carried out without specific grounds or checks without specific grounds carried out in
a wide range of environmental or commercial administrative matters.
bb) A further requirement of the prohibition of excessive measures is that number
plate recognition must be justified by protecting sufficiently significant legal interests
when measured against the resulting interference with fundamental rights. Given the
weight of the interference, automatic number plate recognition is only permissible if it
serves to protect legal interests of at least considerable weight, or comparably
weighty public interests.
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(1) Overall, automatic number plate recognition used to search for persons or objects constitutes an interference of considerable weight.
96
The fact that automatic number plate recognition is conducted in public traffic
lessens the weight of the interference. Vehicle number plates as well as the recorded
movements are easily visible to everyone. The automatic recognition targets only
number plates and is not used to directly identify personal features or characteristics;
the link to a specific person can only be made indirectly. In this respect, however, it
should be noted that the specific purpose of number plates is indeed that of identification (cf. BVerfGE 120, 378 <404>). In this connection, it is also relevant that pursuant to Art. 33(2) second sentence BayPAG only the place, date, time and direction
of travel are recorded, but not the persons or the vehicles. Furthermore, account
should be taken, in particular, of the fact that for the majority of persons concerned,
the checks have no direct negative consequences and leave no trace. The weight of
the interference with fundamental rights is significantly lessened by the fact that the
data cross-check is performed within seconds and that the data is immediately deleted without becoming known to anyone in case of a no match.
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Increasing the weight of the interference is the fact that, typically, automatic number
plate recognition is not limited to persons who are factually involved in a situation of
danger but rather affects an indefinite number of persons who provided no prior
grounds whatsoever to be subjected thereto. In practice, any person can be subjected to these measures. Generally, the intensity of the interference of such data collection methods is higher. Also increasing the weight of the interference is the fact that
the measures are carried out covertly. Particularly investigation measures indiscriminately affecting a large number of people – such as that in the case at hand – where,
for investigative purposes, serial checks of a large number of persons are conducted
in a public space, may solicit the feeling of being watched. The weight of the interference inherent in this measure is not mitigated by the fact that in case of a no match,
the persons recorded in the course of automatic number plate recognition are not
aware of it. While this does relieve the measures of their inconvenience, it does not
do away with their nature as a police measure and the impairment of individual freedom inherent therein, which at the same time affects free society as a whole (cf.
BVerfGE 120, 378 <402 and 403> with further references).
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(2) The considerable weight of the interference of automatic number plate recogni-
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