be registered at any time and in any place without noticing it and checked against police search lists or otherwise appear in data records would be incompatible with this
principle. To the contrary, such measures affecting the freedom of the individual require specific grounds and must be justified since they interfere with the fundamental
right to informational self-determination.
(3) Since the automatic recognition of vehicle number plates records personal data,
it differs from measures conducted in respect of an indefinite number of persons without recording personal data, where specific persons’ data is recorded only in the case
of a match. This is for instance the case with speeding or red-light cameras. Within
the scope of these measures, driving behaviour is monitored without recording number plates and thus independent of the attribution of the vehicle to a person. Personal
data is collected only if a violation is established, which triggers the taking of a photo.
The fact that in such cases an interference with fundamental rights can only be found
in case of a match does not carry over to automatic number plate recognition. Moreover, traffic-safety-related police measures cannot be compared to automatic number
plate recognition measures because they target risky activity and their greater scope
is thus substantively justified (cf. para. 94 below).
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(4) Like other monitoring measures, automatic number plate recognition must be
assessed uniformly and independent of its result in a specific case. When weighing
the substantive interference within the scope of an overall assessment, it must be
considered that automatic number plate recognition does not target highly personal
features such as, for instance, a person’s face but rather public number plates which
deliver limited data on the vehicle owner only indirectly, as well as that adverse consequences can be ruled out in respect of those persons who do not turn up as a
match. Also to be considered, vice versa, are the number of persons affected by the
measure, its covert nature and the type and relevance of the data records included in
the cross-check.
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II.
Formally, Art. 33(2) sentences 2 to 5, Art. 38(3) BayPAG mostly meet the constitutional requirements. However, the Free State of Bavaria does not have legislative
competence insofar as the reference to Art. 13(1) no. 5 BayPAG authorises the use
of automatic number plate recognition for the purposes of preventing or suppressing
the unlawful crossing of borders and thus governs border protection issues. For the
rest, the Free State of Bavaria has legislative competence for the provisions.
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1. Art. 33(2) second to fifth sentences and Art. 13(1) no. 5 BayPAG violate the exclusive legislative competence of the Federation in relation to border protection under
Art. 73(1) no. 5 GG, to the extent that automatic number plate recognition is authorised to prevent or suppress unlawful border crossing.
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[…]
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