A new anti-corruption law is soon to be enacted in Germany which has been attracting much attention in the news.
Please find below more information about this law which could impact certain practices.
Approval of the new law:
On Thursday, 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 bill. The German Federal Council (Bundesrat) is expected to discuss the bill at its meeting on 13th May 2016. The law will come into effect on the day after its publication in the German Federal Law Gazette and this law will be of specific importance for both healthcare providers and industry representatives as certain practices will become subject to criminal law for the first time (whilst before they would have been considered a breach of unfair competition law or professional code of conducts in the past).
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 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 an unfair preference to another in domestic or foreign competition
- when prescribing medicinal products, remedies or aids (Hilfsmittel) or medical devices,
- 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
- when introducing patients or supplying examination material,
shall be liable to imprisonment not exceeding three years or a fine.“
The now adopted version contains extensive changes compared to prior versions that have recently been discussed. According to the original bill violations of professional obligations / code of conducts that are designed to protect the independence of the medical profession should have been criminalized.
This scheme was largely criticised since the different professional rules for doctors in Germany might have resulted in different standards of criminal law due to regional code of conducts. In that regard, constitutional concerns were expressed. Now, reference to unfair 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 unfair competition law.
Another significant change affects pharmacists. In the text adopted, certain sales and purchases of medicinal products have been removed from being a criminal offense. According to the law, discounts or rebates which pharmacists receive as part of the supply of OTC medicines intended to be dispensed in the pharmacy are not captured by the new criminal offense. By contrast, medicinal products or medical devices which are applied directly by the physician shall still be subject to the criminal offense. However, pharmacists can be subject to prosecution if they provide benefits to healthcare professionals in order to receive prescriptions.
Unlike provided in the first 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 which increases the impact of the legislation.