New year, new start: Politicians want to curb the destruction of food.

It is also about impunity for activists who get food from supermarket waste containers in order to “save” it for consumption, in short, “containers”.

Rising food prices and supply shortages have put responsible food management back on the political agenda.

Added to this is the heated debate about how politicians and the courts should react when activists trying to save the climate, natural resources or food come into conflict with the legal system.

Katja Gelinsky

Business correspondent in Berlin

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Next week in Berlin, the federal and state agricultural ministers will deal with the topic of "saving food".

Berlin's consumer senator, Bettina Jarasch, has put the motion on the agenda.

The Greens politician, whose initiative is supported by the red-green government of Lower Saxony, believes that the criminal prosecution of the containers is “no longer appropriate”.

At the federal level, meanwhile, the Federal Ministry of Food and Agriculture led by Cem Özdemir (Greens) and the Federal Ministry of Justice led by Marco Buschmann (FDP) are exploring how to prevent edible food from ending up in the garbage and those who want to fight it in Robin Hood-style risk punishment.

There have already been announcements and initiatives against the destruction of food and the criminal liability of containers in the last legislative period.

But an initiative to decriminalize food rescue actions failed in 2019 in the Federal Council.

The traffic light coalition has promised a new attempt.

The coalition agreement states: "We will (...) reduce food waste in a binding manner for specific sectors, clarify liability issues and allow tax relief for donations." For Federal Minister of Food Cem Özdemir, this also includes tackling actions that are currently punishable by law.

The Greens politician has repeatedly assured that he advocates "impunity for the container".

Özdemir and Buschmann work out a joint proposal

Now Özdemir wants to follow up his words with action together with Federal Minister of Justice Marco Buschmann (FDP).

Both houses assure that there is “a good and constructive exchange” on the subject of containers.

They do not want to reveal what that means in detail from a legal point of view.

Only so much: "A joint proposal for implementation is currently in progress," said a spokeswoman for Özdemir's ministry.

Jarasch also wants to get the Minister of Justice on board.

The proposal of the Berlin senator: At the request of the conference of agriculture ministers, the federal and state justice ministers should ensure that criminal proceedings for containers are generally stopped.

Namely nationwide by supplementing the guidelines for criminal and fine proceedings.

From a nutritional point of view, that would be an “important signal,” Jarasch advertises.

Theoretically, it would also be conceivable to exempt containers from criminal prosecution from the outset by amending the penal code.

According to the current legal situation, groceries that supermarkets dispose of are “foreign things” that fall under the criminal offense of theft – with good reason, as the Federal Constitutional Court explained in a 2020 decision on the criminal liability of container storage.

For example, retailers have a legitimate interest in food that is no longer intended for sale actually being disposed of in order to rule out liability or litigation risks due to possible health hazards for consumers.

However, this assessment by the legislature is not mandatory, wrote the Federal Constitutional Court.

You can see in France that things can be done differently.

Role model France?

In French law, waste is considered a “void” or “abandoned item”, so there is no criminal charge of theft if food is stolen from supermarket containers.

However, if there is destruction, for example because the food rescuers cut through fences or break locks on the containers, this is also a punishable offense in France.

The problem of further criminal offenses in "containers" - be it property damage, be it trespassing - should also be taken into account in the German debate.

The simple motto "Impunity for containers" hides these legal violations, which are regularly committed with theft of food.

Not least because of this, there are considerations not to start with criminal law or criminal procedural law, but to make the supermarkets themselves subject to fines through so-called anti-disposable laws.

The aim is to prevent food that could still be eaten from ending up in the garbage container at all.

Here, too, France is cited as a role model.

Grocers there are obliged to donate food that can still be used instead of throwing it away.

Controversial anti-disposable laws

From the point of view of the German Food Association, neither anti-disposable laws nor the decriminalization of containers would make sense to curb food waste.

"Politicians would then send the wrong signals, because it would be ignored that food safety is also an issue," said Marcus Girnau, deputy general manager of the food association.

German companies donated around 300,000 tons of food to the Tafel every year.

“More than in countries with anti-disposable laws, according to Girnau.

This cooperation with the food banks should promote politics, for example by reducing bureaucratic and tax hurdles.

In addition, one should not forget that only 7 percent of all losses in the value chain can be attributed to retail.

Most food is thrown away in private households.