Provisions of the Länder Baden-Württemberg and Hesse on automatic number plate recognition are partially unconstitutional

Press Release No. 9/2019 of 05 February 2019

Order of 18 December 2018
1 BvR 2795/09, 1 BvR 3187/10

In an order published today, the First Senate of the Federal Constitutional Court held that the provisions governing police powers regarding automatic number plate recognition in the Länder Baden-Württemberg and Hesse are partially unconstitutional. The Court based its assessment on the standards set forth in another order issued on the same day (cf. Press Release No. 8/2019).

For the most part, both Länder (federal states) can base the respective provisions regarding number plate recognition on their legislative competence concerning protection against threats (Gefahrenabwehr). However, to the extent that the Land Baden-Württemberg authorises automatic number plate recognition to support police checkpoints and controlled areas established to apprehend criminal offenders, and thus for law enforcement purposes, it already lacks legislative competence for provisions authorising the establishment of these checkpoints and controlled areas as such. Accordingly, number plate recognition measures tied to such checkpoints and controlled areas violate formal constitutional requirements. The Hessian provisions regarding automatic number plate recognition at police checkpoints established to prevent criminal offences under assembly law, and, in turn, the provisions authorising the establishment of these checkpoints are also formally unconstitutional. These provisions interfere with Art. 8 of the Basic Law (Grundgesetz – GG), yet do not satisfy the requirement laid down in Art. 19(1) second sentence GG to expressly specify affected fundamental rights.

The provisions also do not satisfy the principle of proportionality in every respect. In both Länder, automatic number plate recognition is not sufficiently limited to the protection of legal interests of considerable weight. In addition, it is not permissible under constitutional law to authorise, as is the case in both Länder, number plate recognition in the context of random sweep searches (Schleierfahndung) without clear border-related restrictions. The provisions governing the scope of data cross-checking are not objectionable. Contrary to the practice in both Länder, however, they must be interpreted restrictively and in conformity with the Constitution, which requires that cross-checking be limited to those data records that are suitable for the specific purpose pursued by a number plate recognition measure.

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:

The challenged provisions authorise police in Baden-Württemberg and Hesse to covertly record number plates of passing vehicles using number plate reading devices, and to cross-check them against number plates of persons sought by the authorities (for a more detailed description see Press Release No. 8/2019 regarding similar provisions in Bavaria, issued on the same day). In contrast to Bavarian practice, the process of creating the database for cross-checking in Baden-Württemberg and Hesse does not differ according to the purpose pursued by a number plate recognition measure. The data records used for cross-checking, based in particular on alerts of the Schengen Information System, are always the same irrespective of the purpose pursued by number plate recognition in a particular case.

With their constitutional complaints, the complainants directly challenge the provisions on number plate recognition in the respective Land police laws (constitutional complaint against statutes, Rechtssatzverfassungsbeschwerde). The complainants are registered owners of cars, which they regularly use on the streets of Baden-Württemberg and Hesse. They claim that it was therefore very likely that they would be subject to a number plate recognition measure without noticing it. They argue that these measures amounted to interferences with their fundamental right to informational self-determination. They contend that these interferences could not be justified given that the statutory bases for automatic number plate recognition were formally unconstitutional and violated the constitutional principles of legal specificity and of proportionality.

Key considerations of the Senate:

I. The constitutional complaints are admissible, even though the complainants have not exhausted all legal remedies before the regular courts.

Under the principle of subsidiarity, complainants are in principle obliged to use any means at their disposal that might remedy the asserted violation of fundamental rights. Regarding constitutional complaints that directly challenge a law, this may also include a declaratory action or an application for injunctive relief. This applies even if the best possible outcome of a review by the regular courts for the complainant is that the challenged law is referred to the Federal Constitutional Court pursuant to Art. 100(1) GG. In this respect, it is decisive whether prior review by the regular courts is necessary to avoid a situation in which the Federal Constitutional Court has to decide on an uncertain factual and legal basis. At the same time, the obligation to first seek recourse to the regular courts must not lead to unpredictable risks for complainants regarding their possible courses of action and regarding applicable statutory time limits. Thus, the interpretation of admissibility requirements in constitutional complaint proceedings must ensure effective legal protection.

According to these considerations, the complainants would in principle have been obliged to lodge applications for injunctive relief against number plate recognition with the regular courts. However, this was not reasonable (zumutbar) in the present case given that in its last decision on the same subject matter, and under the same procedural circumstances, the Federal Constitutional Court did not even consider the possibility of such an application. Moreover, the regular courts, including the Federal Administrative Court (Bundesverwaltungsgericht), have in the meantime pronounced on the key issues put forward by the complainants; therefore, compelling them to exhaust all legal remedies would no longer serve to enhance the factual and legal information available to the Court for assessing the challenged provisions.

II. The constitutional complaints are in part well-founded.

1. Based on the standards the Court developed in its order, issued on the same day, regarding similar provisions in the Free State of Bavaria, the challenged provisions interfere with the complainants’ fundamental right to informational self-determination under Art. 2(1) in conjunction with Art. 1(1) GG (cf. Press Release No. 8/2019).

2. For the most part, there are no objections to the formal constitutionality of the challenged provisions. In both Länder, the provisions on number plate recognition mostly serve the purpose of protecting against threats, a matter for which the Länder have legislative competence.

However, the fact that Baden-Württemberg authorises automatic number plate recognition to support police checkpoints and controlled areas established to apprehend criminal offenders is formally incompatible with the Constitution. In this respect, the Land already lacks legislative competence for enacting the provision authorising the establishment of this type of checkpoints and areas in the first place. These powers fall within the ambit of law enforcement, a matter for which the Federation has concurrent legislative competence, which it has exhaustively exercised in this regard. Consequently, the Land provision on number plate recognition in connection with police checkpoints is also unconstitutional as it fails to set out a sufficiently specific and limited statutory basis, given that it merely refers to the unconstitutional Land provision in its constituent elements.

To the extent that their purpose is to support police checkpoints established to prevent criminal offences under assembly law, the Hessian provisions on automatic number plate recognition are also formally incompatible with the Constitution, together with the provision authorising the establishment of checkpoints as such. The legislature may provide for such checks. However, given the resulting interference with freedom of assembly under Art. 8 GG, the relevant provisions must expressly specify the affected fundamental right and the relevant article of the Basic Law (principle that statutory provisions must expressly specify affected fundamental rights, Zitiergebot, cf. Art. 19(1) second sentence GG). The challenged provisions do not satisfy this requirement.

3. Under substantive constitutional law, the challenged provisions do not satisfy the requirements derived from the principle of proportionality in every respect. In this assessment, the Court draws on the constitutional standards applicable to police checks that are set out in the order regarding similar provisions in Bavaria, which is also published today (cf. Press Release No. 8/2019).

a) With regard to the constituent element of providing general protection against a danger to public security and order, the provisions on number plate recognition in Baden-Württemberg and Hesse lack a limitation to protecting legal interests of at least considerable weight, or comparable public interests.

b) To the extent that the provisions of both Länder authorise automatic number plate recognition in the context of random sweep searches, they do not ensure that such measures may only be taken in locations that have a sufficiently clear connection to the border. In Baden-Württemberg, the use of random sweep searches is generally permissible on routes on the entire Land territory provided that they are of considerable significance for cross-border criminal activity; thus, the necessary connection to the border is neither sufficiently specific nor subject to sufficient limitations with regard to automatic number plate recognition. Similarly, the Hessian provisions do not satisfy these requirements, to the extent that they authorise random sweep searches on all routes on the entire Land territory for the purpose of fighting cross-border crime.

c) For the rest, the statutory requirements for conducting automatic number plate recognition measures in both Länder, which essentially follow from the statutory reference to the respective provisions of Land law on identity checks, are not objectionable under constitutional law; constitutional standards are satisfied with regard to both the requirement that the measure be tied to a sufficiently specific cause for intervention in a particular case and the requirement that the measure serve the protection of sufficiently weighty legal interests. This holds true for the statutory authorisation to carry out checks in dangerous or vulnerable places, to protect particularly vulnerable persons, and to support police checkpoints established to prevent particularly serious crimes, provided that the establishment of such checkpoints is contingent upon the existence of a specific danger.

d) However, the provisions governing the cross-checking of recognised number plates with database records require a restrictive interpretation in conformity with the Constitution. They must be read to the effect that number plates may only be cross-checked against those data records that are relevant to the specific purpose pursued by the particular number plate recognition measure. The understanding to the contrary that is applied in current police practice, which became evident in the present proceedings, does not satisfy these requirements.

e) The provisions governing the use of recorded data for other purposes do not satisfy the constitutional requirements applicable to a change in purpose regarding data use (Zweckänderung). According to the test of hypothetical data recollection, the use of the information obtained beyond the statutorily defined purposes is only permissible if the new purpose would also have justified the obtaining of the relevant data again by comparably intrusive means. Neither the provisions in Baden-Württemberg nor the provisions in Hesse sufficiently ensure that this requirement is met.