way that the data to be cross-checked must be selected in connection with the
grounds for the automatic number plate recognition.
[…]
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(b) […] It follows from the principle of proportionality that interferences with fundamental rights are only justified to the extent that they are suitable and necessary for
achieving a legitimate aim. If automatic number plate recognition is authorised for
averting a specific danger, the cross-checking of data must also be limited to this purpose. If data records not related to this purpose are to be included in the cross-check,
a separate tenable reason is required. Without such a reason, a cross-check against
data records that do not serve the purpose of the automatic number plate recognition
measure from the outset is disproportionate. Against this backdrop, one cannot assume that the legislature intended to use Art. 33(2) third sentence BayPAG to undermine the purposes it clearly defined in its reference to Art. 13(1) nos. 1 to 5 BayPAG,
and to contradict this limitation in order to establish a general police search interest
separate from these purposes. Rather, the breadth of the data records named in
Art. 33(2) third sentence BayPAG must be interpreted in conformity with the Constitution, as an overall description of all potential data records authorised for crosschecking, in respect of all the different variations of automatic number plate recognition, and that the police must choose which data is relevant with regard to the
purpose of the measure. With this interpretation, the scope of the data records covered by Art. 33(2) third sentence BayPAG is not constitutionally objectionable.
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(c) This provision also satisfies the requirements with regard to specificity. In particular, the fact that Art. 33(2) third sentence BayPAG defines the data records authorised for cross-checking only abstractly rather than referring to specific data is not
objectionable under constitutional law. This neither constitutes an impermissible dynamic reference that would refer to both the current version and future versions of a
statute nor does it violate the requirement of specificity. Rather, the legislature has
made a sufficiently clear decision, the substance of which can be determined by way
of interpretation, and that restricts access to data records not specifically collected for
automatic number plate recognition purposes to that which is relevant. On this basis,
the specific selection from amongst the mentioned data records may be left up to the
authorities, who must exercise due discretion and consider the principle of proportionality in their selection. It is not incompatible with the Constitution that the authorities have a certain prerogative of assessment when making that selection.
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(3) For the rest, the proportionality of automatic number plate recognition as laid out
in the provision’s first option – subject to the procedural requirements with regard to
documentation applicable to all options – is sufficiently ensured.
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[…]
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To protect against the excessive spatial extension of the powers, the legislature has
further limited the extent of such measures insofar as they may not be carried out in
21/34
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