foodsharing.de statement on liability and organizational structures

Information provided for active Foodsavers by the Foodsharing e.V. in April 2017.
Translated by Valentin via the foodsharing.de English Department. Proofread by Kristijan and Janina.

1. Status of the local initiatives

Our aim as active local Foodsavers is to share food saved by private volunteers within a non-profit initiative, for private individuals. This noticeable concept has been state of the art. However, in the meantime, our movement has considerably grown and – seen from an outward perspective – is exceeding the original idea of a small initiative. The fact that we share essential hygienic procedures and work rules as well as a logo and  identification cards makes us seem more or less like an association, although the respective structure has neither been written down nor registered.

As to liability, in a lawsuit, our local groups could legally be seen and judged as "an unincorporated association" or a "membership association" - and it doesn’t matter if we like that or not. This could cause all individuals that participate to be liable for the community of sharers. For lack of member lists and elected chair persons a person whose activities and responsibilities may suggest that this person might actually be held responsible could possibly be found. As a rule, this would normally be the ambassador. Likewise, the eponymous association foodsharing e.V. based in Cologne might be liable for injuries caused by foodsharing in our country, even if the respective foodsavers have not been members of the association that may actually not be considered responsible for their actions.

At Food-Share Points, in particular, the principle of private exchange is presumably no longer given. Consequently, authorities might see us as a "company" dealing with food, even if this is done outside the framework of such a company who are exchanging food or worthless "waste" for free because the latter is no longer of commercial value due to its expiration date. As a result, we might be confronted with stricter hygienic and data history regulations that might practically make foodsharing impossible. At the moment, the foodsharing e.V. is trying to introduce a legal case to prevent this intentionally unilateral interpretation of the law. As a matter of fact, however, that issue is in legal limbo and due to lack of specific legislation and court ruling has been judged in different ways.

To ease this not yet legally clarified situation in our everyday work and to aim at improved security the foodsharing e.V. therefore suggests the intentional founding of local independent non-profit associations, either as membership associations of individuals or as incorporated societies. The foodsharing e.V. (future Bundesverband), licensor, will support you in the area of consulting, sample articles and legal opinions.

2. Feasible liability scenarios

According to Civil Law, the person who damnifies another person is subject to individual liability for full compensation of damages. Since this risk might amount up to a few million in the case of body injury and property damage, it should be diminished by means of a combined limit for body injury and property damage insurance. For, even while working in non-profit associations, the specific persons may be held responsible individually in a liability case. This holds true even if people are engaged in unsalaried charitable activities. As a matter of fact, in the course of a liability claim the person responsible for damages and subsequent claims of damages is detected and held liable individually. For instance, if at an information desk a power cable has not been properly fixed on the floor and someone stumbles and gets injured, the person who had mounted the desk is brought to justice.

As to foodsharing the law of charitable gift applies, which means that if something happens while donating food, individual liability applies only in the case of culpable negligence and premeditation.

That means: If all Foodsavers keep sticking to the (hygienic) rules and regulations described in the Wiki, culpable negligence can be excluded. Still, culpable negligence has not been acutely legally defined. However, it comprises that reasonable care (while handling and passing on food) has been violated to an unexpectedly high extent. In other words, you might say in case you act against common sense. We may confidently exclude premeditation. Therefore, if everyone stick to our hygienic rules, the risk of liability is extremely low.

As stipulated in our contract all Foodsavers must declare that they assume full responsibility for sharing the saved food. Simultaneously, in the contracts concluded with the collaborating companies we declare that the latter are relieved from liability except in case of culpable negligence or premeditation on their part. In principle, both the collaborating companies and ourselves consider this way of handling the matter useful, even if it may be legally undecided who, owing to circumstances, may actually be liable. Collaborating companies may never be totally relieved from liability, even if they cannot be accused of culpable negligence or premeditation. To quote an example, in a complaint Courts might reach the conclusion that Foodsavers are merely "assistants" in the process of the supermarket's donation of food and, therefore, in a claim for damages, it is the supermarket who are liable.

Up to now there has been no incident where people have had their stomach upset nor heard of an incident of food poisoning. In other words: our concept of hygiene works. If, unfortunately, there should be a complaint, the party launching the complaint has to prove that the injuries were caused by the food obtained from a Foodsaver/Foodsavers. In addition, the party has to credibly show that the rejected food had already been spoiled at the moment he or she obtained it and that it was not spoiled when being already in possession of it.

3. Collaboration Contracts and liability issues

In general, written collaboration contracts are signed between the respective company and the foodsharing e.V. (e.g. Kaufland). This should remain the same for the future. In addition, the future Bundesverband (federal Association)to be founded will conclude these company contracts. Here the question arose, how to handle the liability matter with smaller companies who are eventually handed the contract by the individual Foodsharer/Foodsharers who meet them. Whose liability is it? In principle it holds true that the person who signs a contract shall be liable. If the Botschafter is a member of a society and has been authorised by this society to conclude a contract, the society shall be liable. In the case of an incorporated society the society is liable with their assets. If those assets are insufficient, the members of the Managing Board are liable. In Duisburg a local Court ruled that the local Botschafter has been the Manager of an unincorporated association. In this case, it is all the members of the local Duisburg Club who are liable not only the Botschafter. Only in case the Court rules that a Botschafter concludes a contract on his own, basically as an individual private person, only he or she  is liable. Unfortunately we cannot predict the decisions of the respective courts in individual cases. This fact was one of the reasons why we suggest the founding of local incorporated societies. To secure legal certainty.

4. Coverage by general liability insurance

There are many federal states who insure their non-profit assistants by a free collective combined limit for general liability and accident insurance without registering them individually. In theory, people should be insured when incurring accident during their non-profit activities. Nonetheless there is reasonable doubt if this also holds true for Foodsavers, Biebs and Bots. For in the meantime foodsharing has become a very large organisation. In case of indemnity authorities will probably argue that this organisation has to take care of the liability insurance of its "members" by itself (The above-mentioned accident insurance protection is not included here!).

If you have concluded a private liability insurance, a supplemental agreement (this is generally the rule now) shall also insure your non-profit activities. If you engage in your non-profit activities by order of an association or a society, the insurance will probably not remit money.This holds true primarily for chairpersons and their authorised representatives, may, however, also be interpreted that way for active foodsavers. You had better write this down in your contract with the respective insurance company in case you have already concluded or intend to conclude a private insurance by yourself.

At present we are clarifying and negotiating conditions for all-member compulsory liability for unincorporated associations and incorporated societies - initiatives unfortunately not comprised. Still, it looks as if only those people who are members of a local foodsharing association may be insured. We have also been considering that the federal society/Bundesverband to be founded shall conclude a liability insurance contract for all the local associations. We were advised against this by policy dealers, because the local associations do not have identically worded stipulations and will probably engage in different activities so that at the end of the day insurances might not remit money. As a result the local associations should conclude their own local liability contracts by themselves profiting from the same convenient conditions we have negotiated for a common framework contract for all associations. Further detailed information for the new associations will be given at a later date.

5. Fiscal situation

At the moment there is no reason to worry about the fiscal situation. We are just informing you about it to enable you to answer questions on the part of companies.

1. In principle concerning tax exemption from trade income tax and corporation tax the association must be recognised as non-profit. This is what the incorporated society as well as the unincorporated association may apply for! It can't be done by an initiative.
2. As early as in 2012 it was made clear that it is completely unacceptable that, on the one hand, food discharged as waste has been tax free, whereas food passed on to foodsharing should be taxed. In 2013 a parliamentary committee/Petitionsausschuss of the German Bundestag stated that on principle, according to EU legislation, exemption from value-added tax for free of charge values and goods is not permitted. However, due to the petition the Federal Ministry of Finance (Bundesministerium für Finanzen,BMF) seized the issue introduced by the petitioner who discussed problems when passing on for free food reaching best-before date or sell-by date to charities. Meanwhile, superior federal authorities as well as Länder-authorities have decided that similar cases shall be exempt from VAT-taxation for reasons of equity, unless donation receipts are issued.

In 2016, the Oberfinanzdirektion Niedersachsen decided similarly. They assume that the value of goods reaching best-before or sell-by date approaches to zero.

Those interpretations have been made referring to "die Tafeln" in their role as a charitable organisation. We are a non-profit organisation (if applied for and recognised as such according to our sample association articles), but only partially charitable in practice. Seen that way, there are still incompatibilities and gray zones that are still to be clarified judicially and fiscally.

If you have further questions on the points mentioned above, please don't hesitate to email us via: verein@lebensmittelretten.de
We will publish those answers at the following link:

(This is to create a survey of all questions. So, please have a look at the doc, before you ask a question that might already been answered)