Automatic number plate recognition pursuant to the Bavarian Police Act is partially unconstitutional

Press Release No. 8/2019 of 05 February 2019

Order of 18 December 2018
1 BvR 142/15

In an order published today, the First Senate of the Federal Constitutional Court held that automatic number plate recognition pursuant to the Bavarian Police Act (Bayerisches Polizeiaufgabengesetz – BayPAG) is partially unconstitutional on the grounds that it violates the right to informational self-determination. The use of automatic number plate recognition as provided for under the Act amounts to an interference with fundamental rights for all persons whose number plates are recorded and cross-checked against database records, irrespective of whether the measure yields a match (this assessment marks a change in the Court’s case-law). These interferences are only partially justified.

For the most part, the Free State of Bavaria has legislative competence in respect of the challenged provisions. The Länder (federal states) are competent to legislate on number plate recognition used for public security purposes, even though the measures may ultimately also serve law enforcement purposes for which the Federation has concurrent legislative competence. However, the Bavarian provisions violate the constitutional division of competences to the extent that they authorise number plate recognition that directly serves border protection purposes.

In accordance with the principle of proportionality, the use of automatic number plate recognition is, in principle, permissible only on sufficiently weighty grounds. The challenged provisions do not satisfy this requirement to the extent that the authorised measures are not limited to the protection of legal interests of at least considerable weight, and to the extent that they do not require a sufficiently specific link to the border in the event that automatic number plate recognition is used in random sweep searches (Schleierfahndung). It is not objectionable that the provisions authorise automatic number plate recognition as a supporting measure for police checkpoints, given that, based on a reasonable interpretation, establishing such checkpoints in itself requires a specific danger and thus grounds justifying it. The provisions governing the cross-checking of recorded number plates against database records of vehicles of interest (Fahndungsbestände) must be interpreted restrictively and in conformity with the Constitution to the effect that number plates may only be cross-checked against such data that is actually suitable for protecting against the very danger which prompted the ordering of number plate recognition in the specific case. Lastly, the statutory framework fails to set out an obligation of the authorities to document on what basis a decision to use number plate recognition was taken.

The Court ordered that for the most part, the unconstitutional provisions continue to apply for a transitional period, but no longer than 31 December 2019.

Facts of the case:

Bavarian police are authorised to use automatic number plate recognition. In this regard, the number plates of passing vehicles are covertly and automatically recorded by means of number plate reading devices; the recorded data is temporarily stored together with information on location, date, time and direction of travel, and cross-checked against number plate information in police database records. To this end, a separate database is set up which, in the practice of Bavarian authorities, only contains 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 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.

With his constitutional complaint, the complainant claims that the court decisions violate his fundamental right to informational self-determination under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG). He contends that in holding that no matches or false positive matches did not amount to an interference with fundamental rights, the courts failed to sufficiently recognise the scope of protection of the right to informational self-determination. Being subjected to number plate recognition in itself already amounts to an interference with fundamental rights. He argues that the relevant statutory provisions are formally unconstitutional, given that they do not serve public security but law enforcement purposes, a matter for which the Federation has legislative competence. Furthermore, he claims that the statutory provisions governing number plate recognition violate the constitutional requirements of legal specificity and of proportionality.

Key considerations of the Senate:

I. The constitutional complaint is admissible, but only in part well-founded. The challenged decisions violate the complainant’s fundamental right to informational self-determination under Art. 2(1) in conjunction with Art. 1(1) GG.

II. The right to informational self-determination accounts for both risks to and violations of one’s personality that individuals face due to information-related measures, in particular in the context of modern data processing. It already affords protection as soon as a risk to the right of personality arises. This protection covers all personal data, regardless of whether it has only marginal informational value, and whether it is sensitive or publicly accessible. Accordingly, there simply is no insignificant personal data in the context of modern data processing.

Interference with fundamental rights

III. In the context of automatic number plate recognition, the recording of number plates, the cross-checking of the data against police records, and its subsequent use, respectively, each amount to an interference with the fundamental right to informational self-determination. In this regard, both false positive matches and no matches also constitute an interference. To the extent that this contradicts the decision of the First Senate of 11 March 2008 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 120, 378), the Court no longer upholds that view.

Nevertheless, according to the Court’s case-law, an interference is not ascertainable in cases where data is recorded unintentionally and exclusively for technical reasons, and then deleted immediately after it was recorded anonymously, without leaving traces and without any interest on the part of authorities in obtaining knowledge thereof. The Court upholds this view. The decisive factor is whether, in an overall assessment based on the purpose of the surveillance measure and the intended data use, the interest of the authorities in specific data records has already taken such specific shape that the persons concerned must be regarded as being directly affected in such a way that it qualifies as an interference with fundamental rights.

These conditions are met with regard to all persons that are subject to automatic number plate recognition. The inclusion of data that does not yield a match is not unintentional and does not merely occur for technical reasons; rather, it is a necessary and intended part of these measures as they would otherwise not achieve their purpose. The fact that the persons concerned face no inconveniences or consequences if there is no match does not merit a different conclusion. It does not change the fact that the persons concerned are checked by the authorities to determine whether they are persons of interest, and that they can only continue their journey unhindered if the police records do not contain relevant information on them. In view of this, it is not just the consequences of the measure, but the measure as such that results in impairments to the freedom of the persons concerned. It is integral to a free society that anyone may in principle move freely, without having their movements arbitrarily registered by the state, without having to prove their integrity as law-abiding citizens, and without constantly feeling under surveillance.

Formal constitutionality

IV. The challenged provisions are for the most part compatible with formal constitutional requirements. Since the provisions fall within the ambit of public security, the Länder have legislative competence. In particular, the Bavarian provisions on number plate recognition do not serve law enforcement purposes, a matter for which the Federation has concurrent legislative competence. To distinguish between provisions concerning public security on the one hand and law enforcement on the other, the specific legislative purpose must be accurately determined. In Bavaria, number plate recognition is only allowed in cases in which identity checks would be permissible, on grounds of public security. Accordingly, number plate recognition serves to protect against dangers arising in specific cases, to combat the emergence and development of dangerous places, to protect vulnerable places, to support police checkpoints, and as a means in random sweep searches to fight cross-border crime or to prevent or suppress unlawful residence. In addition, the Länder have legislative competence for regulating changes to the purposes for which the data may be used (Zweckänderung). This does not amount to a definitive decision directly authorising further data use – it only opens up the possibility of further uses, which in turn require further statutory specification.

However, the Free State of Bavaria does not have legislative competence insofar as the reference to Art. 13(1) no. 5 of the Bavarian Police Act (Bayerisches Polizeiaufgabengesetz – BayPAG) authorises the use of automatic number plate recognition for the purposes of preventing or terminating unlawful border crossings. This option set out in the provision concerns border protection, for which the Federation has exclusive legislative competence pursuant to Art. 73(1) no. 5 GG. By contrast, the use of number plate recognition to prevent or suppress unlawful residence and to fight cross-border crime, as authorised by the two other options set out in Art. 13(1) no. 5 BayPAG, does not raise objections with regard to the division of legislative competences given that it concerns matters of public security.

Substantive constitutionality

V. Under substantive constitutional law, the legislative framework on automatic number plate recognition is subject to requirements derived from the principle of proportionality.

1. In accordance with this principle, police measures conducted in public spaces in search of specific persons or objects generally require objectively defined and restricted grounds. In principle, carrying out arbitrary checks at any time and place is incompatible with the rule of law. The legislature must define a threshold for the exercise of powers which makes state action subject to foreseeable conditions that allow for review of compliance. This threshold may include dangers arising in individual cases, generalised situations of danger, or situations in which specific circumstances increase the likelihood of finding persons or objects of interest. Yet measures ordered in this context must always be justified by sufficient grounds supported by facts. Such measures must be distinguished from situations in which police checks – in contrast to the present case – target dangerous or risky activities, as is the case for road traffic checks or in the various fields of environmental or public trade and commerce regulations. In those cases, even police checks without specific grounds may be justified under constitutional law.

2. Furthermore, number plate recognition must be justified by the protection of sufficiently weighty legal interests when measured against the resulting interference with fundamental rights. Given the weight of interference, automatic number plate recognition is only permissible if it serves to protect legal interests of at least considerable weight, or comparably weighty public interests. These include life, limb and liberty of the person and the existence and security of the Federation and of the Länder. In addition, they may also include the protection of considerable material assets. The legislature can specify further details regarding the threshold for the exercise of powers.

3. In an overall balancing, any legislative framework on number plate recognition must be reasonable (zumutbar) with regard to the right to informational self-determination. Moreover, the requirements regarding transparency, individual legal protection and administrative oversight must be satisfied, and provisions governing data use and deletion must be in place.

VI. The challenged provisions do not satisfy these requirements in every respect.

1. To the extent that the Bavarian Police Act provides for number plate recognition to generally protect against specific dangers, it lacks a limitation to the protection of legal interests that are at least of considerable weight, or comparably weighty public interests.

2. The authorisation to carry out number plate recognition in dangerous and vulnerable places is not objectionable under constitutional law – provided that the provisions are interpreted and applied in conformity with the Constitution.

3. To the extent that number plate recognition is authorised at police checkpoints, it satisfies constitutional standards given that, based on a reasonable interpretation, the statutory provisions for establishing a checkpoint as such already require a specific danger. Thus, it is tied to a sufficiently specific grounds. According to the challenged provision, checkpoints may only be established to prevent serious crimes and certain criminal offences under assembly law, thus protecting legal interests of considerable weight. To the extent that checkpoints control access to an assembly, the provisions also interfere with freedom of assembly under Art. 8 GG. However, they satisfy the relevant constitutional requirements in this respect.

4. In principle, the use of automatic number plate recognition in random sweep searches is also compatible with the Constitution. It is true that the police power to conduct this type of search is only defined in definitive terms by the broad objective pursued; given this broad scope and complete lack of specific grounds, it is in principle not compatible with constitutional requirements. However, in the present case it is justified by the special situation arising from the abolition of border checks within the European Union, as it ensures security by compensating for the lack of internal border checks. Yet, it is imperative that this type of search measure be subjected to consistent and clear limitations regarding its purpose and location that correspond to these considerations. The challenged provisions do not fully satisfy these requirements. To the extent that the use of automatic number plate recognition is authorised within an area of 30 km from the border or at public facilities serving international traffic, the provisions are not objectionable under constitutional law. By contrast, the authorisation to generally carry out such measures on transit routes on the entire Land territory is not sufficiently specific nor subject to sufficient limitations; it lacks the required clear link to the border. In the assessment whether the provisions satisfy the principle of proportionality, the restrictive standards of European Union law must also be taken into account; according to the case-law of the regular courts, the legislature must give effect to these standards.

5. For the most part, the challenged provisions satisfy the requirements regarding transparency, individual legal protection and administrative oversight. However, it is objectionable under constitutional law that the statutory framework does not provide for an obligation to document on what basis a decision to use covert and automatic number plate recognition was taken. Such mandatory documentation would promote self-regulation, allow for oversight by the Land Data Protection Officer (Landesdatenschutzbeauftragter) and facilitate review by the administrative courts.

6. Based on an interpretation in conformity with the Constitution, not all police database records provided for in the Bavarian Police Act may be used for cross-checking number plates; rather, only data may be used that is relevant to the specific purpose pursued by the particular number plate recognition measure. In this interpretation, the challenged provisions are not objectionable under constitutional law regarding the authorisation of data cross-checking. The abstract description of database records that may be used for cross-checking, as set out in the challenged provisions, satisfies constitutional requirements regarding legal specificity.

7. To the extent that the challenged provisions authorise the use of the data for purposes other than those that prompted the measure, and thus allow in particular for the use of coincidental findings, they do not fully satisfy constitutional requirements. In accordance with constitutional standards, a change in purpose (Zweckänderung) may in principle be permissible. This requires, however, that it would still have been permissible on the basis of the changed purpose to use comparably intrusive investigation measures to again obtain the data in question. Therefore, the data may only be used for further purposes if the new purpose serves the protection of legal interests that would also have justified the ordering of number plate recognition. This is not ensured by the Bavarian provisions in relation to the further use of data stemming from number plate recognition.

VII. At the time the Federal Administrative Court rendered its now challenged decision, number plate recognition was based on Art. 33(2) second to fifth sentences, Art. 13(1) nos. 1 to 5 and Art. 38(3) BayPAG. Subsequently, Art. 33(2) second to fifth sentences and Art. 38(3) BayPAG were merged into a new Art. 39(1) and (3) first to third sentences BayPAG, with essentially the same wording and only minor editorial changes. Both the provisions applicable at the time of the Federal Administrative Court decision and the subsequent provisions were declared partially unconstitutional by the First Senate of the Federal Constitutional Court.