Bill on fighting corruption in the healthcare industry approved by German Parliament and Federal Council

Whilst the bill has been the subject of an on-going public debate for quite a while now, it is worth noting that some changes have been made to the bill, whose section 299a will now provide that:

“anyone who, as a member of a healthcare profession which requires publicly regulated training for the professional practice or for using the professional title, in connection with exercising his/her profession demands or accepts a benefit for himself/herself or a third person or accepts the promise of such a benefit as consideration for an unfair preference over another in domestic or foreign competition

1. when prescribing pharmaceutical products, remedies, aids or medical devices
2. when purchasing medicinal products, remedies, aids or medical devices intended for immediate use by a member of the healthcare profession or his/her assistants, and 
3. when providing patient or examination material,”

shall be liable to imprisonment of up to three years or a monetary fine.

Section 299a shall thus provide for criminal liability of passive corruption in the healthcare sector. Section 299b of the German Criminal Code shall provide for criminal liability of the person offering, promising or providing such benefit, and thus deals with active corruption in the healthcare sector. In both cases, active as well as passive corruption, especially severe cases shall be punishable with up to five years of imprisonment.

The original plan to criminalize violations of professional obligations has been removed from the bill. Critics had argued that, first, professional obligations in the healthcare sector in many cases are extremely vague so that it would have resulted in a kind of criminal liability roulette to predict whether or not a specific behaviour was to be regarded as corruption, and that, secondly, as some professional obligations are governed on a state level, not on a federal level, this would have resulted in different standards across Germany.

Another significant change to the bill is that violations of sections 299a and 299b are to be prosecuted without the need for a criminal complaint. Whilst the initial draft of the bill had not provided for a need for a criminal complaint, sector complaints against the draft led to this requirement being introduced into the draft of 29 July 2015. This change has now been undone, so that, just as initially debated, any case of non-compliance will have to be investigated.

However, most aspects in the bill have remained the same. In many cases, the industry has already changed during the course of the last few years. A good example for this are invitations to conferences: Where many years ago it was a standard practice to invite medical practitioners (with their spouses) to events which were (at least) just as much about entertainment as about medical training, today’s conferences are usually no-frills and with a very strict focus on medical education. It could even be argued that in this respect the legislator has found a solution to a problem which no longer exists. In other areas, medical professionals are still using the loopholes which exist for them. Where this is the case, industry representatives should prepare their businesses to be in compliance with the new rules when they enter into force in the next weeks.