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The image shows a wooden figure diving into a trash can to retrieve bags of garbage.
Dumpster Diving. Photo by Flickr user Sue Thompson. Nov. 8, 2014. Used under CC BY-ND 2.0.

Happy Sustainable Gastronomy Day – Why “Dumpster Diving” is a Criminal Offense in Germany

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The following is a guest post by Karen Ungerer, a foreign law intern working with Foreign Law Specialist Jenny Gesley in the Global Legal Research Directorate of the Law Library of Congress.

On June 18, 2022, the world will celebrate Sustainable Gastronomy Day for the fifth time. The United Nations (UN) General Assembly designated June 18 as Sustainable Gastronomy Day on December 21, 2016, in its resolution A/RES/71/246. The idea behind establishing Sustainable Gastronomy Day was to “acknowledg[e] that gastronomy is a cultural expression related to the natural and cultural diversity of the world, and reaffirm[] that all cultures can contribute to […] sustainable development,” such as by promoting local agriculture, knowledge of the origin of food, food security, nutrition, sustainable food production and food processing, and the conservation of biodiversity.

The movement towards making gastronomy sustainable is growing fast. In 2017, the year Sustainable Gastronomy Day was celebrated for the first time, there were only 169 vegan restaurants in Germany. In 2022, the number of vegan restaurants has almost doubled to 316. The focus of the movement is on the appreciation of food, regional and seasonal cuisine, processing food in a way that is not wasteful of natural resources, food waste reduction, climate protection, shortening ways of food delivery to local markets and restaurants, and social commitment.

An important aspect of sustainable gastronomy is the reduction of food waste. Food contains and uses resources such as agricultural land, water, energy, human labor, and raw materials. If food is thrown away, natural resources are wasted. Not only do estimates suggest that 8 to 10% of global greenhouse gas emissions are associated with food that is not consumed, but also that between one third to one half of the produced food worldwide is not consumed. Therefore, avoiding and reducing the wasting of food is considered necessary for ecological, ethical, and economic reasons.

Veggies at Corvallis Farmers Market. Photo by Flickr user Friends of Family Farmers. Oct. 13, 2008. Used under CC BY-ND 2.0.

Overview of the Legal Situation in the European Union

The European Commission takes this problem very seriously and seeks ways to avoid and reduce food waste. While there are no binding European Union (EU) regulations to combat food waste in place, some member states have enacted national rules on food waste. For example, since 2016, France requires retail establishments over 400 square meters to donate unsold food. However, the law does not obligate businesses to actually give it away but to offer it to charitable organizations. Recently, the Spanish government announced that it intends to pass a law that will criminalize food waste by fining grocery stores for throwing away food and obligating restaurants to offer doggy bags for customers so that they can take home leftovers.

Overview of the Legal Situation in Germany

In Germany, such a law does not exist. For many years, it has been common practice in Germany for grocery stores to voluntarily give away unsold and still edible food to food banks or other social institutions such as “Die Tafel.” Although a great number of grocery stores and restaurants donate unused food to charities, others continue to throw the food in the trash. As the food is still good to eat, many people eat out of dumpsters. It is not only people in need who take expired or damaged products from waste containers but also young people who thereby want to set an example for sustainability and against food waste. In 2005, a study found that in urban areas in the U.S., 19% of those surveyed said they had eaten food they retrieved from a dumpster at least once. The activity of searching in garbage containers at grocery stores or restaurants for edible but expired food is called “dumpster diving.

In Germany, dumpster diving is punishable as theft under section 242 of the German Criminal Code. According to this provision, “[w]hoever takes movable property belonging to another away from another with the intention of unlawfully appropriating it for themselves or a third party incurs a penalty of imprisonment for a term not exceeding five years or a fine.”

The problematic and debated question is whether movable property which is thrown away is still “foreign-owned” (Fremdbesitz), meaning whether it belongs to another person. The term “foreign-owned” is an undetermined legal term, meaning the wording in the statute is deliberately open and allows different interpretations. The intention behind undetermined legal terms is to give the judge a certain degree of discretion. In order to interpret an undetermined legal term in a statute, the judge may refer to case law on other areas of law, if necessary.

Movable property belongs to another person if it is owned by any other person according to civil law. By contrast, movable property does not belong to another person within the meaning of section 242 of the German Criminal Code if ownership never existed or if, according to section 959 of the German Civil Code, the owner gives up possession of the movable property with the intention of waiving ownership (dereliction). The will to waive ownership does not have to be expressly declared but can also be inferred from the behavior of the owner, for example by throwing away an object. Whether ownership was waived depends on the circumstances of the individual case.

According to the Superior Court of Bavaria (Bayerisches Oberstes Landesgericht, BayObLG), the worthlessness of movable property as such does not grant third parties the right to take it. Furthermore, the fact that the food was thrown into a waste container does not indicate that the owner had the intention of waiving ownership, in the opinion of the court. Rather, ownership is only waived if there is a deliberate abandonment of movable property in favor of an unspecified group. However, this is not the case when food is thrown away. The BayObLG explained that when food is thrown into a waste container that is collected by a waste disposal company, the owner only wants to relinquish ownership in favor of one other person, the waste disposal company, and not in favor of everyone. Furthermore, grocery stores or restaurants must ensure that their waste is properly disposed of, so an obvious abandonment of property cannot be presumed. The decision of the BayObLG was upheld by the German Federal Constitutional Court.

If a container is not publicly accessible or is locked and opened with force to retrieve the food, other criminal offenses might be relevant, such as aggravated theft punishable under section 243, paragraph 1, sentence 1 of the German Criminal Code if the value of the food is more than 25-50 euros (about US$26-52); trespassing punishable under section 123 of the German Criminal Code; or damage of property punishable under section 303 of the German Criminal Code.

The act of dumpster diving can be justified only if the offense was committed in a state of emergency according to section 34 of the German Criminal Code. According to that provision, “[w]hoever, when faced with a present danger to life, limb, liberty, honor, property or another legal interest which cannot otherwise be averted, commits an act to avert the danger from themselves or another person is not deemed to act unlawfully if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with.” This is the case only if the person who is dumpster diving depends on the food to survive.

After two students were convicted for dumpster diving, a new debate on decriminalizing dumpster diving in Germany was started. So far, the German Bundestag (parliament) does not seem inclined to decriminalize dumpster diving.

Additional Resources

If you would like to know more about dumpster diving or food sustainability in general, you may wish to consult these selected resources:

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