Clear judgment in Karlsruhe: Containers can still be punishable by law

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With containers, discarded food is taken from waste containers – mostly from waste bins in supermarkets, but also from factories. In 2018, the young women fished fruit, vegetables and yoghurt from the garbage of a supermarket in Olching near Munich at night in order to use the products themselves and distribute them to others.

Supported by the Society for Freedom Rights (GFF), they filed a constitutional complaint in November 2019 appealed against her conviction of theft for taking, among other things, fruit and vegetables from a supermarket dumpster in protest against food waste. In January 2019, the Fürstenfeldbruck District Court sentenced her to eight hours of social service and a fine of 225 euros on probation for theft. The Bavarian Supreme Court upheld this judgment in October.

The students had argued, among other things, that the criminal liability of containers violated the “prohibition of excess”. The Federal Constitutional Court contradicted this: The judges declared that the interpretation of the specialized courts did not violate the prohibition of arbitrariness, nor was their evidence constitutionally objectionable. The principle of proportionality and, in particular, the principle of ultima ratio do not require any restriction of criminal liability.

In addition, the constitutional court stated that the owner deliberately wanted the food to be destroyed by the waste disposal company “in order to exclude any liability risks when consuming the partly expired and possibly also spoiled goods”. Even this interest of the owner in excluding legal disputes is to be accepted within the framework of the freedom of property guaranteed in the Basic Law. In addition, there are sufficient possibilities in criminal law and criminal procedure law to “take into account the perpetrator’s minor guilt in individual cases”.

At the same time, however, the Federal Constitutional Court urged a political decision: It is basically a matter for the legislature to make the area of ​​criminal acts binding. The Federal Constitutional Court could not examine this decision to determine whether the legislature had found the “most appropriate, reasonable or fairest solution”. The legislature has so far not taken up initiatives to decriminalize containers.

The Society for Freedom Rights reacted disappointed and appealed to politicians. “The utilization of edible food is socially desirable in view of the scarcity of resources,” said board member Boris Burghardt. “We are still of the conviction that disposed of food deserves no criminal protection.” Because the criminal law serves to punish socially harmful behavior. “Now politics must take action against food waste.”

Often individual decisions

Containers as a means of combating food waste is politically controversial. In the summer of 2019, an initiative by Hamburg to exempt it from punishment at the conference of justice ministers of the federal states failed. According to the GFF, the criminal sanction in the federal states depends heavily on the individual case, for example whether the container is on the supermarket premises or unlocked on the street.

According to the society, around 18 million tons of food are wasted in Germany every year. However, there are still no clear guidelines for avoiding this food waste – unlike in France, for example. Since 2016, supermarkets have been obliged to donate unsold food to local food banks or other non-profit organizations; violations can result in fines.

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