further tasks beyond the purpose of the individual number plate recognition measure,
this constitutes a change in purpose that does not fully satisfy the constitutional requirements.
In any case, such a change in purpose is present where use of the information is
authorised generally and for all the purposes for which the police data records were
compiled or databases created. The idea is to enable the police to use coincidental
findings resulting from number plate recognition, meaning that the police could take
measures with regard to persons or objects that were identified without contributing
to the original purpose of the number plate recognition measure.
163
Authorising such use is in principle not objectionable under constitutional law. It constitutes a new interference because the use of data is extended to new purposes,
which may be justified and, in principle, is indeed justified by the purposes of the
search. The fact that the searches are law enforcement measures falling within the
legislative competence of the Federation also does not make the provision constitutionally objectionable. The authorisation only makes it possible to use the information
for further purposes but does not finally govern its use; if necessary, the federal legislature will finally decide on the use of this data for new purposes within the scope of
this authorisation (see para. 80 above).
164
It is, however, constitutionally required that, in respect of a change in purpose, it
would also have had to be permissible – on the basis of the changed purpose – to
use comparably intrusive investigation measures to obtain the data in question pursuant to constitutional standards (cf. BVerfGE 141, 220 <327 and 328 para. 286 and
287> with further references; established case-law). Therefore, data use for further
purposes is only proportionate if the new purpose serves the protection of legal interests that would also have justified the carrying out of a number plate recognition measure. In accordance with the criteria developed above, this is, in principle, only the
case in respect of the protection of legal interests of at least considerable weight or
comparably weighty public interests (see para. 99 above), which in criminal law terms
means for the prosecution of criminal offences of at least considerable importance.
Since Art. 38(3) second sentence BayPAG does not fulfil this requirement in that it
provides for data use for further purposes, this provision is not compatible with the
Constitution in this regard.
165
(3) In contrast, Art. 38(3) third sentence BayPAG is not constitutionally objectionable in that it specifies that the individual pieces of data collected may not be combined with other data to create a movement profile except in the case described in
Art. 33(2) third sentence no. 2 letter a BayPAG. Cross-checking with databases pursuant to the latter provision intentionally refers to the carrying out of a specific observation over a longer period of time and thus, in a limited sense, also the creation of a
– limited – movement profile. In principle, this may be constitutionally justified insofar
as the relevant requirements are satisfied (cf. BVerfGE 120, 378 <416 et seq.>). Insofar, Art. 38(3) third sentence BayPAG only makes affirmative reference to the pro-
166
32/34