On 14 April 2016, the German Bundestag adopted a bill extending German anti-corruption legislation to large parts of the country’s healthcare sector. Following a judgment of Germany’s highest judicial authority in criminal matters, the German Federal Court of Justice, dating 29 March 2012, in which the court declared that neither the provisions on commercial bribery nor public bribery apply to independent health practitioners, the German legislator had to act. The German Federal Court of Justice had constituted that independent health practitioners neither qualify as “employee or agent” under the provisions outlawing commercial bribery (Section 299 German Criminal Code), nor do independent health practitioners act as “public officials” under the laws prohibiting public bribery (Sections 331 et seqq. German Criminal Code). Yet, politically, the criminal liability of healthcare professionals is deemed appropriate. In adopting the bill “Combatting Corruption in the Health Sector”, the lower German legislative Chamber followed suit to a proposed resolution of its Committee on Legal Affairs and Consumer Protection (http://dip21.bundestag.de/dip21/btd/18/081/1808106.pdf). Bribery in the healthcare sector will give rise to criminal liability under the new section 299a German Criminal Code where a healthcare professional in relation to his occupation, demands, allows himself to be promised or accepts a benefit for himself or another for according an unfair preference in domestic or international competition when prescribing or procuring pharmaceutical products, or when introducing patients. Vice versa, those who offer, promise or grant a benefit to Healthcare professional under these circumstances will be criminally liable pursuant to section 299b German Criminal Code. The adopted resolution differs partly from the initial draft bill introduced by the German Federal Government (http://dip21.bundestag.de/dip21/btd/18/064/1806446.pdf). Contrary to the draft bill, the offense will not allow for the “demand for a penalty” by NGOs or health insurance funds, but it entrusts the initiative for prosecution exclusively to the German public prosecution services. Also, the adopted resolution no longer ties criminal liability to the violation of professional duties. As the bill does not require assent by the German Upper Chamber under German Constitutional Law, it will likely come into force during the second or third quarter of 2016.
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.