Opinion of the Advocate General — ECLI:EU:C:2023:376
Date: 2023-05-04
Language of the case: Lithuanian
Subject matter: Approximation of laws;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 of receipt: 
12 November 2021 
Referring court: 
Vilniaus apygardos administracinis teismas (Lithuania) 
Date of the decision to refer: 
22 October 2021 
Applicant: 
Nacionalinis visuomenės sveikatos centras prie Sveikatos apsaugos 
ministerijos 
Defendant: 
Valstybinė duomenų apsaugos inspekcija 
  
Subject matter of the action in the main proceedings 
In the main proceedings, a dispute has arisen as to the content of the concept of 
‘controller’, recognition of a person as a controller and/or as a joint controller 
(hereinafter ‘joint controller’) and determination of the entity liable in respect of 
infringements of Regulation (EU) 2016/679. 
Subject matter and legal background of the request for a preliminary ruling 
Interpretation of provisions of Regulation (EU) 2016/679 (the General Data 
Protection Regulation, hereinafter ‘the GDPR’); second paragraph of Article 267 
TFEU. 
Questions referred 
1. Can the concept of ‘controller’ set out in Article 4(7) of the GDPR be 
interpreted as meaning that a person who is planning to acquire a data collection 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2021 – CASE C-683/21 
 
2  
tool (mobile application) by way of public procurement, irrespective of the fact 
that a public procurement contract has not been concluded and that the created 
product (mobile application), for the acquisition of which a public procurement 
procedure had been used, has not been transferred, is also to be regarded as a 
controller? 
2. Can the concept of ‘controller’ set out in Article 4(7) of the GDPR be 
interpreted as meaning that a contracting authority which has not acquired the 
right of ownership of the created IT product and has not taken possession of it, but 
where the final version of the created application provides links or interfaces to 
that public entity and/or the confidentiality policy, which was not officially 
approved or recognised by the public entity in question, specified that public 
entity itself as a controller, is also to be regarded as a controller? 
3. Can the concept of ‘controller’ set out in Article 4(7) of the GDPR be 
interpreted as meaning that a person who has not performed any actual data 
processing operations as defined in Article 4(2) of the GDPR and/or has not 
provided clear permission/consent to the performance of such operations is also to 
be regarded as a controller? Is the fact that the IT product used for the processing 
of personal data was created in accordance with the assignment formulated by the 
contracting authority significant for the interpretation of the concept of 
‘controller’? 
4. If the determination of actual data processing operations is relevant for the 
interpretation of the concept of ‘controller’, is the definition of ‘processing’ of 
personal data under Article 4(2) of the GDPR to be interpreted as also covering 
situations in which copies of personal data have been used for the testing of IT 
systems in the process for the acquisition of a mobile application? 
5. Can joint control of data in accordance with Article 4(7) and Article 26(1) of 
the GDPR be interpreted exclusively as involving deliberately coordinated actions 
in respect of the determination of the purpose and means of data processing, or 
can that concept also be interpreted as meaning that joint control also covers 
situations in which there is no clear ‘arrangement’ in respect of the purpose and 
means of data processing and/or actions are not coordinated between the entities? 
Are the circumstance relating to the stage in the creation of the means of personal 
data processing (IT application) at which personal data were processed and the 
purpose of the creation of the application legally significant for the interpretation 
of the concept of joint control of data? Can an ‘arrangement’ between joint 
controllers be understood exclusively as a clear and defined establishment of 
terms governing the joint control of data? 
6. Is the provision in Article 83(1) of the GDPR to the effect that 
‘administrative fines … shall … be effective, proportionate and dissuasive’ to be 
interpreted as also covering cases of imposition of liability on the ‘controller’ 
when, in the process of the creation of an IT product, the developer also performs 
personal data processing actions, and do the improper personal data processing 
NACIONALINIS VISUOMENĖS SVEIKATOS CENTRAS 
 
3 
actions carried out by the processor always give rise automatically to legal 
liability on the part of the controller? Is that provision to be interpreted as also 
covering cases of no-fault liability on the part of the controller? 
Provisions of EU law and case-law of the Court of Justice cited 
Recitals 4, 10 and 74, Article 4(2) and (7), Article 26(1) and (2) and Article 83(1) 
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). 
Judgment of 5 June 2018, Wirtschaftsakademie Schleswig-Holstein (C-210/16, 
EU:C:2018:388, paragraphs 26 and 27). 
Judgment of 10 July 2018, Jehovan todistajat (C-25/17, EU:C:2018:551, 
paragraph 66). 
Provisions of national law cited 
Viešųjų pirkimų įstatymas (Law on Public Procurement) (‘the LPP’): 
Article 29(3): 
‘At any time prior to the award of a contract of sale (conclusion of a framework 
agreement) or determination of the successful candidate in a design contest, the 
contracting authority shall have the right to terminate the procurement or design 
contest procedures at its own discretion in the event of the occurrence of 
unforeseeable circumstances and must do so in the event of an infringement of the 
principles set out in Article 17(1) of this Law and if the situation in question 
cannot be remedied’. 
Article 72(2): 
‘The contracting authority shall carry out a negotiated procedure without 
publication of a contract notice in the following stages: 
(1) written invitation to the selected economic operators to submit tenders; 
(2) verification as to whether there are any grounds for the exclusion of 
economic operators as laid down in the procurement documents, and verification 
as to whether the economic operators fulfil the qualification requirements imposed 
and, where applicable, meet the required quality assurance standards and/or 
environmental management standards; 
(3) conduct of negotiations with the tenderers in accordance with the procedure 
established in Article 66 of this Law and the request for them to submit final 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2021 – CASE C-683/21 
 
4  
tenders. The contracting authority shall not be required to request the submission 
of a final tender in the case of one economic operator participating in the 
negotiated procedure without publication of a prior notice; 
(4) evaluation of the final tenders and determination of the successful 
candidate’. 
Civil Code 
Article 2.133(9): 
‘If an agent has exceeded the scope of his or her rights but in such a manner that a 
third party had serious reasons for taking the view that he or she has entered into a 
transaction with a duly authorised agent, the transaction shall be binding upon the 
principal, except for cases in which the other party to the transaction knew, or 
ought to have known, that the agent was exceeding the scope of his or her rights’. 
Article 2.136(1): 
‘A transaction which is being concluded on behalf of another person by a person 
who does not have the right to conclude the transaction or by a person exceeding 
the rights granted to that person shall create, change or abolish rights and 
obligations for the principal only in cases where the principal subsequently 
approves the whole of that transaction or the part thereof which exceeds those 
rights’. 
Brief description of the facts and procedure in the main proceedings 
1 In order to manage effectively the situation resulting from the spread of 
COVID-19, the Minister for Health of the Republic of Lithuania, by Decision 
No V-519 of 24 March 2020, instructed the Director of the Nacionalinis 
visuomenės sveikatos centras prie Sveikatos apsaugos ministerijos (the National 
Public Health Centre under the Ministry of Health) (hereinafter ‘the NVSC’) to 
organise the acquisition of an information platform (system) (hereinafter ‘the 
KARANTINAS mobile application’ or ‘the application’) intended for the 
registration and monitoring of data relating to persons who have been in contact 
with carriers of the COVID-19 infection. 
2 On 27 March 2020, A. S., a person claiming to be an agent representing the 
NVSC, informed the company ‘IT sprendimai sėkmei’ UAB (hereinafter also ‘the 
company’) by email that the NVSC had selected that company to be the developer 
of the KARANTINAS mobile application. A. S. had no employment contract or 
other contract with the NVSC. A. S., claiming to be an agent representing the 
NVSC, subsequently sent numerous emails to that company (with copies to the 
Director of the NVSC) regarding various aspects of the development of the mobile 
application. Emails related to the application were also sent to the company by a 
number of NVSC employees. 
NACIONALINIS VISUOMENĖS SVEIKATOS CENTRAS 
 
5 
3 A confidentiality policy was drawn up at the application development stage, 
specifying ‘IT sprendimai sėkmei’ UAB and the NVSC as controllers. The 
application was made available for downloading from the online shop Google 
Play Store as from 4 April 2020 and from the sales platform Apple App Store as 
from 6 April 2020. The application provided links to ‘IT sprendimai sėkmei’ UAB 
and to the NVSC. On 15 May 2020, the NVSC requested the company not to use 
any details of the NVSC or other links with the NVSC in the application. 
4 The KARANTINAS mobile application collected various items of information 
relating to its users: identity number, latitude and longitude coordinates, country, 
city, municipality, residential address, forename, surname, personal identification 
number, telephone number, whether the person must self-isolate, whether he/she 
has registered, and so forth. Data were collected not only in Lithuania but also 
abroad. 
5 By Decision No V-821 of 10 April 2020, the Minister for Health instructed the 
Director of the NVSC to organise urgently the acquisition of the KARANTINAS 
mobile application. It was planned to acquire the application from ‘IT sprendimai 
sėkmei’ UAB by negotiated procedure without publication of a contract notice. 
The procurement procedures were initiated but, having failed to receive the 
necessary funding, the NVSC terminated them in accordance with Article 29(3) of 
the LPP. No public contract for purchase and sale was concluded. 
6 The Valstybinė duomenų apsaugos inspekcija (State Data Protection Inspectorate) 
(hereinafter ‘the Inspectorate’) carried out an investigation and, by Decision 
No 3R-180 of 24 February 2021, imposed administrative fines on the NVSC and 
on ‘IT sprendimai sėkmei’ UAB, in their capacity as joint controllers, for breaches 
of Articles 5, 13, 24, 32 and 35 of Regulation (EU) 2016/679. 
7 The Inspectorate found that personal data had been collected using the 
KARANTINAS mobile application. According to ‘IT sprendimai sėkmei’ UAB, 
personal data were provided via the application by 3 802 users. 
8 Each day, users who had chosen the application as the method for monitoring their 
forced isolation were requested to answer the following questions: Did you 
measure your temperature today? If so, what is your temperature? If not, please 
measure it now and enter details. Do you experience at least one of the following 
symptoms: coughing or difficulty in breathing? Do you have any other symptoms? 
If so, please specify (enter details). Are you complying with the self-isolation 
requirements (a link to the isolation rules can be added)? Do you require social 
assistance? If so, please specify which kind (enter details). Do you require 
psychological assistance? 
9 The Inspectorate also found that copies of the data collected in the 
KARANTINAS mobile application had to be received by another company, 
‘Juvare Lithuania’ UAB, which is the processor of the Užkrečiamųjų ligų, 
galinčių išplisti ir kelti grėsmę, stebėsenos ir kontrolės informacinė sistema 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2021 – CASE C-683/21 
 
6  
(Information System for the monitoring and control of communicable diseases 
which may spread and pose a threat) (hereinafter ‘ULSKIS’). The NVSC was 
subsequently appointed as the controller of ULSKIS. 
Essential arguments of the parties to the main proceedings 
10 The NVSC basically relies on the arguments that the public procurement 
procedure was not completed through the conclusion of a contract of purchase and 
sale; therefore, ownership of the mobile application was not transferred and the 
NVSC cannot be regarded as a controller of the personal data collected through 
use of the application. 
11 ‘IT sprendimai sėkmei’ UAB points out that, as a processor, it technically 
supervised the operation of the application but that the personal data were 
processed in the application exclusively for the purposes determined by the NVSC 
and in accordance with its instructions. 
12 The Inspectorate points out that the concept of ‘controller’ is a functional concept, 
the purpose of which is to attribute, on the basis of an analysis of the specific 
facts, liability to the entity which exercises actual influence; being a controller is a 
consequence of the factual circumstance that an entity has chosen to process 
personal data for its own purposes. The Inspectorate stresses that a controller 
determines, rather than legitimises, the purpose and methods of data processing, 
that joint controllers should complement each other by their decisions and that 
basically each other’s decisions should have a tangible influence on the 
determination of the purpose and means of data processing. In addition, the 
objectives sought by the joint controllers of data should be closely linked and 
should complement each other. 
Concise justification of the request for a preliminary ruling 
13 The dispute between the parties centres essentially on the question whether the 
concept of ‘controller’ set out in the GDPR is to be interpreted broadly, that is to 
say, as meaning that a person who has merely established the objectives and 
means of data processing is to be regarded as a controller of personal data, or 
whether this concept must be interpreted more narrowly, taking into account the 
procedure governing the organisation of the public procurement and its outcome. 
It is established in the present case that ‘IT sprendimai sėkmei’ UAB developed 
the KARANTINAS mobile application and that the NVSC, as the contracting 
authority, assisted by providing advice on the content of the information to be 
collected; however, the NVSC did not conclude a public contract of purchase and 
sale, no certificate of transfer and acceptance regarding the created IT product was 
signed, the rights of ownership of the KARANTINAS mobile application were not 
transferred, and there is nothing to indicate that official consent (permission) was 
given to make the mobile application available in various online stores (Google 
Play Store, App Store). 
NACIONALINIS VISUOMENĖS SVEIKATOS CENTRAS 
 
7 
14 The legal regulation of public procurement and the fact that a public 
administrative entity which, in accordance with EU law, is subject to one of the 
essential principles of public administration, namely the principle of legality, has 
been made accountable for breaches of the GDPR are also relevant in the present 
case. The body of rules governing public procurement is subject to both national 
and EU law; however, EU law does not regulate all aspects of public procurement 
and some of these are left to national law. According to national law, a public 
procurement procedure is to be regarded as completed when a public contract of 
purchase and sale has been concluded. 
15 The LPP establishes clearly defined preconditions for the negotiated procedure 
without publication of a contract notice, the point in time at which such a 
procedure begins and the moment at which the negotiations are to be regarded as 
having taken place. 
16 It is apparent from the correspondence between ‘IT sprendimai sėkmei’ UAB and 
the NVSC that achievement of the objective set for the NVSC (the creation of an 
IT solution to manage the pandemic) was sought through development of the 
application and that the processing of personal data was planned with that 
objective in mind. There is also information in the case that the technical decisions 
(questions to be asked, their wording, and suchlike) were changed according to the 
needs of the contracting authority (the customer). It has not been established that 
the company sought any objectives other than to receive remuneration for the 
created product. 
17 Since the NVSC has been recognised as a joint controller of personal data, 
questions also arise as to the interpretation of Article 4(7) and Article 26(1) of the 
GDPR in relation to the joint control of data. 
18 Finally, the referring court also asks how Article 83(1) of the GDPR, which 
provides that ‘administrative fines … shall … be effective, proportionate and 
dissuasive’, is to be construed when a decision is taken on the liability of several 
entities.