Czech Constitutional Court upholds requirement for supermarket chains to donate to food banks
Big chain supermarkets in the Czech Republic must continue to provide some of their unsold goods free of charge to food banks. The Czech Senators who filed a lawsuit with the Constitutional Court asking that the condition be abolished because they consider it to be a forced gift or a specific kind of tax on groceries did not convince the justices to declare the condition unconstitutional.
The Constitutional Court has found that the requirement is not an unconstitutional violation of the supermarkets' ownership rights or right to do business, but ruled that the measure is part of international attempts to limit food waste, reduce the production of garbage, save the environment, and aid those who are socially vulnerable. Judge-Rapporteur Jan Filip said the aim of the law is legitimate.
Groceries that would otherwise end up as waste are instead now being used to aid people in need, such as homeless persons or single mothers. Filip rejected the Senators' comparison of the requirement to expropriation.
The measure does not concern real estate, but goods that their owners want to sell at a profit, and if they fail to do so, they must dispose of them properly in any event, which also incurs costs. "Goods are not intended to be hoarded in a warehouse somewhere like Harpagon," Filip said.
The judge's reference was to the protagonist in the play "The Miser" by Moliére (1622-1673). The Senators' motion to abolish the requirement had been waiting for a decision since mid-2016.
The motion was filed by 25 members of the upper chamber, represented by Czech Senator Ivo Valenta (for the "Privateers" - Soukromníky party), who is also a co-owner of the firm that administers the disinformation server Parlamentní listy. The Senators said they considered the amendment to the law on groceries and tobacco products to be a violation of the rights of supermarket chains and were also bothered by the CZK 10 million [EUR 390 000] fine established by law for failure to meet this obligation.
The amendment affects businesses operating in facilities with a square area of 400 meters or more. The condition specifically concerns groceries that fail to fulfill general requirements - for example, their packaging is deformed or incorrectly labeled - but that are still safe to consume.
According to the amendment, the goods are meant to be donated to nonprofit organizations that collect, store and distribute groceries for charity and humanitarian purposes. The Senators' motion alleged the law has essentially introduced "forced" participation in charity.
The Senators compared the obligation to a "forced" gift or to the Nazi "Aryanization" of Jewish property or the Communist collectivization of rural land. The state, according to the Senators, should not be transferring the costs of its social policy onto this relatively small, specific group of people who do business with food.
"Any state policy must be paid for by the state with public money," the Senators wrote in their motion. The Constitutional Court justices, however, do not believe the requirement is comparable to state terror.
The measure is in the interest of all of society and the general welfare, the court found. According to the attorney for the Senators, Zdeňek Koudelka, by making such an argument the state is regressing to its pre-1989 philosophy.
"For the first time here, the state is commanding owners to give their property to somebody else," Koudelka said. The criticized provision made it into the law on the basis of an amendment proposed by the lower house.
That bill was approved in 2016 by the Senate and signed by the President. Critics of the law were bothered by the fact that retailers would not be able to donate the groceries according to their own preferences, for example, to children's homes or zoos.
Then-Agriculture Minister Marian Jurečka (Christian Democrats - KDU-ČSL) defended the amendment by explaining it as necessary to combating food waste. When the Constitutional Court judgment was announced last week, Jurečka tweeted that the measure has proven meaningful, as waste is being reduced and more than 100 000 people have been aided by the donations.
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