The provision does not satisfy this requirement in every respect.
(a) Art. 33(2) second to fifth sentences, Art. 13(1) no. 5 BayPAG authorise the use
of automatic number plate recognition within 30 km from the border, on transit routes,
and at public facilities serving international traffic. Such measures are permitted to
prevent or suppress unlawful residence and to combat cross-border crimes subject
to relevant information being present.
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This gives the provision a broad scope. Its general purpose is to combat violations
of the law on residency and cross-border crime without limiting the automatic number
plate recognition measures to the prevention of acts qualified as significant criminal
offences or to the protection of legal interests of a specified weight. Nor does it limit
the measures to objectively specified grounds. While the provision refers generally to
the requirement that relevant information on the situation must be present in order to
carry out automatic number plate recognition, it fails to specify the criteria based on
which that relevant information is to justify the measures. Ultimately, the police power
to carry out this measure is only defined by the broad objective pursued. Such power
to carry out measures practically without specific grounds is – insofar as it does not
require specific responsibility of the persons concerned (see para. 94 above) – in
principle incompatible with constitutional requirements. Thus, it can only be justified
under special conditions.
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(b) Such a justification is that the provision serves to offset the abolition of border
checks within the European Union.
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The legislature introduced the random sweep search to offset the abolition, under
European law, of border checks within the European Union (cf. Landtag of Bavaria
document 13/36, p. 4). According to domestic law, these border checks could be carried out without further grounds. The right of a state to carry out checks at its borders
without further conditions in order to decide who enters and leaves the country belongs to the traditional instruments used to ensure territorial sovereignty and to guarantee law and security in its national territory. If the Federal Republic of Germany
opens its borders and abolishes border checks based on European Union law, it is
principally justified in offsetting this by specifically extending the general powers with
regard to public security.
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This is not altered by the fact that the automatic number plate recognition measures
are not limited to persons crossing the border, thereby affecting persons who did not
cross the border. These measures are only intended as and only can be an offset
measure concerning security, not a different form of border check. This already follows from European Union law, which establishes the abolition of border checks in
Art. 67(2), Art. 77(1) letter a TFEU (for further details cf. Art. 20 and 21 of [EC] Regulation no. 562/2006 of 15 March 2006 [Schengen Borders Code], OJ L 105 of 13 April
2006, p. 1; today: Art. 22 and 23 of [EU] Regulation no. 2016/399 of 9 March 2016
[Schengen Borders Code], OJ L 77 of 23 March 2016, p. 1). In this context, the Court
of Justice of the European Union repeatedly held that checks on persons not sus-
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