This is what the medical law and criminal law experts of law firm Heuking Kühn Lüer Wojtek are pointing out. "The press coverage of the decision suggests that the Federal Court of Justice had declared contributions in the healthcare system as permissible in general," said André Szesny, economic criminal lawyer and compliance lawyer. "But this is not the case." The Federal Court of Justice only dealt with the issue of punishability of contributions to statutory health insurance physicians by pharmaceutical companies. This was answered in the negative in the decision published last Friday. The Federal Court of Justice did not have to deal with any other statutory provisions.
"This must not belie the fact, however, that regulations in professional law, social security law and drug advertising law expressly prohibit physicians from requesting or accepting compensation or other benefits for the prescription of drugs," explained medical law expert Yvonne Remplik, also of Heuking Kühn Lüer Wojtek. While there is no risk of fines or imprisonment, "severe penalties of up to fifty thousand euro per case of contribution may be imposed – not only on physicians, but also on the companies giving the contribution. Sanctions under professional law are also possible."
Remplik and Szesny advise physicians and pharmaceutical companies therefore against tabling existing compliance plans. "This would be a mistake," said criminal lawyer Szesny. If no structure to avoid violations of prohibitions has been established yet, it should be done now. This is also required for tax reasons since prohibited contributions may not be recognized as business expenses. "If this is attempted nevertheless, it is punishable as tax evasion. Despite the Federal Court of Justice order, criminal law is involved again," concluded Szesny.