Clifford Chance
Healthcare Newsflash: German Federal Supreme Court of Justice Excludes Private Practitioners from Scope of Bribery Related Criminal Liability
3 July 2012
The Grand Senate for Criminal Matters of the German Federal Supreme Court of Justice (Bundesgerichtshof, "Supreme
Court"), in a press release on 22 June 2012, provided clarification on a much disputed issue of German Criminal Law, i.e.
whether private practitioners who treat patients insured by public sick funds are to be considered either public officials
(Amtsträger) or agents (Beauftragte) for the purposes of the German Criminal Code (Sec. 331 et seq. and Sec. 299,
respectively).
To this question, the Supreme Court decided that private practitioners who treat patients insured through the public sick
funds are subject neither to Sec. 331 German Criminal Code (i.e. the prohibition of
bribery of public officials) nor to Sec. 299 of the German Criminal Code (i.e. the
prohibition of commercial bribery).
While the Supreme Court clearly sees the practice of providing monetary and other
benefits to private practitioners as harmful to the healthcare system, because the
Criminal Code does not classify private practitioners as public officials or agents,
the Supreme Court was compelled to exclude applicability of criminal liability to this
context. Correspondingly, the Supreme Court suggested that the legislature may
wish to enact new legislation which would prohibit potentially criminal activity
arising from suspect interactions between industry and private practitioners.
