frequency and selectivity of the measures; the provisions must be amended to
comply with this requirement (cf. Baden-Württemberg Higher Administrative Court,
Verwaltungsgerichtshof Baden-Württemberg, Judgment of 13 February 2018 – 1 S
1468/17 –, juris, para. 76 et seq. and 86; Judgment of 13 February 2018 – 1 S 1469/
17 –, juris, para. 38 et seq. and 43 – on the relevant questions concerning the Federal Police Act – Bundespolizeigesetz). Insofar, the standards of EU law subject the
power to carry out measures to further requirements and thereby contribute to its proportionality.
ff) For the most part, the challenged provisions satisfy the overarching standards
regarding transparency, individual legal protection and supervisory measures that follow from the principle of proportionality. However, it is objectionable under constitutional law that the statutory framework does not require documentation on the part of
the authorities.
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(1) It is constitutionally unobjectionable that automatic number plate recognition is
generally carried out covertly (cf. Art. 33(2) second sentence BayPAG). This is suitable and necessary for achieving the purposes aimed for and it is justified by them.
Unlike covert surveillance measures, which have a high intensity of interference (cf.
BVerfGE 141, 220 <269 para. 105 and 282 and 283 para. 134 et seq.>), covert automatic number plate recognition does not as such require an obligation to notify about
the measure. This also applies in case of a match. Rather, in view of proportionality,
it is sufficient that the affected persons are informed of the automatic number plate
recognition only within the scope of follow-up measures taken against them and that
they may then have the lawfulness of the automatic number plate recognition reviewed by a regular court. It must further be considered that beyond this, the general
right to information under data protection law also exists (cf. Art. 48 BayPAG), even
if in practice it will only exceptionally be of use in the context of automatic number
plate recognition.
154
(2) As required under constitutional law (cf. BVerfGE 65, 1 <46>; 67, 157 <185>;
133, 277 <369 and 370 paras. 214 and 215>; 141, 220 <284 para. 141>; established
case-law), the Act provides for supervisory measures. In addition to technical administrative supervision, data protection oversight by the Bavarian data protection officer
is ensured (Art. 49 BayPAG in conjunction with Art. 30 of the Bavarian Data Protection Act, Bayerisches Datenschutzgesetz – BayDSG).
155
(3) In contrast, it is not compatible with the principle of proportionality that the Act
does not provide for an obligation to document the basis on which a decision to use
automatic number plate recognition was taken.
156
Particularly relevant for this is the fact that the decision to carry out automatic number plate recognition – unlike in the case of administrative acts requiring justification
– is not and cannot be communicated to the persons concerned. Conducted as a
covert measure, automatic number plate recognition only becomes known in case of
a match and even then, the grounds for the measure are, in principle, not stated. In
157
30/34