Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 13 February 2024 – UJ v Österreichische Zahnärztekammer
(Case C-115/24, Österreichische Zahnärztekammer)
Language of the case: German
Referring court
Oberster Gerichtshof
Parties to the main proceedings
Appellant on a point of law: UJ
Respondent in the appeal on a point of law: Österreichische Zahnärztekammer
Third party intervener: Urban Technology GmbH
Questions referred
1.1. Does the scope of Article 3(d) of Directive 2011/24/EU 1 of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (Patient Mobility Directive), under which, in the case of telemedicine, healthcare is considered to be provided in the Member State where the healthcare provider is established, extend only to the reimbursement of costs within the meaning of Article 7 thereof?
1.2. If the answer to Question 1.1. is in the negative, does Article 3(d) of the Patient Mobility Directive (Directive 2011/24/EU) lay down a general country-of-origin principle in respect of telemedicine services?
1.3. Does Directive 2000/31/EC 1 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 (E-Commerce Directive) lay down a country-of-origin principle in respect of telemedicine services?
2.1. Does ‘healthcare in the case of telemedicine’ as provided for in Article 3(d) of the Patient Mobility Directive (Directive 2011/24/EU) relate exclusively to individual medical services which are provided (across borders) with the support of information and communication technologies (ICT) or to an entire treatment contract which can also include physical examinations in the patient’s country of residence?
2.2. If physical examinations can be included, must ICT-supported services predominate for there to be ‘healthcare in the case of telemedicine’ and, if so, in accordance with which criteria is the predominance to be assessed?
2.3. Is medical treatment as a whole to be regarded as cross-border healthcare within the meaning of Article 3(d) and (e) of the Patient Mobility Directive (Directive 2011/24/EU) if, from the patient’s perspective, the healthcare provider established in the other Member State, with whom the patient has concluded a treatment contract (in the present case: a dental clinic), provides part of the overall treatment with the support of ICT, whereas the other part of the overall service is provided by a healthcare provider (dentist) established in the same Member State as the patient?
3.1. Must Article 2(n) of the Patient Mobility Directive (Directive 2011/24/EU), in conjunction with Articles 3(d) and 4(a) thereof and Article 5(3) of Directive 2005/36/EC 1 of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (Professional Qualifications Directive), be interpreted as meaning that a dental clinic established in Germany must, in cases of ‘healthcare by telemedicine’ in Austria, comply with the national professional rules of a professional, statutory or administrative nature which are applicable there (in particular Paragraphs 24, 26 and 31 of the Austrian Zahnärztegesetz 2 (Law on dentists))?
3.2. Must Article 5(3) of the Professional Qualifications Directive (Directive 2005/36/EC) be interpreted as meaning that a healthcare provider moves to another Member State where such provider provides solely ICT-supported medical services? If that question is answered in the negative, does it constitute moving to another Member State if such provider undertakes physical examinations or treatment carried out by agents in the patient’s Member State of residence?
4. Does the freedom to provide services pursuant to Article 56 et seq. TFEU preclude the requirements laid down the Austrian Zahnärztegesetz, which in Paragraph 24 et seq. thereof primarily provides for the direct and personal exercise of the profession and the free movement of services only ‘temporarily’ for ‘nationals of a State that is a party to the EEA Agreement’ under Paragraph 31 thereof, namely for situations such as the present, where a foreign dentist provides – in principle on a permanent basis – services in part supported by ICT from abroad (in the sense of cross-border services by correspondence) and in part in Austria by using an Austrian dentist authorised to practise the profession as an agent pursuant to a uniform treatment contract.
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1 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).
1 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).
1 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).
1 Law on dentists.