How do supermarkets dispose of expired food

Charges against two students: Can groceries from supermarket waste be taken away?

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Two students stand in front of the criminal judge on Wednesday. They are said to have stolen groceries from the dumpster in a supermarket. The criminal evaluation is clear.

According to a study by the Society for Consumer Research, 4.4 million tons of food from private households end up in the garbage every year, in supermarkets it should be around 45 kilograms per day. There has long been an initiative by the Federal Ministry of Food and Agriculture entitled "Too good for the bin" to encourage people to avoid throwing away food. Many supermarkets donate expired food to the food banks and citizens go "container" or "garbage dipping", so they take discarded food from the rubbish of the supermarkets in order to recycle it instead of leaving the goods in the trash. All of this touches on questions of ethics and morals - and then there is the law.

In the opinion of many lawyers, containers is a theft according to Section 242 of the Criminal Code (StGB). This rating has not changed for years. Those who contain containers and break open secured rubbish bins even have to expect a particularly serious case under Section 243 of the German Criminal Code. This is exactly what happened to two students from Bavaria. You are accused of having removed food from the garbage container on a freely accessible parking lot in Olching, Bavaria, in June 2018, which can only be opened with a hexagon key.

The supermarket initially filed a criminal complaint, which was later withdrawn. The Munich II public prosecutor's office, however, stayed with the allegation, so that a hearing at the Fürstenfeldbruck district court should take place on Wednesday. The public prosecutor's office used 100 euros as the value of the allegedly stolen goods - that would be the price of the new goods in the supermarket.

Search for the wrong

For the lawyer of one of the students, Max Malkus, all of this comes as a surprise: "Even when criminal prosecution comes in such cases, the proceedings have mostly been dropped," he says. Here there was initially a penalty order for 1,200 euros, the last offer by the public prosecutor was an attitude against the requirement to do eight hours of social work at the table in Fürstenfeldbruck. "In principle, my client would like to do the charitable work, she has already worked voluntarily for the Tafel in the past. However, we do not see what the alleged injustice of her act was," says Malkus. This is also against the background of the state objective from Article 20a of the Basic Law. According to this, the state committed itself in 1994 to protecting the natural foundations of life (...) within the framework of the constitutional order - and thus also binding the court in its decision.

Professor Dr. Bernd Heinrich, holder of the Chair for Criminal Law, Criminal Procedure Law and Copyright at the University of Tübingen. "But that doesn't change anything in terms of the criminal law assessment," he says. The supermarkets are obliged to dispose of their garbage properly and must ensure this. "There is no obvious loss of ownership that could rule out theft," says Heinrich. Rather, the cases are comparable to the bulky waste that you put on your doorstep. According to the prevailing opinion, an offer of transfer of ownership will be made. A surrender of ownership, a so-called dereliction, is not to be seen in this either. It is the same with the food in the garbage cans of the supermarkets and the disposal companies.

"The criminal liability of containers is certainly not entirely undisputed," says Jens Puschke, Vice Dean of the Law Faculty of the Philipps University of Marburg and holder of the Chair for Criminal Law, Criminal Procedure Law, Criminology and Medical Criminal Law. "But in fact it seems to be largely prevalent that stowing food in a locked container for collection rather indicates that the supermarket has not lost all interest in it and therefore did not want to give up its property at first." A gateway for the possible impunity could be the resolution with regard to the strangeness of the food. "It could well be argued here that the people in the parallel ranking in the lay sphere did not assume that the supermarket was still the owner of the things that were thrown away," says Puschke. But that is a question of evidence.

This is the approach of lawyer Malkus: With the disposal there is no property relationship between the supermarket owner and the food that is to be protected by criminal law and thus no more property that can be stolen - but an unpunished appropriation of disposed of but still edible food

De facto decriminalization in France

The lawyer must try to throw the case down at the factual level - it would be even more difficult at the level of justification and guilt. A justifying state of emergency according to § 34 StGB would be conceivable if the students were dependent on the food.

"Then the emergency situation should not be averted in any other way than by stealing the food," explains criminal lawyer Heinrich. Such a situation can always be averted if there is a state-regulated procedure to avert this need. An unavoidable mistake of prohibition, i.e. the unavoidable lack of insight into doing something forbidden, is not present: "The people from this scene already know what they are doing and they shouldn't have had any doubts about such an exclusion of guilt," says Heinrich.

The hope remains for the students that - as in similar cases - their proceedings will also be discontinued. However, the specific container is said to have been specially secured, the public prosecutor has set the value of the goods at 100 euros. If the value of the goods were below the low value limit of 25 euros, the particularly serious case of theft according to Section 243 (2) of the Criminal Code would be excluded. "A theft, however, remains, regardless of whether the value is above or below 25 euros," said the public prosecutor's office on LTO request. The special securing of the goods would then only play a role in determining the sentence.

In the case of a "simple" theft under Section 242 of the Criminal Code, however, there would be an additional aspect: "In addition, the public prosecutor's office must justify why they see a public interest in prosecution even though the criminal complaint has been withdrawn," says Heinrich. "That would be possible, for example, if the student's case differs from the usual ones or if a limit has been reached in these cases, so that the cases would now be punishable by criminal law."

"Only the legislature can prevent these criminal proceedings," says Professor Dr. Martin Heger, holder of the chair for criminal law, criminal procedure law, European criminal law and recent legal history in Berlin. Because, of course, there are two adjacent levels in these cases: morality and law.

In France, the legislature has reacted: "There, the law 'Fight against food waste' was passed in 2016 and the operators of supermarkets that throw away food are held responsible for causing food waste and, like the Czech Republic at the beginning of this year, they are banned from food throw it away, "says lawyer Malkus. "With the ban on throwing away edible food and the requirement to donate it, the factual basis for removing food from supermarket containers has been removed."