New law on fighting corruption in the healthcare industry approved

New law on fighting corruption in the healthcare industry has been approved by the German Bundestag (section 299a/b Criminal Code)

Approval of new law:

Yesterday, the German Bundestag approved the draft law on fighting corruption in the healthcare industry (14 April 2016, BT Drs. 18/6446). The Committee on Consumer Protection and Justice had recently introduced some significant changes to the initial draft bill. The German Federal Council is expected to discuss the bill at its meeting on 13 May 2016. The law will take effect on the day following promulgation in the German Federal Law Gazette.

The wording of section 299a German Criminal Code (mirrored in section 299b German Criminal Code for the granting of such benefits – „active corruption”) will be as follows:

„Anyone who, as a member of a healthcare profession which requires a government-regulated training for the professional practice or for using the professional title, in connection with exercising its profession demands or accepts a benefit for himself or a third person, or accepts the promise of such a benefit, as consideration for according an unfair preference to another in domestic or foreign competition

1. when prescribing medicinal products, remedies or aids (Hilfsmittel) or medical devices
2. when purchasing medicinal products, remedies or aids (Hilfsmittel) or medical devices, each intended to be used by the member of the healthcare profession or its professional assistants, or
3. when introducing patients or supplying examination material, shall be liable to imprisonment not exceeding three years or a fine.“

Brief comment:

The now adopted version contains far-reaching changes compared to prior versions that have recently been introduced to the discussion. According to the original draft bill violations of professional legal obligations that are designed to protect the independence of the medical profession should have been criminalized. This scheme was largely criticized, since the different federal professional rules for doctors in Germany might have resulted in a kind of criminal federalism. In that regard, constitutional concerns were expressed. Now, reference to general competition law as a starting point is made and „the unfair preference in competition“ shall inter alia constitute the criminal offense. The professional rules and the duty to adhere to professional medical independence could, however, indirectly continue to be of relevance for the application of the criminal offense, namely through the backdoor of the general competition law.

Another significant change affects pharmacists. In the text adopted, the sale and purchase of medicinal products has largely been removed as a criminal offense. According to the law, discounts or rebates which pharmacists receive as part of the supply of drugs intended to be dispensed in the pharmacy are not captured. By contrast, medicinal products or medical devices which are applied directly by the physician shall still be subject to the criminal offense. Background for in the end leaving out the pharmacists was likely that discounts to pharmacists are politically accepted and welcomed and shall not be under suspicion of corruption. However, pharmacists can be subject to prosecution if they provide benefits to healthcare professionals in order to receive prescriptions.

Unlike provided in the prior government draft bill, the Bundestag has decided that passive and active corruption in the healthcare profession is recognised as an ex officio-crime, i.e. one which has to be prosecuted by the authorities in any case and not only upon application

For more information about our legal services in the area of Business Compliance, please refer to Business Compliance.

Your contacts: Maria Heil and Marc Oeben.