist to provide in person healthcare services to patients in Austria.
Under that arrangement, while the German company advertises invisible dental aligners to patients online and both arranges the supply of those products via another company in the same group and the treatment itself, the partner dentist will, in connection with their treatment, take the patient’s medical history, provide initial consultations, make 3D scans of the jaw, which they send to the German company, as well as carry out other necessary pre-treatments, together with carrying out other treatment at the patient’s request. The German company contracts with the patient and the Austrian dentist separately. There is no contract between the patient and the Austrian dentist.
In this case, the German company is an authorised dental care provider in Germany and the Austrian dentist is an authorised dentist in Austria. However, the Austrian Dental Chamber, which has statutory duties in Austria to represent the interests of Austrian dentists and dental practitioners, took issue with the arrangements. It applied for a court order in Austria to ban the Austrian dentist from engaging with the German company over dentistry work to be performed in Austria on the basis the German company did not have the necessary Austrian licences.
However, the Austrian Supreme Court was unclear on the extent to which the Austrian dentist could be said to be participating in dentistry activities being carried out in Austria by unauthorised foreign companies, as the Austrian Dental Chamber had claimed was the case. Among other things, it was also unsure as to how EU law applicable to telemedicine applies in the circumstances of this case. It referred a series of questions to the CJEU over the interpretation of EU law, to help it resolve the underlying dispute.
The court reflected on the fact that the concept of ‘telemedicine’ is not defined in EU legislation but determined that the term “refers to medical services which are supplied at a distance”. It “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”, according to the CJEU.
However, it held that the concept of ‘telemedicine’ can also be said to apply to cases where some health care services, in the context of complex medical treatments, are supplied to patients remotely using technology but other such services are performed in-person.
On the rules that govern such circumstances, the CJEU said that telemedicine services must be provided in accordance with the legislation of the EU country where the provider is established. In the context of the dispute at issue, it means the German company’s provision of telemedicine services to patients is governed by the laws and regulations applicable in Germany only, even though some aspects of the services patients receive are carried out in Austria.
In addition, the CJEU said, professional qualification requirements applicable to healthcare providers in the EU member state where patients reside do not apply to healthcare providers based in other EU countries where they provide those patients with telemedicine services from. It is only when the provider itself, not merely the service they offer, ‘moves’ to the country where the treatment is performed, will they be subject to the professional standards in place there.
Ellis said: “Providers can now offer services across borders with fewer regulatory hurdles, which will foster innovation and competition.”
“The ruling is a reminder to healthcare providers to check their operations comply with the laws of the country in which they are based, especially regarding licensing, data protection and medical liability,” she added.
Wilding said cross-border service agreements may need to be updated in light of the judgment: “Contracts with foreign partners should reflect the clarified jurisdictional rules and reimbursement mechanisms. Providers should further communicate clearly to both patients and staff what this ruling means for access, costs, and legal protections when receiving or delivering care across borders.”
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