Dr Hans-Hermann Aldenhoff
Partner, Country Head
Germany and International Head of Dispute Resolution
What has been the status of medical practitioners in Germany since 2012?
In its decision GSSt 2/11 of 29 March 2012, the German Federal Supreme Court held that a resident medical practitioner admitted for statutory healthcare supply, in exercising his/her respective duties, acts neither as a public official nor as an authorized representative of the statutory healthcare insurance. Hence, any incentive granted to him/her for the prescription of certain pharmaceuticals by resident medical practitioners cannot be subject to criminal liability under the provisions on corruption of public officials in sec. 331 ff. of the German Criminal Act (Strafgesetzbuch, “StGB”) or sec. 299 StGB on “Bribery and corruptibility in commercial transactions”.
Why were legislative changes deemed necessary?
Decision GSSt 2/11 was perceived as having caused an undesirable gap in criminal liability and the legislator feared that it might even be understood as legitimizing principally undesired behavior. Therefore, legislative initiatives were quickly started to address bribery and corruptibility in the healthcare sector.
What did the legislator do?
After an earlier initiative in the Federal Council had come to a halt in 2013 at the end of the parliamentary term, the state of Bavaria filed a new draft legislative proposal there on 15 January 2015, widely relying on the draft from the last parliamentary term. On 4 February 2015, the German Federal Ministry of Justice and Consumer Protection (“BMJV”) submitted its own draft Act on fighting corruption in the health care sector (“StGB-E”). Public discussion currently focusses on the BMJV draft as this is expected to enter the parliamentary proceedings, possibly with amendment requests stemming from the Federal Council draft.
Can you give a brief description of the BMJV draft act?
The guiding principle of the BMJV draft Act is that it serves to prevent corruption in the healthcare field which is seen as causing significant cost increases and undermining the public’s trust in healthcare supply decisions. Hence, the draft aims at providing a two-fold protection: Fair competition in the healthcare sector shall be guaranteed while maintaining the patients’ confidence in the integrity of decisions made by healthcare practitioners. Sec. 299a StGB-E seeks to cover any healing professions which, by exercising the profession or by using a professional title, require a state-regulated education, it applies to situations covered by the statutory health insurance as well as beyond. In addition to the new offence, the draft also provides for increased penalties in severe cases (sec. 300 StGB-E) and allows for an “extended confiscation” (“erweiterter Verfall”) of objects which were acquired as a result of violating the new provisions or for the purpose of committing such violations (sec. 302 StGB-E). Any prosecution requires that a respective complaint is lodged with the authorities (sec. 301 StGB-E), unless they deem a “special public interest” in the prosecution to be given. The BMJV draft only marginally differs from that presented by the Federal Council, as mentioned above, in that its personal scope is wider (covering any healing profession, not only “academic healing professions”, i. e. those organized under their own chamber, as intended in the Federal Council’s draft) while liability shall depend on a criminal complaint (the Federal Council draft providing for an ex officio offence).
What are the key elements?
The core part of the draft Act is sec. 299a StGB-E which consists of two paragraphs, one relating to the receiver of the benefit and the other to its giver. Sec. 299a (1) StGB-E addresses the “receiver’s side”. Pursuant to it, a member of a healthcare profession who (1) claims, accepts a respective promise or takes a benefit for himself or a third person; (2) with regard to (a) exercising his profession in consideration of either unfairly favoring someone else in domestic or foreign competition or (b) violating his professional duties in a similar manner; (3) as to obtaining, prescribing or delivering pharmaceuticals, therapeutic products, auxiliary means, medical products or when supplying patients or examination material is liable to imprisonment of up to three years or a fine. The draft Act stipulates that the mentioned professional duties are those defined by the special regulations applicable for the profession in question, especially the professional codes. Sec. 299a (2) StGB-E relates to the “giver’s side”, its structure mirroring that of para. 1. According to sec. 299a (2) StGB-E, any person (1) offering, promising or providing a benefit to a member of a healthcare profession for himself or a third person; (2) with regard to (a) exercising his profession in consideration of either unfairly favoring someone else in domestic or foreign competition or (b) violating his professional duties in a similar manner; (3) as to obtaining, prescribing or delivering pharmaceuticals, therapeutic products, auxiliary means, medical products or when supplying patients or examination material will be punished as in para. 1, i. e. with imprisonment of up to three years or a fine. Sec. 299a StGB-E is designed to prevent an abstract danger for a legal asset resulting from a certain behavior (“abstraktes Gefährdungsdelikt”). It is not necessary that an unfair favoring or a violation of professional duties factually occur; sufficient is a respective agreement between the receiver and giver.
How has the draft been received?
The BMJV draft Act has received considerable objections from a number of professional organizations especially with regard to the envisaged criminal liability for a violation of professional duties “in a similar manner” which is criticized as being incompatible with the constitutional principle of legal certainty, potentially criminalizing any violation of professional rules. Since the latter are subject to the self-regulation of the respective administrative bodies, this would empower these bodies to define a respective criminal liability. One of the most comprehensive statements was that of the German Pharmaceutical Industry Association (afterwards “BPI”) of 10 April 2015 (afterwards “BPIS”), especially demanding that sec. 299a (1) no. 2, (2) no. 2 on “violating one’s professional duties in a similar manner“ be deleted without substitution as they had a “blanket character” and unintentionally criminalized established cooperation models.
What constitutes such “blanket character” and why is it problematic?
The “blanket character” is seen to result from the fact that the central legal term necessary for understanding the legal command, that of “professional duties” (“Berufsausübungspflichten”), is not defined in the penal provision itself, but in the professional codes of the medical profession, causing an independent criminal interpretation of the term to be impossible. The BPI indicates that the norm substantiating such “blanket” needs to fulfill the constitutional principle of legal certainty (Art. 103 (2) of the German Grundgesetz). They deem this problematic as the professional codes vary amongst the different Federal states which might cause one and the same activity to trigger a criminal liability in one state, while not doing so in another. This is also seen to violate the constitutional principle of non-discrimination pursuant to Art. 3 (1) Grundgesetz. It is further critizised that the professional codes as such lacked sufficient clarity, which is held to be unacceptable especially in criminal law.
The BPI has a second concern.
Indeed. They object an unintended and unjustified criminalization of some constellations as to the distribution of pharmaceuticals which would mean introducing into criminal law application uncertainties from competition law, social law and professional law following the ancillary nature of sec. 299a StGB-E. The main difficulties are considered to lie in the fields of rebates and discounts, service relationships between medical practitioners and the industry, e. g. as regards congresses and training courses, entering into mutual contracts or the execution of studies, and cooperations between the ambulant and hospitalised sectors. The BPI further criticizes that each rebate or remuneration considered inadequate or inappropriate by the prosecution authorities would necessarily oblige them to assess a possible criminal liability under sec. 299a StGB-E.
What are the next steps in the process?
The formal parliamentary proceedings on the draft Act have not started yet as, currently, the draft is still debated controversially in the professional circles. In a recent interview with “Deutsches Ärzteblatt” (“German magazine for doctors”), one of the rapporteurs on the draft Act, Jan-Marco Luczak, indicated that, although the draft would be reviewed with the aim of improving legal certainty, he would not expect any substantial changes. Mr Luczak underlined that a violation of professional duties as such will not be sufficient for a criminal liability under sec. 299a (2) StGB-E as this additionally required an agreement between the receiver of the benefit and the giver that the benefit is granted in consideration of a violation of professional duties (sog. “Unrechtsvereinbarung” or “illegality agreement”). He expects that upon the formal introduction of the draft Act, the parliamentary proceedings should proceed to a result quickly.
Partner, Country Head
Germany and International Head of Dispute Resolution
Simmons & Simmons
Dr Hans-Hermann Aldenhoff heads the German Simmons & Simmons offices and is the firm’s international head of dispute resolution, covering both contentious and non-contentious employment and dispute resolution. One particular field of expertise is white collar crime, where Hans-Hermann advises corporations on all labour and criminal law related proceedings against former management or third parties as well as on corporate compliance issues. He is also a member of the firm’s crime, fraud and investigations group.
The ETHIC Intelligence Experts’ Corner is an opportunity for specialists in the field of anti-corruption compliance to express their views on approaches to and developments in the sector. The views expressed in these articles are those of the authors.
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