Demand for retention samples – legally permissible?

In this respect, it is questionable whether the authorities can actually demand reserve samples from the operator - as has already happened in practice. Reserve samples are a requirement of food law. These are food samples taken and stored by a food business itself. In the event of a consumer becoming ill, these reserve samples can then be tested. For example, Section 20a of the Animal Food Hygiene Ordinance (Tier-LMHV) stipulates that reserve samples must be taken from foods containing raw eggs that are served in mass catering establishments where people who are particularly susceptible to illness due to their age (children, seniors). There is no explicit legal basis in the GenTG or the GenTSV requiring the operator to take reserve samples, store them long-term, and make them available upon request from the authorities. At most, recourse to Section 25 GenTG is conceivable: Section 25 (2) GenTG only regulates the case in which the operator must immediately provide the competent authority, upon request, with the information required for monitoring and make the necessary resources, including control samples, available within the scope of their availability. These control samples serve to monitor the facility in individual cases. Retained samples for later comparison are not covered by the wording. Moreover, the term "within the scope of availability" already makes it clear that long-term storage is not covered by the wording. According to Section 25 (3) GenTG, the authority is authorized to enter and inspect the premises during business hours, to carry out all tests necessary to fulfill its duties, including taking samples, and to inspect the documents required to fulfill its duties and to make photocopies or transcripts thereof. At the same time, the operator, the BBS, and the PL are obligated to tolerate and support these measures (Section 25 (3) Sentence 3 GenTG), the latter to the extent necessary to fulfill their duties, and to submit the necessary business documents. This, too, does not constitute an obligation for the operator to take reserve samples and keep them on file. The authority itself can take appropriate samples and then keep them on file. To the extent that reserve samples were already the subject of a decision by the Higher Administrative Court of Munich (judgment of November 14, 2013 - 22 BV 11. 1307), the reserve samples were taken as part of a seed certification process based on the sampling guidelines of the Association of Certification Bodies for Agricultural Seed and Planting Material from January 2007. The draft amendment to the GenTSV (Gen TSV- 2018) also contains no regulations on reserve samples.