various interferences that build upon one another. In this regard a particular distinction must be made between the collection, storage and use of data (BVerfGE 130,
151 <184> with further references; established case-law). If the cross-checking of
data is authorised in this context, in principle, the collection and the cross-checking
constitute two separate interferences with fundamental rights.
Thus, in principle, the collection of personal data constitutes an initial interference.
It makes the data available to the authorities and forms the basis for a subsequent
cross-check with search terms. This amounts to an interference, except where data
is recorded in a non-targeted manner and exclusively for technical reasons and deleted immediately thereafter anonymously, without any trace nor interest on the part of
authorities in obtaining knowledge thereof (cf. BVerfGE 100, 313 <366>; 115, 320
<328>). In contrast, where the collection of larger amounts of data ultimately only
serves the purpose of further reducing the number of matches, the collection of data
itself may already constitute an interference. The decisive factor is whether, in an
overall assessment based on the purpose of the surveillance measure and the intended use of the data, the interest of the authorities in specific data records has already taken such specific shape that the persons concerned must be considered to
be directly affected in such a way that it qualifies as an interference with fundamental
rights (cf. BVerfGE 115, 320 <343>; 120, 378 <398>).
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The cross-checking of data and the subsequent use of filtered data constitute a further interference.
44
b) Accordingly, automatic number plate recognition pursuant to Art. 33(2) second to
fifth sentences BayPAG constitutes an interference with the complainant’s fundamental rights. It is irrelevant here whether his number plate yields a match or not. Even if
the complainant’s number plate results in a no match, the collection and the crosschecking of his number plate data interferes with his fundamental right to informational self-determination. To the extent that this contradicts the decision of the First Senate of 11 March 2008 (BVerfGE 120, 378), the First Senate no longer upholds that
view.
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aa) Automatic number plate data collection pursuant to Art. 33(2) second to fifth
sentences BayPAG consists of two data processing steps: firstly, the recording of
number plates pursuant to Art. 33(2) second sentence, Art. 13(1) nos. 1 to 5 BayPAG, and secondly, the cross-checking of number plates pursuant to Art. 33(2) third
and fourth sentences BayPAG. Both are directly related to one another: number plate
data collection directly serves the cross-checking of number plates with the database
records named in the provision; by combining these measures, data is extracted that
is important for the police to further exercise their functions.
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bb) In this context, the collection of number plate data and the cross-check that follows constitute interferences with the fundamental rights of persons whose number
plates are subject to automatic number plate recognition.
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