The right to take a counter-sample - in case of infringement: exclusion of evidence (improperly obtained)?

摘要

42 LMBG embodies the 70-year-old right to take a counter-sample in the food sector. According to this law, a piece of sample (counter-sample) or a second sample has to be left at the place of control. The waiver of leaving a counter-sample is reserved to the producer. The purpose of taking a counter sample is to obtain further evidence. Taking a counter sample is in the interest of the producer, the merchant and for the purpose of examination (checking) in general. Therefore, the counter sample is not at the disposal of the person where it was left. Left behind counter samples that are declared after the expiry of the official sealing term or undeclared left behind counter samples are unfit as evidence in any administrative or criminal proceedings. EU regulations which provide the right for involved persons to be heard first regarding the existence of counter-samples within the expiry date, are presented; however, these regulations have not yet been translated into national law in Germany.