Opinion of the Advocate General — ECLI:EU:C:2021:991
Date: 2021-12-09
Language of the case: Lithuanian
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 April 2020 
Referring court: 
Vilniaus apygardos administracinis teismas (Lithuania) 
Date of the decision to refer: 
31 March 2020 
Applicant: 
OT 
Defendant: 
Vyriausioji tarnybinės etikos komisija (Chief Official Ethics 
Commission) 
      
Subject matter of the action in the main proceedings 
The obligation imposed in national law on persons working in the national civil 
service to declare private interests. The publication of the data relating to 
declarations on the Internet. Possible infringement of the right to private life. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Article 6(1)(e), in conjunction with Article 6(3), of Regulation 
(EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on 
the protection of natural persons with regard to the processing of personal data 
and on the free movement of such data, and repealing Directive 95/46/EC (the 
General Data Protection Regulation) (hereinafter also ‘the Regulation’) and of 
Article 9(1) of the Regulation, in conjunction with Article 9(2)(g) thereof, in the 
light of Articles 7 and 8 of the Charter of Fundamental Rights of the European 
Union (hereinafter also ‘the Charter’). 
EN 
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Questions referred 
1. Must the condition laid down in Article 6(1)(e) of the Regulation that 
processing is necessary for the performance of a task carried out in the public 
interest or in the exercise of official authority vested in the controller, with regard 
to the requirements laid down in Article 6(3) of the Regulation, including the 
requirement that the Member-State law must meet an objective of public interest 
and be proportionate to the legitimate aim pursued, and also with regard to 
Articles 7 and 8 of the Charter, be interpreted as meaning that national law may 
not require the disclosure of declarations of private interest and their publication 
on the website of the controller, the Vyriausioji tarnybinės etikos komisija (Chief 
Official Ethics Commission), thereby providing access to those data to all 
individuals who have access to the Internet? 
2. Must the prohibition of the processing of special categories of personal data 
established in Article 9(1) of the Regulation, regard being had to the conditions 
established in Article 9(2) of the Regulation, including the condition established in 
point (g) thereof that processing must be necessary for reasons of substantial 
public interest, on the basis of EU or Member-State law which must be 
proportionate to the aim pursued, must respect the essence of the right to data 
protection and must provide for suitable and specific measures to safeguard the 
fundamental rights and the interests of the data subject, be interpreted, also with 
regard to Articles 7 and 8 of the Charter, as meaning that national law may not 
require the disclosure of data relating to declarations of private interests which 
may disclose personal data, including data which make it possible to determine a 
person’s political views, trade-union membership, sexual orientation and other 
personal information, and their publication on the website of the controller, the 
Vyriausioji tarnybinės etikos komisija, providing access to those data to all 
individuals who have access to the Internet? 
Provisions of EU law cited 
Articles 7 and 8 of the Charter of Fundamental Rights of the European Union; 
recitals 1, 2, 4, 26, 39, 51, 85 and 154, Article 4(1), Article 6(1)(c) and (e), Article 
6(3) and Article 9(1) and (2) of Regulation (EU) 2016/679 of the European 
Parliament and of the Council of 27 April 2016 on the protection of natural 
persons with regard to the processing of personal data and on the free movement 
of such data, and repealing Directive 95/46/EC (the General Data Protection 
Regulation) (OJ L 119, 4.5.2016, p. 1). 
Provisions of national law cited 
Article 1, Article 2(1), Article 3(2), Article 4(1), Article 5, Article 6(1), Article 
10(1) and (2) and Article 22 of the Law of the Republic of Lithuania on the 
Coordination of Public and Private Interests in the Civil Service (hereinafter ‘the 
Law’) (version in force from 1 January 2018 to 18 December 2019). 
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Succinct presentation of the facts and procedure in the main proceedings 
1 On 6 March 2018, the applicant brought an action before the Vilniaus apygardos 
administracinis teismas (Vilnius Regional Administrative Court), requesting it to 
declare unlawful and to annul the decision of the Vyriausioji tarnybinės etikos 
komisija (Chief Official Ethics Commission) (hereinafter ‘the Commission’) of 
7 February 2018 (hereinafter ‘the Decision’) finding that the applicant had 
infringed the provisions of Article 3(2) and Article 4(1) of the Law (the obligation 
to declare private interests) by failing to submit a declaration of private interests in 
accordance with the procedure established thereby. 
2 The applicant holds the position of Director of the public establishment QP, a 
public body active in the field of environmental protection (hereinafter QP). QP 
has participated in public-procurement procedures and has received co-financing 
from the budget of the Republic of Lithuania for the implementation of certain 
projects of the European Union’s LIFE + Programme. 
Principal arguments of the parties in the main proceedings 
3 The applicant submits that he is not subject to the provisions of the Law governing 
the obligation to declare private interests. As Director of QP, he has no powers of 
public administration. The founders and members of QP are private individuals. 
No functions of state or municipal institutions have been delegated to QP. As a 
non-governmental organisation, it operates independently of any authorities. 
4 According to the applicant, the Commission has unreasonably equated him with a 
person employed in the civil service and holding administrative powers. 
5 The applicant claims that the content of the declaration of private interests and its 
practically unconditional publication in the public domain (on the Commission’s 
website) essentially obliges a declarant to disclose not only his own personal data 
but also personal data relating to other persons, thereby infringing the right to 
private life. 
6 The defendant contends that the action should be dismissed as unfounded. It 
submits that persons who meet the following conditions are also considered in the 
Law (Article 2(1)) to be persons in the civil service: (1) persons who are 
employed at public establishments; (2) the public establishments are financed out 
of the Lithuanian national or municipal budget and funds; (3) those persons have 
administrative powers vested in them. The defendant submits that the applicant 
meets all of those conditions. It explains that administrative powers may be not 
only public, external (functions of a government representative), but also internal, 
which are granted to persons holding managerial positions in companies, 
institutions and organisations, regardless of whether powers of public 
administration have been vested in them. Administrative powers are associated 
with the supervision of the establishment’s activities, control of the work of 
subordinates and its organisation, financial management, and suchlike. The 
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applicant has been granted administrative powers in QP. He is the sole 
management body of QP; the activities of QP are constantly financed out of the 
European Union Structural Funds and out of the funds of the state budget of the 
Republic of Lithuania; therefore, the applicant must declare private interests. 
Brief summary of the reasons for the referral 
7 According to Article 7 of the Charter, everyone has the right to respect for his or 
her private and family life, home and communications. According to Article 8 of 
the Charter, everyone has the right to the protection of personal data concerning 
that person. Such data must be processed fairly for specified purposes and on the 
basis of the consent of the person concerned or some other legitimate basis laid 
down by law. Everyone has the right of access to data which have been collected 
concerning him or her, and the right to have those data rectified. 
8 Article 6(1) of the Regulation lays down the conditions under which processing of 
data is lawful. Such conditions include the following: processing is necessary for 
compliance with a legal obligation to which the controller is subject (point (c)); 
processing is necessary for the performance of a task carried out in the public 
interest or in the exercise of official authority vested in the controller (point (e)). 
9 Article 6(3) of the Regulation provides that the basis for the processing referred to 
in points (c) and (e) of paragraph 1 are to be laid down by: (a) EU law or (b) 
Member-State law to which the controller is subject. The purpose of the 
processing is to be determined on that legal basis or, as regards the processing 
referred to in point (e) of paragraph 1, must be necessary for the performance of a 
task carried out in the public interest or in the exercise of official authority vested 
in the controller. That legal basis may contain specific provisions to adapt the 
application of rules of the Regulation, inter alia: the general conditions governing 
the lawfulness of processing by the controller; the types of data which are subject 
to the processing; the data subjects concerned; the entities to which, and the 
purposes for which, the personal data may be disclosed; the purpose limitation; 
storage periods; and processing operations and processing procedures, including 
measures to ensure lawful and fair processing such as those for other specific 
processing situations as provided for in Chapter IX. The EU or the Member-State 
law must meet an objective of public interest and must be proportionate to the 
legitimate aim pursued. 
10 Article 9(1) of the Regulation provides that processing of personal data revealing 
racial or ethnic origin, political opinions, religious or philosophical beliefs, or 
trade-union membership, and the processing of genetic data, biometric data for the 
purpose of uniquely identifying a natural person, data concerning health or data 
concerning a natural person’s sex life or sexual orientation is to be prohibited. 
11 Article 9(2) of the Regulation lays down the conditions under which paragraph 1 
is not to apply. Such conditions include, inter alia, the condition that processing is 
necessary for reasons of substantial public interest, on the basis of EU or Member-
VYRIAUSIOJI TARNYBINĖS ETIKOS KOMISIJA 
 
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State law which must be proportionate to the aim pursued, respect the essence of 
the right to data protection and provide for suitable and specific measures to 
safeguard the fundamental rights and the interests of the data subject (point (g)). 
12 The Law (Article 10(1)) determines the persons whose declaration data are to be 
public and published on the website of the Chief Official Ethics Commission in 
accordance with the established procedure. The list of those persons includes 
heads and deputy heads of public establishments that are financed out of the 
Lithuanian national or municipal budget and funds. 
13 The contents of a declaration of private interests (Article 6(1) of the Law) in 
principle include data relating to the private life of the persons indicated therein: 
personal data (name, surname, place of employment, duties) of the declarant and 
his/her spouse, cohabitant, partner, from which information on certain aspects of 
the person’s private life (marital status, sexual orientation, and suchlike) can be 
identified, information on gifts received, transactions concluded by those persons, 
from which certain details of the life of the declarant and his/her spouse, 
cohabitant, partner can be identified, that is to say, objects used, interests, hobbies, 
lifestyle, financial situation, and so forth, information on persons close to or 
known to him/her or data which may cause a conflict of interest and may be liable 
to indicate the personal relationship between the declarant and his/her spouse, 
cohabitant or partner as well as the personal relationship between the persons who 
must be indicated and the declarant and his/her spouse, cohabitant, partner. 
14 Personal data contained in a declaration of private interests constitute an integral 
part of a person’s private life and their disclosure may breach the person’s right to 
private life and may affect his/her security, that is to say, disclosure of such data 
may endanger the person’s life and health, his/her other rights and freedoms, and 
cause other negative consequences for him/her. 
15 The declarant is obliged to disclose not only his/her personal data but also those of 
other persons, knowing that such data will be published on the Commission’s 
website and, therefore, will be available in principle to an unlimited number of 
persons and potentially used for a variety of purposes. The exceptions provided 
for in the Law (Article 10(2)) do not ensure the protection of personal data 
because they leave open the possibility of identifying the declarant and other 
persons and linking with those persons publicly disclosed information that is not 
covered by the exceptions. 
16 The Law seeks essentially to safeguard the principle of transparency in the 
performance of public functions and in the taking of decisions related to the 
implementation of public interests (Article 1). 
17 The Court of Justice of the European Union (hereinafter also ‘the CJEU’) has 
noted that the principle of transparency laid down in Articles 1 and 10 of the 
Treaty on European Union and in Article 15 of the Treaty on the Functioning of 
the European Union enables citizens to participate more closely in the decision-
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making process and guarantees that the administration enjoys greater legitimacy 
and is more effective and more accountable to the citizen in a democratic system 
(see judgments of the Court of Justice of 6 March 2003, Interporc v Commission, 
C-41/00 P, EU:C:2003:125, paragraph 39, and of 29 June 2010, Commission v 
Bavarian Lager, C-28/08 P, EU:C:2010:378, paragraph 54). The CJEU has also 
ruled that the protection of the fundamental right to respect for private life at EU 
level requires that derogations from and limitations on the protection of personal 
data should apply only in so far as is strictly necessary (see judgments of 
21 December 2016, Tele2 Sverige and Watson and Others, C-203/15 and 
C-698/15, EU:C:2016:970, paragraph 96, and of 27 September 2017, Puškár, 
C-73/16, EU:C:2017:725, paragraph 112). 
18 According to the case-law of the CJEU, the institutions are obliged to balance, 
before disclosing information relating to a natural person, the European Union’s 
interest in guaranteeing the transparency of its actions and the infringement of the 
rights recognised by Articles 7 and 8 of the Charter. No automatic priority can be 
conferred on the objective of transparency over the right to protection of personal 
data, even if important economic interests are at stake (see judgment of 
9 November 2010, Volker und Markus Schecke, C-92/09 and C-93/09, 
EU:C:2010:662, paragraph 85). 
19 Although the obligation to provide data (including data on a person’s private life) 
imposed by the Law is linked to circumstances that may affect decisions taken in 
the course of the performance of official duties, the court is convinced that the 
existence of such circumstances does not in itself mean that such data are of 
public interest and must be published. On the contrary, such data may reveal 
highly sensitive personal information (such as information about unmarried 
cohabitation, life with a person of the same sex, and so on), which in principle has 
no social need to be made public and may cause significant inconvenience to the 
person in his/her private life. 
20 In the opinion of the court, the disclosure of the specified circumstances on the 
Internet is not a necessary measure to ensure the objective pursued by the Law, 
that is to say, the implementation of the principle of transparency in the civil 
service. The provision of such data merely to the entities specified in the Law 
(Article 5) as well as the functions of control assigned to those entities (Article 
22), including the functions of control vested in a special institution – the 
Vyriausioji tarnybinės etikos komisija – are sufficient measures to ensure that the 
objective of the Law is achieved. 
21 The court has doubts as to whether the rule laid down in the Law that the data 
relating to private declarations must be public and published is compatible with 
the specified provisions of the Charter and of the Regulation and with the case-
law of the CJEU.