The German Federal Ministry of Justice (Bundesministerium der Justiz und für Verbraucherschutz) proposed a draft bill which extends corruption legislation to independent healthcare professionals. On March 29, 2012 the German Federal Supreme Court had to decide the following case (file no. GSSt 2/11): A medical representative of a pharma company granted to a medical doctor a payment corresponding to five percent of the sales price if the doctor prescribed a certain drug. The payments had been disguised as a fee for scientific presentations by the doctor. The lower court convicted her for commercial bribery according to section 299 German Criminal Code. A criminal liability according to section 334 German Criminal Code was denied by the lower court as the doctor was not a public official. In the widely discussed decision of March 29, 2012 the German Federal Supreme Court acquitted the medical representative. In a careful analysis the Federal Supreme Court held that a doctor is indeed not a public official under German law. Commercial bribery was denied as the medical doctor was not an “agent” (“Beauftragter“) of the health insurance which would have been a prerequisite for the application of section 299 German Criminal Code. The Ministry of Justice has now produced a draft of a new law “how to fight corruption in the health sector” which aims at closing the above described gap. The draft proposes to add a new Section 299a to the German Criminal Code according to which health care professionals will be accountable for “taking and giving bribes in the health care sector”. The new proposal links criminal liability to all healthcare professionals practicing in healthcare professions that are only accessible on completion of a publicly regulated education. This includes in particular doctors and pharmacists. Under the new provision it would be prohibited to demand, allow himself to be promised or accept as a publicly regulated healthcare professional a benefit for himself or a third party when he purchases, prescribes or distributes in connection with his profession pharmaceuticals, medicaments, assistive equipment or medical devices or refers patients or inspection material as consideration for i) according an unfair preference to another in the domestic or foreign competition ii) breaching his professional duties in any other way (draft section 299a para 1 German Criminal Code). Offering, promising or granting a benefit to the healthcare professional is equally prohibited (draft section 299a para 2 German Criminal Code). The way the new provision is drafted conforms with the recently published draft for an amendment of section 299 German Criminal Code (see our previous post here). Similar to the new draft provision on commercial bribery, the draft section 299a German Criminal Code follows the dual approach. In addition to criminalizing an undue preference over the competition, the draft provision also prohibits the acceptance of a benefit in connection with the breach of ones professional duty as a healthcare provider. Given the increasing legislative momentum in the anti-corruption field in Germany, it is likely that German anti-corruption legislation will soon include provisions for health care professionals. Yet, the jury is still out to determine the precise extent of the new regulation.
Stephan Spehl is a dispute resolution partner in Baker & McKenzie's Munich office. For more than 25 years Stephan has been representing numerous clients in complex commercial disputes before state courts, and in ad hoc or institutional arbitration proceedings. He was party-appointed arbitrator in various ad-hoc proceedings. He also focuses his practice on compliance and internal investigations. He is the co-editor of the book "Coporate Internal Investigations", an overview of 13 jurisdictions.
Nicolai Behr is a compliance and dispute resolution attorney in Baker & McKenzie’s Munich office. He is a member of the steering committee of GlobalComplianceNews, a compliance news website with global reach moderated by Baker & McKenzie. He is a member of the committee "International" of the German Institute for Compliance. Dr. Behr is a regular speaker on compliance and white collar topics.