OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 15 January 2026 (1)
Case C‑560/24 [Besthame (i)]
R.S.
v
Minister for Justice
(Request for a preliminary ruling from the Court of Appeal (Ireland))
( Reference for a preliminary ruling – Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive
2004/38/EC – Family members of a Union citizen – Derived right of residence – Subsequent naturalisation of the family member – Article 35 – Fraud or abuse of rights and/or marriage of convenience )
I.      Introduction
1.        The legal question raised by the present reference for a preliminary ruling is the following: can the competent authorities of a Member State investigate and, if appropriate, make a determination or reach a conclusion that a person who benefited from a derived right of residence in the past as a family member of a Union citizen, under Directive 2004/38/EC, (2) committed an abuse of rights or fraud, even though that person has, in the meantime, acquired the nationality of that Member State and his or her residence in the Member State is therefore no longer based on that directive?
2.        That question is posed by the Court of Appeal (Ireland) in proceedings between R.S. (‘the appellant in the main proceedings’), a naturalised Irish national, and the Minister for Justice (Ireland) (‘the Minister for Justice’) concerning the finding made by the latter that, before acquiring Irish nationality, the appellant in the main proceedings, then a third-country national, had contracted a marriage of convenience with a Union citizen or had provided false or misleading information for the purpose of obtaining a residence card of a family member of a Union citizen.
3.        Consideration of the question will lead the Court to interpret, for the second time, Article 35 of Directive 2004/38. Although the Court has already made mention of the abuse of rights or fraud inter alia in its case-law on the free movement of persons, (3) the first reference for a preliminary ruling seeking an interpretation of that article is that which gave rise to the judgment in McCarthy and Others. (4) In that judgment, the Court held that a Member State cannot make the right of entry of a third-country national subject to that national obtaining a visa in advance where he or she holds a residence card of a family member of a Union citizen. It stated that that article does not allow measures which, in pursuit of an objective of general prevention, stop family members from entering the territory of a State without a visa. (5)
4.        However, the present case gives the Court the opportunity to rule on the interpretation of Article 35 of Directive 2004/38 from a different angle. The interpretation sought by the referring court is concerned not with the determination of an abuse of rights as such, but rather with the applicability of that directive to determine it, as well as with the legal consequences which should be drawn from the finding of the existence of such abuse, which was committed in the past and has been established definitively by the competent authorities of a Member State. In the case in the main proceedings, the referring court has found there to have been a marriage of convenience, and therefore that classification of the marriage is not at issue in the present case.
5.        In that context, the referring court has doubts as to whether Article 35 of Directive 2004/38 is applicable where the person concerned is no longer a ‘beneficiary’, within the meaning of that directive, in the host Member State of the rights conferred by the directive, and, if so, whether that provision allows the competent authorities to investigate whether a marriage of convenience exists and to find that one exists, without other immediate legal consequences being drawn.
6.        In the present Opinion, I will propose inter alia that the Court find that the situation in which the person concerned is no longer a ‘beneficiary’, under Directive 2004/38, falls within the scope of that directive.
II.    Legal framework
A.      European Union law
7.        In the context of the present Opinion, I will refer to recitals 25 and 28 of Directive 2004/38 and to Article 2(1) and (2)(a), Article 3(1), Article 15(1) and (3), Article 30(1) and (3), Article 31(1) and (3), Article 35 and Article 36 of that directive.
B.      Irish law
8.        Directive 2004/38 was transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No 548 of 2015), in the version thereof applicable to the dispute in the main proceedings (‘the 2015 Regulations’).
9.        Regulation
27 of the 2015 Regulations, entitled ‘Cessation of entitlements’, provides, in paragraphs 1, 2 and 4 thereof:
‘(1)      The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:
…
(b)      a residence card …
…
(2)      Where the Minister suspects, on reasonable grounds, that a right, entitlement or status of being treated as a permitted family member conferred by these Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he or she shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.
…
(4)      In this Regulation, “abuse of rights” shall include a marriage of convenience …’
10.      Regulation
28 of those Regulations, entitled ‘Marriages of convenience’, provides:
‘(1)      The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.
(2)      Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.
…’
III. The facts of the dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
11.      R.S., who was born in a third country, entered Ireland in the course of 2002 as the holder of a student residence permit. In 2010, 16 days before the expiry of that residence permit, R.S., then a third-country national, married a Union citizen who had exercised her right to move to and reside in Ireland. He was subsequently issued a five-year residence card as a family member of a Union citizen.
12.      In 2015, R.S. acquired Irish citizenship. Since then, his residence in Ireland has been based on that citizenship. In 2018, R.S. and his wife divorced. In 2019, a third-country national applied for residence in Ireland on the ground that she was the mother of a child, an Irish citizen, of whom R.S. was the biological father. That application prompted an investigation to determine whether the marriage contracted in 2010 was a marriage of convenience.
13.      By a decision of 18 December 2019, the Minister for Justice ‘revoked’ the residence card issued in 2010 on the ground that, in support of his residence card application, R.S. had produced misleading documents and that the marriage contracted in 2010 had been a marriage of convenience. Following an application for review submitted by R.S., that decision was upheld by a decision of 8 September 2020.
14.      On 1 February 2022, the Minister for Justice did, however, adopt a new decision further to correspondence with R.S.’s solicitors. By that decision, she rescinded the decision of 8 September 2020, set aside the decision of 18 December 2019 and found that R.S. had produced false or misleading documents or information and contracted a marriage of convenience to obtain a status or a right to which he would not otherwise have been entitled under Directive 2004/38. The Minister took the view that ‘any entitlement or status conferred under [that] directive from [that] marriage … [is] deemed withdrawn from the outset’.
15.      R.S. brought before the High Court (Ireland) an application for annulment (certiorari) of the three decisions of 8 September 2020, 13 February 2020 and 1 February 2022 on the ground that the Minister for Justice had acted ultra vires. As an Irish citizen, R.S. was no longer covered by any provision of the 2015 Regulations or of Directive 2004/38, which could not therefore authorise the Minister for Justice to adopt those decisions. That action was dismissed by the High Court by a judgment of 18 May 2023.
16.      R.S. then referred the matter to the Court of Appeal, the referring court.
17.      That court points out, first and foremost, that the decision of 1 February 2022 must be understood as not entailing the revocation or the refusal of a right of residence, but rather as containing a ‘determination’, a ‘finding’ or a ‘conclusion’ as to a past state of affairs or the past conduct of R.S.
It adds that that decision suggests that such a determination or finding is conceivable in the context of a future re-assessment of R.S.’s Irish citizenship status, while acknowledging that any future re-assessment would take account of all circumstances and of R.S.’s fundamental rights. With regard to the re-assessment of R.S.’s Irish citizenship, the referring court explains that, by reason of recent decisions of the Supreme Court (Ireland), there is no constitutional procedure that currently allows an investigation to be conducted with a view to revoking Irish citizenship.
18.      In view of the arguments raised before it, the referring court asks, in the first place, about the scope of Directive 2004/38 and, in particular, of Article 35 thereof.
19.      In that regard, whilst noting differences between the circumstances of the present case and those of the case which gave rise to the judgment in Lounes, (6) the referring court considers that it could be inferred from that judgment that Directive 2004/38 ceases to apply to a third-country national who is a family member of a Union citizen once that national acquires the citizenship of the host Member State and, as a result, no longer satisfies the definition of a ‘beneficiary’ within the meaning of Article 3(1) of that directive. That said, in the judgment in Chenchooliah, (7) the Court held that that
directive was applicable to a decision to expel a third-country national who resided in the host Member State as a family member of a Union citizen, even though that third-country national was no longer a ‘beneficiary’ within the meaning of Article 3(1) of the same directive.
20.      The referring court wonders whether, by analogy, Directive 2004/38 continues to govern the situation in which the competent authority of a Member State is seeking to determine whether a person initially obtained, by an abuse of rights or fraud, the benefit of a right of residence on the basis of that directive, at a time when that person is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive.
21.      In the second place, the referring court observes that Regulation
27(1) and (2) of the 2015 Regulations authorises the Minister for Justice, first, to revoke, refuse to make or refuse to grant a residence card applied for on the basis of a fraud or an abuse of rights and, second, to investigate the suspected fraud or abuse of rights. Whilst the revocation cannot have retroactive effect, the investigation could cover both current or pending residence card applications as well as residence cards obtained in the past. However, the question arises as to whether the power of investigation can be exercised autonomously, outside any specific action such as the revocation or the refusal of a right of residence, a prosecution for a criminal offence, an expulsion procedure or a procedure for revocation of Irish citizenship.
22.      In the referring court’s view, such an autonomous power may be implicitly contained in Regulation
27(2) of the 2015 Regulations. It may be justified in the light of the purpose and of the context of those regulations taken as a whole, including the rules governing citizenship of the Union, which require that there be a robust system for the prevention, detection and eradication of fraud and abuses of rights. To be able, if appropriate, to interpret Regulation
27(2) of the 2015 Regulations in a manner consistent with EU law, that court considers it necessary to determine whether Directive 2004/38 applies to a naturalised national of a Member State solely in so far as that directive authorises that Member State to investigate a marriage of convenience entered into at a time when that national enjoyed a right of residence in the Member State under that
directive.
23.      It is in those circumstances that the Court of Appeal, by order of 2 July 2024, received at the Registry of the Court of Justice on 19 August 2024, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Does Directive [2004/38] apply to a person who previously obtained the benefit of [a] derived [right of] residence in a Member State by virtue of being a spouse of an EU national exercising Treaty rights in the host State but who has more recently become a citizen in the host State and is no longer the beneficiary of any derived benefit in the host State under the directive, solely for the purpose of investigating and (if appropriate) making a determination or reaching a conclusion that he [or she] engaged in a fraud or abuse of rights and/or a marriage of convenience in the past within the meaning of Article 35 of the Directive in order to obtain a benefit under the Directive?’
24.      Written observations were submitted by R.S., the Minister for Justice,
Ireland, the German Government and the European Commission. Oral argument was presented at the hearing of 15 October 2025 on behalf of R.S., Ireland, the German Government and the Commission.
IV.    Analysis
25.      By its single question, the referring court asks, in essence, whether Article 35 of Directive 2004/38 must be interpreted as allowing the competent national authorities to investigate and, if appropriate, make a determination or reach a conclusion that a person who previously benefited from a derived right to move freely under that directive committed a fraud or an abuse of rights, where the residence of that person in the Member State concerned is no longer based on that
directive, including where he or she has in the meantime acquired the nationality of that Member State. (8)
26.      In their written and oral submissions, the parties to the main proceedings and the interested parties disagree as to the interpretation of Article 35 of Directive 2004/38.
27.      Generally speaking, the appellant in the main proceedings and the German Government have doubts that that directive is applicable to a person who has benefited in a Member State, as a third-country national, from a derived right of residence as the spouse of a migrant Union citizen, where that person has since then acquired the nationality of the host Member State. They are of the view, in essence, that such a person is no longer covered by the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, with the result that that directive no longer applies to him or her. In particular, the German Government takes the view that the determination of the existence of an abuse of rights or a fraud falls within the scope of national law. They therefore propose that the question put by the referring court be answered in the negative. By contrast, the Minister for Justice,
Ireland
and the Commission argue that Article 35 of Directive 2004/38 is applicable in the present case. They all argue, inter alia, that that provision is an expression of the general principle that abuse of rights is prohibited. They therefore propose that the question referred for a preliminary ruling be answered in the affirmative.
28.      In order to answer the referring court’s questions, I will begin my analysis with some general considerations (Section
A). I will continue by dispelling any doubts as to the applicability of Directive 2004/38 and, in particular, of Article 35 thereof to the situation at issue in the main proceedings (Section
B), and conclude by examining the scope of the powers conferred on Member States by that provision (Section
C).
A.      Some general considerations on the applicability of Directive 2004/38
29.      It should be recalled from the outset that, as may be seen from recitals 3 and 4 of Directive 2004/38, that directive aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU, and that it aims in particular to strengthen that right. (9) Recital 5 of Directive 2004/38 states that the right should, if it is to be exercised under objective conditions of dignity, also be granted to the family members of those citizens, irrespective of nationality. (10) However, according to settled case-law of the Court, Directive 2004/38 does not confer any autonomous right on family members of a Union citizen who are third-country nationals. Thus, any rights that may be conferred on those nationals by that directive are derived from the rights which the Union citizen concerned enjoys as a result of having exercised his or her freedom of movement. (11) The Court has repeatedly held that, pursuant to Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than that of which they are a national, and their family members as defined in Article 2(2) of that directive who accompany or join them, fall within the scope of the directive and are beneficiaries of the rights conferred by it. (12)
30.      In the present case, given that, following his marriage in 2010 to a national of a Member State residing in Ireland, the appellant in the main proceedings resided in that Member State as the spouse of a Union citizen who had exercised her freedom to move to and reside in a Member State other than that of which she is a national, it is established that he benefited from a derived right of residence, under Directive 2004/38, and fell with the scope of that directive. However, it is apparent from the order for reference that, in 2015, he acquired Irish nationality and, as a result, has since then resided in Ireland as an Irish national. A few years later, in 2018, the couple divorced. It is therefore quite clear that, since that directive governs only the conditions of entry and of residence of a Union citizen and his or her family members in the host Member State, the appellant in the main proceedings no longer satisfies the definition of a ‘beneficiary’ of the directive within the meaning of Article 3(1) thereof. (13)
31.      It follows from the foregoing that when he acquired the rights conferred by Directive 2004/38 and over the period to which the investigation into the existence of a marriage of convenience related, that is to say, between 2010 and 2015, the appellant in the main proceedings had the status of a beneficiary of that directive, (14) as the spouse of a Union citizen who had exercised her freedom of movement by moving to and residing in a Member State other than that of which she was a national. However, by virtue of his naturalisation by Ireland in the course of 2015, (15) his legal status changed under both national law and that directive, with the result that, in accordance with the judgment in Lounes, (16) when that investigation was opened in 2019, the same directive no longer governed his residence in that Member State. (17)
32.      Accordingly, must the view be taken that, since the appellant in the main proceedings is no longer a ‘beneficiary’ of the derived rights of entry and of residence in the host Member State, within the meaning of Article 3(1) of Directive 2004/38, that directive is no longer applicable?
33.      I do not believe so.
34.      As I will demonstrate in what follows, the loss of the status of a beneficiary within the meaning of Article 3(1) of Directive 2004/38 does not presuppose that that directive ceases to apply where, as in the present case, the competent national authorities find there to have been abuse or fraud of the rules laid down in that directive which was committed when the appellant in the main proceedings had the status of beneficiary. In that regard, it should be observed that the Court has taken care to mark a distinction between the scope of the directive and the status of beneficiary under that provision. (18) It therefore follows, in my view, that whilst Union citizens and their family members who exercise the rights conferred by Directive 2004/38 fall within the scope of that directive and are beneficiaries of it, within the meaning of the abovementioned provision, persons who no longer exercise those rights because they have lost their status of beneficiaries may, nevertheless, continue to fall within the scope of the directive since, as I will demonstrate in the following points of the present Opinion, that directive contains provisions the application of which is not conditional upon the person concerned having that status at the time of their application. (19)
35.      That being said, in the following points, I will focus my examination on whether Directive 2004/38, in particular Article 35 thereof, is applicable in the present case.
B.      The applicability of Article 35 of Directive 2004/38
36.      In order to determine whether Article 35 of Directive 2004/38 is applicable in the present case, it is necessary to determine its scope ratione temporis, that is to say, to ascertain whether that provision applies when the person concerned had, in the past, the status of beneficiary under that directive, within the meaning of Article 3(1) thereof, but had already lost that status at the time when the former provision is said to apply.
37.      According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (20) The origins of a provision of EU law may also provide information relevant to its interpretation. (21) With that in mind, I will undertake a literal, contextual and teleological interpretation of that provision.
1.      Literal interpretation
38.      It should be recalled, at the outset, that Article 35 of Directive 2004/38, entitled ‘Abuse of rights’, provides that ‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by [that] Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.’
39.      I note, first, that there is nothing in the wording of that provision to support the view that, by the provision, the EU legislature intended to impose a time limit on the possibility for Member States to adopt ‘the necessary measures to refuse, terminate or withdraw any right conferred by [the] Directive in the case of abuse of rights or fraud’. (22) In other words, that wording does not state that a Member State is required to adopt only ‘the necessary measures’ in connection with a right that currently has legal effects under Directive 2004/38. Providing for such a time limit would amount, in practice, to imposing an additional element not laid down in the wording of that provision. On the contrary, the absence of such a time limit means that that possibility is therefore understood to be an option for Member States to adopt such measures, irrespective of whether the person concerned is exercising or has exercised a right conferred on the basis of Directive 2004/38.
40.      Second, it is apparent from the wording of Article 35 of Directive 2004/38, which uses the past participle ‘conferred’, that the EU legislature is referring, inter alia, to the rights of which the person concerned is or has been a beneficiary under that directive. (23)
41.      Third, I note that the use in that provision of the verb ‘refuse’ includes the refusal to grant entry to or residence in the host Member State to the persons covered by Article 3(1) of Directive 2004/38, where those persons acquired the rights conferred by that directive by an abuse of rights or by fraud, and did not therefore satisfy the conditions to be beneficiaries of such rights under the directive. (24) Consequently, what is at issue here is a (potential) future right of entry or of residence which has not yet arisen, since that person does not satisfy the conditions required by Directive 2004/38 to have the status of ‘beneficiary’ within the meaning of that provision.
42.      Fourth, I note that the use of the verbs ‘terminate’ and ‘withdraw’ in Article 35 of Directive 2004/38 suggests that that provision covers the termination or the withdrawal of a right conferred by that directive, irrespective of whether or not the effects of that right have been exhausted. (25) Those two verbs can therefore be retroactive in nature in so far as they may entail the evaporation of both certain future effects and also certain past effects of such a right. (26) The use of two separate verbs appears, in principle, to reflect the intention of the EU legislature to cover both national measures that allow a right to be terminated ex nunc (such as inter alia the termination of a residence card) or to be withdrawn ex tunc. (27)
43.      Therefore, it follows from that interpretation that the choice made by the EU legislature to use the words ‘refuse, terminate or withdraw any right conferred by [that directive]’ clearly expresses the intention to cover the right of entry or residence at issue with regard to its timing (future, current or past) where that right is ‘conferred by [the directive]’, thus supporting the view that that same directive is applicable regardless of the fact that that right is no longer being exercised.
44.      I am therefore of the view that the wording of Article 35 of Directive 2004/38 means that that provision must be regarded as being applicable to measures adopted in respect of a right conferred by that directive over a period during which the person holding that right was the ‘beneficiary’, within the meaning of the directive, irrespective of the current position of the person concerned.
45.      It is, however, necessary to examine whether or not the normative context in which Article 35 of Directive 2004/38 occurs corroborates that interpretation.
2.      Contextual interpretation
(a)    Internal or schematic interpretation
46.      With regard to the context in which Article 35 of Directive 2004/38 occurs, I note, in the first place, that the interpretation set out in the preceding points is not invalidated by the wording of recital 28 of that directive, under which, ‘to guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.’ The broad wording of that recital, like that of Article 35, does not lay down any time limit for the adoption of such measures by Member States. In that regard, I note that the wording of recital 28
refers to ‘marriages of convenience or [to] any other form of relationships contracted’, thus suggesting that the measures which Member States ‘should have the possibility to adopt’ under Article 35 may be retroactive in nature, since such marriages or relationships have in the majority of cases already taken place when that provision may be applied.
47.      In the second place, I note that Article 1 of Directive 2004/38, entitled ‘Subject’, provides under point
(a) that that directive, inter alia, lays down ‘the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members’. Therefore, since Article 35 of Directive 2004/38 applies to the situations in which the conditions governing the exercise of the right of free movement and residence laid down by that directive were met only formally, such that those conditions were not respected, Article 35 of that directive falls within the scope of Article 1
thereof.
48.      In that regard, as is apparent from the scheme of Directive 2004/38, in particular from Chapters
II to IV on the conditions governing the exercise of the rights of residence laid down therein, that
directive introduces a system that covers the development of the situation of Union citizens and their family members in the host Member State as well as that of the rights that the same directive confers on them, from the time of their arrival in a Member State other than that of which they are a national until their departure from that Member State. (28) That system encompasses both the different stages of the exercise of the freedom of movement by a citizen and his or her family members (entry, residence or departure) and the rights of which those persons are beneficiaries and which correspond to each of the stages concerned (right of entry, right of residence, right to retain the right of residence or right of exit). Thus, if, at a particular time (including, in the present case, the time at which the right in question is improperly acquired), the Union citizen and/or his or her family members no longer satisfy the conditions laid down in Directive 2004/38, entailing the loss (even the retroactive loss) of their status as ‘beneficiaries’ within the meaning of Article 3(1) thereof and, therefore, of their rights of entry to and of residence in the host Member State, this does not mean however that other provisions of that directive are not applicable to them. (29)
49.      In that developing context of the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, I consider it important to note that Article 35
thereof concerns a right of movement and of residence which has been exercised for a certain period of time, a right from which the person concerned should never have benefited under that directive since he or she only artificially satisfied the conditions to which the exercise of that right is subject. (30) As the Commission has observed, Article 35 of Directive 2004/38 is applicable to legal situations arising at the time the right conferred by that directive is obtained so that such situations may be characterised in the light of the practices or the facts which prove that that right was acquired improperly, (31) even if the person concerned is no longer exercising that right and no longer has the status of ‘beneficiary’ within the meaning of Article 3(1) thereof.
50.      In the third and final place, I would add that the ‘Final provisions’ contained in Chapter
VII of Directive 2004/38, of which Article 35 forms an integral part, concern the effective implementation of that directive in its entirety. (32) Without even having to examine those provisions in detail, I note, in particular, that it follows from the inclusion of Articles 35 and 36 of the directive in Chapter
VII thereof that they are horizontal provisions relating, respectively, to the power of Member States and to the obligation on Member States to adopt measures in case of infringement of the provisions of the directive. (33)
51.      It is true that, unlike Article 35, Article 36 concerns Union citizens and their family members who, in principle, lawfully exercise the rights conferred on them by Directive 2004/38, but who have failed to comply with certain administrative formalities laid down therein. (34) In addition, the measures set out in those two provisions are different in nature: individual or specific measures on the one hand, and general measures on the other. (35) However, despite those differences, I see no reason why those two provisions are not applicable to cases where the person concerned is no longer a beneficiary of the directive. On the contrary, as I have noted, those two provisions fall within the scope of other provisions of that directive. (36) To hold otherwise would mean that neither the measures referred to in Article 35 nor the sanctions adopted by Member States pursuant to Article 36 could be applied to a person who no longer benefits from the rights conferred by Directive 2004/38, even though an abuse of rights or a failure to fulfil the obligations imposed by that directive did occur when those rights were acquired or exercised, which would render those provisions meaningless.
(b)    External interpretation or travaux préparatoires
52.      I note that in the travaux préparatoires for Directive 2004/38,
Article 35 was not included in the Commission’s initial proposal. (37) That article was introduced by the Council ‘in order to clarify that Member States may refuse, terminate or withdraw any right conferred by [that directive] in the case of abuse of rights or fraud’. (38) This confirms the intention of the EU legislature, as is apparent from recital 28 of the directive, to allow Member States ‘to adopt the necessary measures’ ‘to guard against abuse of rights or fraud, notably marriages of convenience’, regardless of the current position of the person concerned who is benefiting or has benefited from a right conferred by that directive.
53.      This is likewise borne out by the Commission’s non-binding guidelines of 2009 (39) and of 2023, (40) which refer to the possibility for Member States to adopt the necessary measures in cases of abuse or fraud, under Article 35 of Directive 2004/38, ‘at any point [in] time’, whether in the context of ‘the refusal to confer’ the rights afforded by that directive or ‘the termination or withdrawal’ of such rights. (41)
54.      Accordingly, the literal interpretation outlined in point 44 of the present Opinion, namely that Article 35 of Directive 2004/38 is applicable to a situation such as that in the main proceedings, is supported by the normative context and the scheme of that
directive in which that provision appears.
55.      That being said, the referring court also asks whether it is possible to rely, by analogy, on the guidance provided in the judgment in Chenchooliah (42) in order to hold that Article 35 of Directive 2004/38 is applicable to a situation such as that at issue in the main proceedings. It is to that question which I will now turn.
(c)    The lessons to be learned from the case-law deriving from the judgment in Chenchooliah
56.      In that judgment, the Court observed, first, that the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 is a ‘dynamic’ concept in that, even though acquired in the past, the status of beneficiary may subsequently be forfeited if the requirements laid down by that provision are no longer met. (43) Second, the Court stated that that directive does not contain only rules governing the conditions under which one of the various types of residence rights it makes provision for may be obtained and the conditions to be met in order to be able to continue to enjoy the rights concerned. (44) It added that the directive also lays down a set of rules intended to govern the situation arising in which entitlement to one of those rights is lost, inter alia where the Union citizen leaves the host Member State. (45)
57.      In that context, the Court, first, found that, in a situation in which a Union citizen returned to the Member State of which he or she is a national and therefore no longer exercises, in the host Member State, his or her right of free movement under EU law, the third-country national, who is the spouse of that Union citizen, no longer has the status of ‘beneficiary’ within the meaning of Article 3(1) of that directive, where that spouse remains in the host Member State and no longer resides with his or her spouse. (46) Second, the Court ruled that, even though the effect of the loss of that status is that the third-country national concerned no longer has the rights of movement and residence in the territory of the host Member State which that national held for a certain period of time, as he or she no longer meets the requirements to which those rights are subject, that loss does not mean, however, that Directive 2004/38 is no longer applicable where the host Member State takes a decision to expel that person on such a ground. (47)
58.      It is true that, in paragraph 64 of the judgment in Chenchooliah, the Court recalled, relying on paragraph 95 of the judgment in Metock and Others, that ‘from the time when a third-country national who is a family member of a Union citizen derives rights of entry and residence in the host Member State from Directive 2004/38, that State may restrict those rights only in compliance with Articles 27 and 35 of the directive’. However, in paragraph 67 of the judgment in Chenchooliah, it took the view that the lessons to be drawn from paragraph 95 of the judgment in Metock and Others were not applicable to the situation at issue in the main proceedings in the case which gave rise to the judgment in Chenchooliah, in which the third-country national was no longer a beneficiary of that directive. (48)
59.      I do not believe that that statement by the Court can be interpreted as meaning that it sought to link the application of Article 35 of Directive 2004/38 to the period during which the person concerned is a ‘beneficiary’, within the meaning of Article 3(1) thereof. I understand that paragraph rather to mean that the Court simply drew a distinction between the situations at the origin of those two judgments: in the first situation at issue, in the case which gave rise to the judgment in Metock and Others, the third-country national concerned benefited from a (current) derived right of residence (49) in the host Member State, within the meaning of the directive, whereas in the second situation at issue, in the case which gave rise to the judgment in Chenchooliah, the third-country national concerned had lost that (past) derived right. (50) Accordingly, since the two situations were different, the question remained as to whether the loss of the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 meant that an expulsion decision, taken essentially on the ground that that national had been refused a derived right of residence under that directive, was governed not by that
directive, but by the national law applicable outside its scope. (51)
60.      As I have just set out above, the Court held, in paragraph 69 of the judgment in Chenchooliah, that that question had to be answered in the negative, whilst – in paragraph 79 of the judgment – isolating the status of ‘beneficiary’ within the meaning of the abovementioned provision from the applicability of other provisions of Directive 2004/38, namely, inter alia, Article 15 thereof. (52)
61.      In that context, the question arises whether the lessons from that case-law support my contextual and schematic interpretation of Article 35 of that directive.
62.      In that regard, it should be observed, as the Court noted in paragraph 70 of the judgment in Chenchooliah, that Directive 2004/38 ‘does not contain only rules governing the conditions under which one of the various types of residence rights it makes provision for may be obtained and the conditions to be met in order to be able to continue to enjoy the rights concerned’, (53) but also lays down ‘a set of rules intended to govern the situation arising in which entitlement to one of those rights is lost, inter alia where the Union citizen leaves the host Member State’ (emphasis added).
63.      It follows from the use of the words ‘inter alia’ in paragraph 70 of the judgment in Chenchooliah that ‘the set of rules’ laid down in Directive 2004/38 and ‘intended to govern the situation arising in which entitlement to one of those rights is lost’ is by no means restricted to in a situation in which the Union citizen and/or his or her family members leave(s) the host Member State. It is sufficient to recall that, in the context and the scheme of that directive, the legal situations arising when the right conferred by the directive is obtained can evolve up until when they cease to exist for reasons other than the departure of the beneficiary of the directive, and inter alia on account of the naturalisation of the person concerned by the host Member State. Such legal situations can also cease to exist in the light of circumstances which prove that that right was acquired improperly or fraudulently, entailing their termination or withdrawal.
64.      It is therefore arguable that the finding, made by a national authority, of the existence of a marriage of convenience could entail, inter alia, the ‘formal and retroactive withdrawal’ of the derived rights which a third-country national in reality improperly or fraudulently derived from Directive 2004/38, thus entailing the ‘retroactive loss’ of the ‘formal’ benefit of those rights, regardless of whether, as in the present case, those rights were exercised in the past, they are still being exercised or they may be exercised in the future. (54)
65.      It therefore follows that it is possible to rely, by analogy, on the guidance provided in the judgment in Chenchooliah to take the view that Article 35 of Directive 2004/38 is applicable to a situation such as that at issue in the main proceedings.
3.      Teleological interpretation
66.      I would point out, in the first place, that, in view of the objective pursued by Directive 2004/38, namely that of facilitating the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU, (55) its provisions cannot be interpreted narrowly and must not, in any case, be deprived of a large proportion of their content or their effectiveness. Thus, in so far as Article 35 of Directive 2004/38 allows Member States to restrict the rights of Union citizens and their family members to move and reside freely within the territory of the Member States, that provision makes reference to the procedural safeguards laid down in that directive to ensure a high level of protection. (56) Accordingly, contrary to what the German Government claims, a restrictive interpretation of that provision would render those procedural safeguards meaningless, thus denying that protection to persons accused of improper or fraudulent conduct, whereas those safeguards are specifically intended to ensure the effectiveness of those rights and, therefore, contribute to the objective of that directive.
67.      To argue the contrary and take the view that Article 35 of Directive 2004/38 is not applicable where a Union citizen and his or her family members no longer have the status of beneficiaries of that directive would amount, contrary to the will of the EU legislature, first, to disregarding the requirement of proportionality in the adoption of the ‘necessary measures’, as set out in that article, and, second, to infringing Articles 30 and 31 of that
directive on the notification of decisions and the access to judicial and administrative redress procedures. Neither the general principle of the proportionality of EU law nor the latter two provisions would apply to the persons concerned, even though the procedural safeguards laid down in those provisions (the objective of which, as I have just noted, is to ensure that the rights conferred by that
directive remain effective) were conceived to protect the persons concerned specifically when those persons forfeit rights on grounds of public order, public security, public health or on other grounds, and are intended inter alia to govern any expulsion measures. (57)
68.      Therefore, to ensure the effectiveness of Directive 2004/38 and of the rights conferred by it, it must be possible for a person accused of improper or fraudulent conduct to contest that accusation and to be able to defend himself or herself, by availing himself or herself of effective procedural remedies, which also follows from the right to effective judicial protection guaranteed by the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. (58)
69.      With regard, in the second place, to the purpose of Article 35 of Directive 2004/38, I must observe, as the Commission noted in its written observations, that it may be that conduct constituting an ‘abuse of rights’ is not apparent when the abuse is committed but comes to light subsequently. The improper nature of a marriage of convenience is detected only after evidence regarding the formally married couple has been collected. (59) Therefore, an interpretation to the effect that the application of Article 35 is limited to the period during which the person is still a beneficiary of a derived right conferred by that
directive would amount to excluding from the scope of that provision a situation such as that at issue in the main proceedings in which the marriage of convenience has gone undetected for a sufficiently long period of time, thus rendering the purpose of the provision redundant.
70.      In addition, it should be observed that that provision expresses the general principle of EU law that abuse of rights is prohibited. Accordingly, the concept of a ‘marriage of convenience’ must be interpreted in the light of that principle. I will address this point in the next section.
71.      It follows that the teleological interpretation of Directive 2004/38 argues in favour of the applicability of Article 35.
C.      Combating the abuse of rights in the context of Article 35 of Directive 2004/38
1.      The objections put forward by the German Government
72.      As I have already mentioned, the German Government is of the view that Article 35 of Directive 2004/38 is not applicable in the present case. More specifically, it argued in its written observations that the subsequent review of the improper or fraudulent acquisition of a right of residence conferred by that
directive falls within the scope of national law, in accordance with the procedural autonomy of the Member States.
73.      I disagree with that view.
74.      In the first place, whilst it is indeed true that combating the abuse of rights is a matter for both EU law and national laws, the fact remains that the improper or fraudulent use of the EU legal system must be examined within the framework of that system, in order, inter alia, as the Commission rightly pointed out, to ensure the ‘uniform application’ of the provisions of EU law. (60) More specifically, I would point out that, in accordance with settled case-law of the Court, Directive 2004/38 does not deny the Member States any power of review over the entry into and residence in their territory of the family members of EU citizens. However, since a family member of a Union citizen who is not a national of a Member State derives rights of entry and of residence from Directive 2004/38 in the host Member State, the latter may restrict those rights only in compliance with Articles 27 and 35 thereof. (61)
75.      It follows that taking the view, as the German Government does, that the subsequent review of the improper or fraudulent acquisition of a right of movement and of residence under Directive 2004/38 falls within the scope of national law would mean, first, ignoring when the right conferred by that directive was originally acquired and, therefore, disregarding a key element, namely the EU legal framework which determined the acquisition of that right. Such disregard would be contrary, inter alia, to the general principle of legal certainty inherent in the EU legal order. It would be contrary to that principle to accept the approach under which the acquisition of the rights conferred by that
directive is subject to EU law, whereas the determination of the abusive nature of their acquisition is governed by national law. Second, such an approach would amount to accepting that each Member State can apply its own criteria to determine whether or not there is an abuse of the rights conferred by the directive, thus undermining the effectiveness of EU law. Directive 2004/38 must therefore apply when examining any improper use of that directive.
76.      In the second place, as I have just noted above, Article 35 of Directive 2004/38 gives concrete expression to the general principle of EU law that abuse of rights is prohibited. That principle seeks to guarantee the effectiveness of the fight against abusive practices. (62) In that context, although Article 35 of that
directive does not define the concept of an ‘abuse of rights’, it should be recalled that it is an autonomous concept of EU law on which the Court has already had occasion to give rulings. Thus, the Court has clarified that proof of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. (63) The objective and subjective cumulative conditions for abuse, formulated by the Court in its case-law, allow, in particular, a distinction to be drawn, significantly, between the lawful use and the improper use of the rights conferred by the directive. (64) Within the context of that concept, and in the light of recital 28, marriages of convenience can be defined for the purpose of that directive as a marriage contracted, first, without a genuine relationship between the parties, that relationship being purely artificial, and, second, with the sole aim of one spouse benefiting from the right to move and reside freely conferred on Union citizens and their family members by EU law which he or she would not otherwise enjoy. (65) However, it is important to note that the fact that two people may derive a certain advantage from their genuine marriage, such as, in particular, a right of residence, does not necessarily mean that that marriage is a marriage of convenience and that there has therefore been an abuse of rights. (66)
77.      That being said, the question remains as to the scope of the powers of review conferred on Member States by Article 35 of Directive 2004/38.
2.      The scope of the powers of review conferred on Member States by Article 35
78.      At this stage of my analysis, the answer to the question put by the referring court is therefore partially clear. Article 35 of Directive 2004/38 must be interpreted as allowing Member States to revoke, withdraw or terminate, including retroactively, a right of residence conferred by that
directive even though that right has already ceased to produce effects.
79.      Furthermore, I note that the rights conferred by Directive 2004/38, which were acquired improperly but have ceased to be exercised by the person holding them for some time (here: for a period of at least five years), not only could have produced legal effects in the past but may still continue to have such effects (currently and in the future). If a right conferred by that
directive is deemed to have been previously acquired improperly, the national authorities are permitted, pursuant to Article 35
thereof, to adopt the necessary measures to prevent an earlier abuse of rights from serving as the basis for obtaining additional current or future rights. Thus, even if that right of residence is no longer being exercised, which is the case here, a formal withdrawal of that right could potentially allow the national authorities to rectify the derived legal effects of that right. (67)
80.      In that connection, with regard to the discretion enjoyed by Member States in exercising that power of review, it should be observed that it is apparent from the wording of Article 35 of Directive 2004/38 that, by using the verb ‘may’, that provision simply authorises Member States to adopt some or all of the measures mentioned therein, namely to refuse, terminate or withdraw a right conferred by that
directive. However, nothing in the wording of that provision can be interpreted as indicating that Member States are obliged to adopt one, more or all of the measures set out. It is apparent from the words ‘necessary measures’ contained in the same provision that Member States have some leeway in determining which measures are essential, having regard to the specific abusive practices which constituted the abuse complained of. Thus, the national authorities may find, on an individual and case-by-case basis, that there is an abuse of rights, provided that the measures which they will adopt comply with the general principle of proportionality (suitability, necessity and proportionality stricto sensu) and are subject to the procedural safeguards provided for in the directive.
81.      That said, by its question referred for a preliminary ruling, the referring court still seeks to ascertain whether Article 35 of Directive 2004/38 allows the competent national authorities to investigate a marriage of convenience and, if appropriate, make a determination or reach a conclusion as to the existence of such a marriage.
82.      In the first place, it should be observed that the implementation of the ‘necessary measures’ set out in Article 35 of Directive 2004/38 necessarily means that Member States have a power to investigate an abuse of rights which may legitimately be suspected to have occurred when the right conferred by that directive was acquired. (68) More specifically, as the Commission argues, that power of investigation allows the national authorities, first, to assess and determine the facts and, second, potentially to classify as abusive for the purposes of that provision, in the light of those facts, the legal situations arising when that right was acquired. It is true that although the existence of an abuse of rights does not constitute stricto sensu a measure refusing, terminating or withdrawing a right conferred by the directive, that finding is, however, a necessary stage prior to the adoption of any measure set out in that provision, including, logically, even where that right has already ceased to produce effects. Accordingly, as the Minister for Justice, Ireland and the Commission contend, the power to investigate is an autonomous power of the Member States which may lead to the finding of an abuse of rights or fraud. It therefore falls within the scope of the Member States’ procedural autonomy and must comply with the principles of equivalence and effectiveness, as well as with Articles 7 and 9 of the Charter of Fundamental Rights of the European Union.
83.      In the second place, I must add, as the parties discussed at the hearing, that a time limit on the possibility, for the Member States, to adopt measures pursuant to Article 35 of Directive 2004/38 also falls within the scope of the Member States’ procedural autonomy. (69)
84.      In the third place, it should be recalled that, since EU law does not lay down specific sanctions to combat abuse and fraud in connection with rights conferred by that directive, the possibility of providing for that type of sanction falls within the scope of the domestic legal systems of the Member States, provided that those sanctions are effective, non-discriminatory and proportionate. (70)
85.      I note, in the fourth and final place, that, at the hearing, in answer to a question put by the Court, Ireland stated that, in order to obtain Irish citizenship by naturalisation, a person must have resided lawfully in Ireland for a certain period of time. However, Ireland made the point at the hearing that the main proceedings do not concern a forfeiture of Irish nationality by the appellant in the main proceedings.
86.      In any event, and for the sake of completeness, it should be recalled that, as is apparent from settled case-law, if the forfeiture of Irish nationality were to entail the loss of citizenship of the Union and the rights attaching thereto, that forfeiture should have due regard to the principle of proportionality so far as concerns the consequences of the forfeiture for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law. (71)
V.      Conclusion
87.      In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Court of Appeal (Ireland) as follows:
Article 35 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011,
must be interpreted as allowing the competent national authorities to investigate and, if appropriate, make a determination or reach a conclusion that a person who previously benefited from a derived right to move freely under that directive committed a fraud or an abuse of rights, where the residence of that person in the Member State concerned is no longer based on the directive, including where he or she has in the meantime acquired the nationality of that Member State.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 (OJ 2011 L 141, p. 1, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34) (‘Directive 2004/38’).
3      See, in that
regard, judgments of 7 July 1992, Singh
(C‑370/90, EU:C:1992:296, paragraph 24); of 23 September 2003, Akrich (C‑109/01, EU:C:2003:491, paragraphs 55 to 58); and of 19 October 2004, Zhu and Chen (C‑200/02, EU:C:2004:639, paragraphs 34 to 37). In that last judgment, the Court simply rejects a Member State’s line of argument based on an alleged abuse of rights. With regard to the case-law in which the Court has mentioned Article 35 of Directive 2004/38 without reference having been made to that provision in the operative part of the judgment, see judgment of 25 July 2008, Metock and Others
(C‑127/08, ‘the judgment in Metock’, EU:C:2008:449, paragraph 75). See also judgment of 26 March 2019, SM (Child placed under Algerian kafala)
(C‑129/18, EU:C:2019:248), and the Opinion of Advocate General Campos Sánchez-Bordona in that case (points 112 to 117).
4      Judgment of 18 December 2014, McCarthy and Others (C‑202/13, ‘the judgment in McCarthy and Others’, EU:C:2014:2450).
5      See the judgment in McCarthy and Others (paragraph 58 and the operative part).
6      Judgment of 14 November 2017, Lounes (C‑165/16, ‘the judgment in Lounes’, EU:C:2017:862).
7      Judgment of 10 September 2019, Chenchooliah (C‑94/18, ‘the judgment in Chenchooliah’, EU:C:2019:693).
8      Although the question referred for a preliminary ruling concerns, in actual fact, only the loss of the status of beneficiary of a right conferred by Directive 2004/38 by virtue of the acquisition of the nationality of the host Member State, I am of the opinion that, with a view to determining the applicability of Article 35 of that directive, the naturalisation of the person concerned is just one of the scenarios that entails the loss of that status. A beneficiary under the directive can lose his or her status for other reasons, such as in particular departure from that Member State. See point 63 of the present
Opinion. Thus, it appears justified, to me, to adopt a general approach which is not limited strictly to the loss of the status of beneficiary by naturalisation in order to interpret that provision, in particular for reasons of the sound administration of justice. See, by analogy, my Opinion in JYSK (C‑117/24, EU:C:2025:372, point 60).
9      See, inter alia, the judgment in Metock (paragraph 82); judgments of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 35); and of 1 August 2025, Jobcenter Arbeitplus Bielefeld (C‑397/23, EU:C:2025:602, paragraph 44 and the case-law cited).
10      See, inter alia, the judgments in Lounes (point 31) and in McCarthy and Others (paragraphs 31 and 33 and the case-law cited).
11      See, inter alia, the judgments in Lounes (paragraph 32) and in McCarthy and Others (paragraph 34 and the case-law cited).
12      See, inter alia, the judgment in Lounes (paragraph 34 and the case-law cited). In that regard, it should be recalled that the Court has held that ‘if Union citizens were not allowed to lead a normal life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed’ (see the judgment in Metock (paragraph 62)).
13      See, by analogy, the judgment in Lounes (paragraph 43).
14      It is apparent from the request for a preliminary ruling that in 2010 the appellant in the main proceedings was issued a five-year residence card as a family member of a Union citizen. The referring court does not state, however, whether
he was granted a right of permanent residence pursuant to Article 16 of Directive 2004/38.
15      At the hearing, R.S. stated that he acquired Irish nationality on 23 April 2016.
16      As a reminder, the case which gave rise to that judgment concerned a Spanish national who, after residing in the United Kingdom since 1996, had acquired British nationality by naturalisation in the course of 2009, whilst retaining her Spanish nationality. In 2014, that national had married an Algerian national. The latter had applied for a residence card as the spouse of a Union citizen, an application which had been refused by the Secretary of State for the Home Department (United Kingdom) on the ground that he had overstayed in the United Kingdom in breach of immigration controls.
17      See, by analogy, the judgment in Lounes (paragraphs 41 and 44). In that judgment, the Court held, first, that the Spanish national, who had been naturalised by the United Kingdom, ceased to fall within the definition of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 and, second, that that directive no longer governed her residence in that Member State, as that residence was inherently unconditional. Accordingly, the Court declared that her spouse, a third-country national, did not benefit from a derived right of residence in the Member State in question on the basis of the provisions of that  directive. See also Opinion of Advocate General Bot in Lounes (C‑165/16, EU:C:2017:407).
18      The Court stated in paragraph 34 of the judgment in Lounes that ‘it is clear from the wording of Article 3(1) of Directive 2004/38 that Union citizens who move to or reside in a “Member State other than that of which they are a national”, and their family members … who accompany or join them, fall within the scope of the directive and are beneficiaries of the rights conferred by it’. See point 29 of the present
Opinion.
19      It is sufficient to note that Directive 2004/38 does not contain a chapter entitled ‘Scope’. It does, however, have a ‘Chapter I’, entitled ‘General provisions’, which includes, inter alia, Article 1, entitled ‘Subject’, and Article 3, entitled ‘Beneficiaries’.
20      See judgments of 17 November 1983, Merck (292/82, EU:C:1983:335, paragraph 12), and of 1 August 2022, Familienkasse Niedersachsen-Bremen (C‑411/20, EU:C:2022:602, paragraph 51).
21      See judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 50); of 11 April 2019, Tarola (C‑483/17, EU:C:2019:309, paragraph 37); and of 11 January 2024, Inditex (C‑361/22, EU:C:2024:17, paragraph 43 and the case-law cited).
22      See, inter alia, the French-language version (‘refuser, annuler ou retirer’), the German-language version (‘zu verweigern, aufzuheben oder zu widerrufen’), the Spanish-language version (‘denegar, extinguir o retirar’), the Italian-language version (‘rifiutare, estinguere o revocare’), the Lithuanian-language version (‘atsisakyti, nutraukti ar panaikinti’) and the Romanian-language version (‘refuza, anula sau retrage’).
23      See, inter alia, the French-language version (‘tout droit conféré’), the German-language version (‘die durch diese Richtlinie verliehenen Rechte’), the Spanish-language version (‘cualquier derecho conferido’), the Italian-language version (‘un diritto conferito’), the Lithuanian-language version (‘bet kokią šia direktyva suteiktą teisę’) and the Romanian-language version (‘orice drept conferit’).
24      For example, the refusal to grant a residence card or to renew it. See, in that
regard, point 53 of the present
Opinion.
25      In English, the verb ‘terminate’ generally means to put an end to an ongoing situation, whereas the verb ‘withdraw’ can simply mean to remove, but can also mean to retract or to revoke. In Italian, the use of the verb ‘estinguere’ also calls to mind an ongoing situation, whereas ‘revocare’ suggests the withdrawal of a past declaration or an established situation without however requiring that someone be
in possession of what is revoked. The same goes for the German-language version, with the verb ‘widerrufen’ meaning ‘to retract what has been stated or declared’.
26      See, in that regard, point 49 of the present
Opinion.
27      It cannot be ruled out that certain national laws may provide for retroactive termination or limit the scope of termination to effects that have yet to be executed. Here, it is apparent from the order for reference that the decision at issue in the main proceedings concerns the ‘determination’, the ‘finding’ or the ‘conclusion’ drawn from the situation or from the past conduct of the appellant in the main proceedings, in particular the fact that the right was ‘deemed withdrawn from the outset’. Thus, the Minister for Justice appears to be reviewing a past declaration and is not withdrawing a current right from the appellant, but rather the right which had been granted to him in the past and from which the appellant in the main proceedings currently no longer benefits. At the hearing, Ireland explained that such a finding amounts to taking the view that the right of residence, which has in practice been exercised, is deemed to have never existed legally in the light of abusive practices, which is a matter for the referring court to determine.
28      With regard to the structure of Directive 2004/38, see, inter alia, Chapter II, entitled ‘Right of exit and entry’, and Chapter III, entitled ‘Right of residence’ (for up to three months (Article 6) and for more than three months (Article 7). The latter chapter also governs the conditions for the retention of the right of residence, the conditions under which that right ceases to exist (Articles 12 to 14) and the procedural safeguards (Article 15)). See also Chapter IV, entitled ‘Right of permanent residence’ (Articles 16 to 21).
29      See points 34 and 49 of the present
Opinion. In other words, the system introduced by Directive 2004/38 covers the ‘entire lifecycle’ of the exercise of the freedom of movement by a Union citizen and his or her family members. See Opinion of Advocate General Szpunar in Chenchooliah (C‑94/18, EU:C:2019:433, points 70 to 75).
30      See point 47 of the present
Opinion. By contrast, since Article 35 of Directive 2004/38 does not concern a right of movement and of residence from which the person concerned benefited but which should be restricted on grounds of public policy, public security or public health, it does not fall within the scope of Article 1(c) of that directive. Such a restriction on the grounds mentioned is covered by the provisions of Chapter VI, entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security
or public health’.
31      In other words, the time at which a right conferred by Directive 2004/38 is acquired logically determines the application of that directive. I will return to the significance of this element in points 75 and 82 of the present
Opinion. In addition, with regard to evidence of an abusive practice, see point 76 of the present
Opinion.
32      The provisions in question are, inter alia, provisions on publicity (Article 34), the repeal of earlier directives (Article 38), reports on the application of the directive (Article 39), arrangements for transposition (Article 40), the directive’s entry into force (Article 41) and its addressees (Article 42).
33      Article 36 of Directive 2004/38, entitled ‘Sanctions’, provides that ‘Member States shall lay down provisions on the sanctions applicable to breaches of national rules adopted for the implementation of [that] Directive and shall take the measures required for their application. The sanctions laid down shall be effective and proportionate. …’ (emphasis added). As a reminder, Article 36 of Directive 2004/38
codifies the related settled case-law of the Court. See, inter alia, judgments of 12 December 1989, Messner (C‑265/88, EU:C:1989:632, paragraph 15), and of 30 April 1998, Commission v Germany (C‑24/97, EU:C:1998:184, paragraph 14 and the case-law cited).
34      See Article 5(5) on the reporting of the presence of the persons concerned in the host Member State within a reasonable period of time, and Article 8(2) Article 9(3) and Article 20(2) on the administrative formalities for Union citizens and their family members (obligations to register themselves and to apply for a residence card).
35      The measures laid down in Article 36 of Directive 2004/38 are general in nature, whereas, as the Court has observed, measures that may be adopted by the national authorities, on the basis of Article 35 of that directive, in order to refuse, terminate or withdraw a right conferred by the directive ‘must be based on an individual examination of the particular case’ and, therefore, are specific in nature. See the judgment in McCarthy and Others (paragraphs 49 and 52 and the case-law cited).
36      See point 47 of and footnote 34 to the present
Opinion.
37      Proposal for a European Parliament and Council directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, of 29 June 2001, COM(2001) 257 final (OJ 2001 C 270 E, p. 150).
38      Council Common Position (EC) No 6/2004 of 5 December 2003 (OJ 2004 C 54 E, p. 12, in particular p. 32). Emphasis added.
39      Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, of 2 July 2009, COM(2009) 313 final, p. 16 (‘the 2009 Commission Guidelines’).
40      Commission Notice,
Guidance on the right of free movement of EU citizens and their families, of 6 December 2023, C(2023) 8500 final (OJ C,
C/2023/1392) (‘the 2023 Commission Guidelines’).
41      See the 2009 Commission Guidelines, p. 19, and the 2023 Commission Guidelines, p. 72.
42      That judgment was given in the context of proceedings between a Mauritian national residing in Ireland and the Minister for Justice and Equality (Ireland) concerning a decision to deport her, in accordance with a provision of Irish legislation, following the return of her spouse, a Union citizen, to the Member State of which he was a national, namely Portugal, where he was serving a prison sentence. In accordance with national law, the deportation order automatically imposed an indefinite ban on entry into Irish territory.
43      See the judgments in Chenchooliah (paragraph 62) and in Lounes (paragraphs 38 to 42). With regard to the ‘dynamic’ or ‘evolving’ nature of the concept of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, see the judgment in Metock (paragraphs 73, 80 and 99). See also Opinion of Advocate General Szpunar in Chenchooliah (C‑94/18, EU:C:2019:433, points 47 to 67 and 70).
44      See the judgment in Chenchooliah (paragraph 70).
See, also, point 48 of and footnote 28 to the present
Opinion.
45      See the judgment in Chenchooliah (paragraph 70).
46      See, to that effect, the judgment in Chenchooliah (paragraphs 59 to 63).
47      See, to that effect, the judgment in Chenchooliah (paragraph 79). As a reminder, Article 15 of Directive 2004/38, entitled ‘Procedural safeguards’, provides, in paragraph 1 thereof, that ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.’ Paragraph 3 of that article provides that ‘the host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies.’ According to the Court, Article 15 of that directive lays down ‘the rules applicable when a temporary right of residence under the directive comes to an end, in particular where a Union citizen or one of his family members who, in the past, had a right of residence of up to 3 months, or longer than 3 months, by virtue of Article 6 or Article 7 of that directive respectively, no longer satisfies the requirements for the grant of the right of residence concerned and may therefore, in principle, be expelled by the host Member State’ (see paragraph 74 of that judgment).
48      See footnote 42 to the present
Opinion.
49      See the judgment in Chenchooliah (paragraph 65).
50      See the judgment in Chenchooliah (paragraph 66).
51      See the judgment in Chenchooliah (paragraph 68).
52      See point 57 of the present
Opinion. As certain legal writers have noted, ‘the protection attached to Union citizenship is thus prolonged: third-country nationals who enjoyed a derived right of residence in the past are more protected than third-country nationals who have never been bound to a Union citizen.’ See Ritleng, D., ‘Scope and meaning of Article 15 of Directive 2004/38: Yes but no: Chenchooliah’, Common Market Law Review, vol. 57, No 4, 2020, pp. 1183 to 1200, in particular p. 1195.
53      See point 56 of the present
Opinion.
54      In the present case, the effect of that retroactive loss of the rights conferred by Directive 2004/38, as the referring court states, is that those rights are deemed to have been ‘withdrawn from the outset’.
55      See, inter alia, the judgment in Metock (paragraph 82); judgments of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 35); and of 1 August 2025, Jobcenter Arbeitplus Bielefeld (C‑397/23, EU:C:2025:602, paragraph 44 and the case-law cited).
56      As is apparent from recital 25 of Directive 2004/38, those procedural safeguards are intended, inter alia, to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State.
57      See footnote 47 to the present
Opinion.
58      As a reminder, Article 31(3) of Directive 2004/38 provides that ‘the redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.’
59      See, inter alia, Communication from the Commission to the European Parliament and to the Council – Helping national authorities fight abuses of the right to free movement: Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens (SWD(2014) 284 final), COM(2014) 604 final, section 4.2 (‘the Marriages of Convenience Handbook’). See, also, COM(2014)284 final, section 4.5, p.42.
60      See, by analogy, judgment of 23 March 2000, Diamantis (C‑373/97, EU:C:2000:150, paragraph 34 and the case-law cited).
61      See the case-law cited in point 58 of the present
Opinion.
62      The general principle that abuse of rights is prohibited was laid down in the judgment of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraphs 52 and 53). The Court recognised it, expressly, as a general principle of EU law in the judgment of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 38). See, more recently, judgment of 10 November 2011, Foggia – Sociedade Gestora de Participações Sociais (C‑126/10, EU:C:2011:718, paragraph 50). See, in that regard, Tridimas, P.T., ‘The general principles of law: Who needs them?’, Les Cahiers de Droit, vol. 52, No 1, 2015, pp. 419 to 441, in particulier p. 427.
63      See judgment of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraphs 52 and 53), and the judgment in McCarthy and Others (paragraph 54 and the case-law cited). See also the Opinion of Advocate General Szpunar in McCarthy and Others (C‑202/13, EU:C:2014:345, points 108 to 115).
64      In particular, in the context of the free movement of persons, the Court has already recalled that the fact that a Member State national has chosen to acquire a professional qualification in a Member State other than that in which he resides in order to benefit there from more favourable legislation is not, in itself, sufficient grounds to conclude that there is an abuse of rights. See, by analogy, judgment of 17 July 2014, Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 50), and Opinion of Advocate General Wahl in those joined cases (C‑58/13 and C‑59/13, EU:C:2014:265, points 91 and 92).
65      See recital 28 of Directive 2004/38 and the 2023 Commission Guidelines, p. 72: ‘abuse can also take the form of other relationships of convenience’.
66      See, by analogy, judgments of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 27), and of 23 September 2003, Akrich (C‑109/01, EU:C:2003:491, paragraph 55). I note, in that regard, as the Commission has stated, that ‘a marriage cannot be considered as a marriage of convenience simply because it brings an immigration advantage, or indeed any other advantage. The quality of the relationship is immaterial to the application of Article 35’. See the 2009 Commission Guidelines, p. 15. For clues to potential abuse that may trigger an investigation, see the Marriages of Convenience Handbook, p. 7, Section 4.1. See also judgments of the EFTA Court of 9 February 2021, Kerim (E-1/20, paragraph 36), and of 23 November 2021, Q and Others (E-16/20, paragraphs 59 to 64).
67      This would be the case, inter alia, with social allowances or welfare benefits which could still be paid to or claimed by a Union citizen or by his or her family members who are third-country nationals, on the basis of the total number of years of unlawful residence. In such circumstances, the refusal to pay social allowances or even a demand by the national authorities for their repayment is, inter alia, conceivable.
68      It is apparent from the 2009 Commission Guidelines (p. 16) and from the 2023 Commission Guidelines (p. 71) that Directive 2004/38 ‘does not prevent Member States from investigating individual cases where there is a well-founded suspicion of abuse. However, EU law prohibits systematic checks’.
69      The possibility for
the person concerned effectively to challenge a charge of abuse of rights or fraud and to exercise
his or her rights of defence effectively could be impaired if the national authorities bring that charge only after a lengthy period of time.
70      Such as, in particular, cancelling the effects of a marriage of convenience as a matter of civil law or administrative fines. See, in that regard, the 2009 Commission Guidelines, p. 16, and the 2023 Commission Guidelines, pp. 71 and 72.
71      See judgments of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104, paragraphs 39, 41, 42, 45, 55 and 56), and of 12 March 2019, Tjebbes and Others (C‑221/17, EU:C:2019:189, paragraphs 30 to 32 and 40). See also judgments of 18 January 2022, Wiener Landesregierung (Revocation of an assurance of naturalisation) (C‑118/20, EU:C:2022:34); of 21 October 2020, Stadt Duisburg (Maintenance of rights acquired after naturalisation) (C‑720/19, EU:C:2020:847); and of 5 September 2023, Udlændinge- og Integrationsministeriet (Loss of Danish nationality) (C‑689/21, EU:C:2023:626).