Reference question from the Federal Court of Justice (BGH) regarding the ban on advertising remote treatment under Section 9 of the German Health Promotion Act (HWG).
On 26 March 2026, reference no. I ZR 118/24, the BGH referred the following question to the CJEU:
‘Does the freedom to provide services under Article 56 TFEU preclude a provision such as Section 9 of the German Health Promotion Act (HWG), which prohibits the advertising of remote treatment by doctors established in another Member State that does not meet the professional standards recognised in Germany?’
In this case, the defendant, who is based in Germany, operates a website through which consumers can arrange medical consultations (including diagnosis and treatment recommendations) for specific medical conditions, as well as the procurement of any necessary medicines via a mail-order pharmacy that cooperates with the defendant.
To this end, consumers must complete an online questionnaire, the responses to which are used by the defendant’s partner doctors based in Ireland to provide an online diagnosis, without any doctor-patient contact taking place in person, via video conference or telephone call.
Based on the text-based questionnaire, the partner doctors issue a private prescription where appropriate and forward it to a cooperating mail-order pharmacy, which handles the dispatch of the medicines.
The claimant, a registered competition association, considers the defendant’s advertising to be unfair, as it breaches Section 3a of the Unfair Competition Act (UWG), in conjunction with the prohibition on advertising remote treatment set out in Section 9 of the Health Promotion Act (HWG). The claimant has therefore sought an injunction against the defendant. The court of first instance dismissed the action, while the court of second instance prohibited the defendant from advertising medical information by way of remote diagnosis in the course of trade, as occurred in this case on the internet.
The BGH has ruled that the outcome of the appeal depends on whether it is consistent with the provisions of Article 56 TFEU (freedom to provide services) to apply Section 9 HWG based on professional standards generally recognised in Germany, which result in a prohibition on advertising.
In the present case, the defendant advertises remote treatment on its German website, which is carried out by doctors based in Ireland without any personal contact with the patient.
Against this background, the Federal Court of Justice considers it questionable which ‘generally recognised professional standards’ should be relied upon here, and whether a provision such as that in Section 9(2) of the HWG conflicts with the freedom to provide services.
In accordance with the European Court of Justice’s ruling on 11 September 2025 in case C-115/24, the arrangement in question constitutes remote treatment as defined in section 9(1) of the German Health Services Act (HWG). This is because the diagnosis made by the defendant’s partner doctors is not based on their own observations in the context of the doctor and patient being present in person, but is based exclusively on the patient’s answers to an online questionnaire, using means of communication (para. 16).
Under German law, the generally recognised professional standards for the relevant treatments require a face-to-face consultation between doctor and patient. Therefore, if these were to be taken as the basis, remote treatment could not be advertised under Section 9(2) of the HWG.
However, the defendant takes the view that, in this case, when assessing the admissibility of advertising remote treatment, reference should be made to the partner doctors based in Ireland and, consequently, to Irish law or the recognised professional standards under Irish law.
In paragraph 20, the Federal Court of Justice (BGH) rules that prohibiting a German company from advertising remote treatment provided by Irish doctors affiliated with the German company in Germany infringes the freedom to provide services guaranteed by Article 56 TFEU, to the detriment of the Irish doctors.
The BGH then examines the concept of the freedom to provide services and the relevant ECJ decisions in detail, concluding that:
Such a restriction on the freedom to provide services is justified only on grounds of health protection. It is exclusively for the Member States to determine the level at which they wish to ensure the protection of public health, and how this level is to be achieved.
According to the Federal Court of Justice (para. 32 et seq.), the prohibition under Section 9 of the German Health Promotion Act (HWG) is justified on health protection grounds. Accordingly, advertising remote treatment in Germany is only permissible if personal medical contact with the person to be treated is not required, in accordance with generally accepted professional standards within the country. For the treatments in question here, a face-to-face consultation between doctor and patient is required, as set out in the product information for the medicinal products under consideration. This is why remote treatments do not comply with the recognised professional standards in Germany.
The BGH then examines the ECJ’s judgment of 11 September 2025 in Case C-115/24 with regard to Directive 2000/31/EC on health services provided at a distance using information and communication technologies. According to this directive, telemedicine services must be provided in accordance with the legal provisions of the Member State in which the service provider is established. In para. 42, the Federal Court of Justice concludes that even though the country-of-origin principle prescribed in the Directive generally applies to the remote treatment provided by the defendant’s partner doctors in Ireland, Section 9 of the German Health Services Advertising Act (HWG), which prohibits advertising remote treatments that do not meet recognised professional standards in Germany, is permissible under the Directive because it is necessary for the protection of public health.
Furthermore, the BGH examines Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare, concluding that it does not preclude the advertising ban in Section 9 of the HWG either, since the Directive does not regulate advertising.
Finally, with reference to the ECJ’s judgment in Case C-115/24 on 11 September 2025, the BGH states that Directive 2005/36/EC on the recognition of professional qualifications does not apply to providers of cross-border healthcare services in the case of telemedicine.
In its judgment of 11 September 2025 in Case C-115/24, the ECJ provided clarity on the legal classification of telemedicine care models by answering a number of questions, thereby creating legal certainty for healthcare providers operating across borders. The ECJ’s key statements were as follows:
The question referred by the Federal Court of Justice (BGH) to the Court of Justice of the European Union (CJEU) is logical given that it has not yet been clarified how Section 9(2) of the German Health Services Act (HWG) and the relevant standards are to be assessed in cross-border scenarios. Furthermore, the CJEU has only dealt with the admissibility of remote treatment, not advertising. The tension between the Member States’ obligation to protect public health and EU law on the freedom to provide services now needs to be clarified.
The subject of the dispute is an advertisement for remote treatment that does not meet the professional standards recognised in Germany.
Assuming that German standards are the relevant benchmark, this advertisement is prohibited under Section 9 of the German Health Promotion Act (HWG). This prohibition particularly affects doctors based and practising in Ireland, making it more difficult for them to access the German market. This could be incompatible with the freedom to provide services under Article 56 TFEU.
Therefore, the ECJ must decide whether a Member State can enforce stricter medical standards, even if this hinders cross-border service provision.
The ECJ’s 2025 ruling already established legal clarity regarding business models involving cross-border remote treatment. The ECJ’s response as to whether, and under what circumstances (including, where applicable, in Germany), such services may be advertised is eagerly awaited.
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