authorities, only contains those number plates numbers related to the specific purpose for which the number plate recognition measure is carried out. If cross-checking
does not result in a match (“no match”), the respective data including the recorded
number plate is deleted from the system automatically and without undue delay. In
case the system identifies a match, a police officer visually checks on a computer
screen whether the captured image of the number plate indeed matches the number
plate from the respective database record. If that is not the case, for example
because the automatic reading of the number plate was incorrect (“false positive
match”), the entire process is manually deleted by the police officer. If there is a correct match (“true positive match”), the data is kept on record and further police measures may be taken.
The complainant has a primary residence in Bavaria and another residence in Austria. He is a registered vehicle owner and uses his car to travel between his residences and on federal motorways in Bavaria. Fearing that he might become subject
to automatic number plate recognition measures as authorised by the Bavarian provisions, he filed an application with the Administrative Court (Verwaltungsgericht),
seeking an order that the Free State of Bavaria refrain from using number plate reading systems to record the number plates of any vehicle registered to him, and from
cross-checking them against police database records. He thus indirectly challenged
the statutory provisions governing automatic number plate recognition.
The Administrative Court and the Bavarian Higher Administrative Court (Verwaltungsgerichtshof) held that the application for injunctive relief was admissible but unfounded. The Bavarian Higher Administrative Court held that in the event of a “no
match”, the measures did not amount to an interference with fundamental rights at
all, given that the data was deleted automatically and without undue delay. However,
the sufficient probability that the measure might result in a false positive match, was
held to constitute an interference with the right to informational self-determination.
Yet according to the court, the interference had a constitutional statutory basis given
the relevant provisions on number plate recognition.
The Federal Administrative Court (Bundesverwaltungsgericht) rejected the complainant’s appeal on points of law against this decision as unfounded on the grounds
that an interference with fundamental rights arose neither in the event of no matches
nor in the event of false positive matches. It reasoned that in case of a false positive
match, the police officer only took note of the number plate information in order to
account for the imperfect nature of the automatic reading system by deleting the
falsely matched data without undue delay. It held that it was impossible for the complainant’s number plate to yield a true positive match, given that it was not stored in
any police database record. As the Federal Administrative Court thus ruled out any
potential interference with the complainant’s fundamental rights, the question
whether the indirectly challenged provisions were constitutional was considered irrelevant; the court therefore refrained from making an assessment in this regard.
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