Art. 13(1) no. 1 BayPAG). This does not satisfy the constitutional requirements insofar as number plate recognition is not limited to the protection of legal interests that
would satisfy the principle of proportionality. For the rest, the provision complies with
the principle of proportionality when interpreted in conformity with the Constitution.
(1) The unrestricted authorisation of number plate recognition to avert any danger is
not compatible with the prohibition of excessive measures. Such measures must be
limited to the protection of legal interests of at least considerable weight.
104
By referring to Art. 13(1) no. 1 BayPAG, the legislature authorises automatic number plate recognition for the purpose of averting a danger. Pursuant to Art. 11(1) BayPAG, such measures firstly require that a “specific danger“ exist in an individual case
(cf. Constitutional Court of Bavaria – Bayerischer Verfassungsgerichtshof, BayVerfGH, Judgment of 28 March 2003 – Vf. 7-VII-00 u.a. – juris, para. 199; generally on
the concept of specific danger cf. BVerfGE 115, 320 <364>; 141, 220 <271
para. 111>; Decisions of the Federal Administrative Court – Entscheidungen des
Bundesverwaltungsgerichts, BVerwGE 116, 347 <351>). This is not objectionable
under constitutional law. Thus, the legislature focuses on the threshold for the exercise of powers, as is common in security law, and makes automatic number plate
recognition measures subject to sufficiently specific grounds (see para. 91 above).
[...]
105
However, the provision opens the possibility of using number plate recognition to
avert any danger and hence to use it generally for the protection of public security
and order. This refers to the inviolability of the legal order in its entirety without weighing the legal interests concerned. This does not satisfy the abovementioned requirements with regard to the protection of sufficiently weighty legal interests. In light of
the weight of the interference by automatic number plate recognition, the prohibition
of excessive measures requires that these measures be limited to averting dangers
to legal interests of at least considerable weight. A mere reference to the integrity of
the legal order as a whole, which forms the basis of the term “danger” in the general
police law clause, is not sufficient.
106
(2) When interpreted in conformity with the Constitution, the provision concerning
the cross-checking of data is not objectionable under constitutional law.
107
Art. 33(2) third and fourth sentences BayPAG authorises the automatic crosschecking of recorded number plates against the data records named in these provisions. The cross-check only satisfies the requirements of proportionality if the data
records to be checked are limited to such persons or objects sought by the authorities
that could be relevant for the specific purpose of the number plate recognition. However, this can be ensured if the provision is interpreted in conformity with the Constitution.
108
(a) The provision does not clearly specify the scope of the data cross-check authorised by Art. 33(2) third sentence BayPAG. It can, however, be interpreted in such a
109
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