ECLI:EU:C:2026:770

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OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 17 September 2026 (1)

Case C‑460/25 [Makran] (i)

Minister for Justice

(Request for a preliminary ruling from the Supreme Court (Ireland))

( Reference for a preliminary ruling – Right to move and reside within the territory of the Member States – Directive 2004/38/EC – Family members of a Union citizen – Derived right of residence – Article 35 – Fraud – Decision to revoke a permanent residence permit – Proportionality test – Scope )

I. Introduction

1. The present request for a preliminary ruling from the Supreme Court (Ireland) raises a simple yet fundamental question: when a third-country national attempts to obtain (permanent) residence in a Member State through fraud, must that Member State, in revoking rights conferred by Directive 2004/38/EC, (2) apply a proportionality test which amounts to treating that third-country national in the same way as a beneficiary, within the meaning of that directive, whose rights are merely restricted, or does it suffice that the procedure establishing whether there has been fraud complies with the principle of proportionality?

2. The question thus is not whether fraud may be sanctioned (the answer is yes, it may); rather, the question is whether the proportionality requirement set out in Article 35 of Directive 2004/38 concerns only the connection between the fraud and the measure adopted, or whether it also requires an assessment of the personal consequences of revocation for the individual who committed the fraud.

3. The argument that I shall make in this Opinion is that in order for Article 35 of Directive 2004/38 not to be devoid of any meaning, the proportionality requirement referred to in that article refers solely to the connection between the fraud and the measure adopted. Any further account taken of the personal consequences for the individual concerned is outside the scope of Article 35 and is addressed in other circumstances and by other provisions of EU law.

II. Legal framework

A. Directive 2004/38

4. Article 2 of Directive 2004/38, headed ‘Definitions’, provides that:

‘For the purposes of this Directive:

1. “Union citizen” means any person having the nationality of a Member State;

2. “family member” means:

(a) the spouse;

…’

5. Article 3 of the directive is headed ‘Beneficiaries’, and paragraph 1 thereof reads as follows:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

6. Chapter IV of the same directive is entitled ‘Right of permanent residence’ and contains Article 16, (3) which provides:

‘1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’

7. Chapter VI of that directive is entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’ and comprises Articles 27 to 33.

8. Article 27 of the same directive, headed ‘General principles’, provides, in paragraphs 1 and 2:

‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.’

9. Article 28 of Directive 2004/38, entitled ‘Protection against expulsion’, provides, in paragraphs 1 and 2:

‘1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.’

10. Under Article 31 of that directive, entitled ‘Procedural safeguards’:

‘1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

…

3. 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.

…’

11. Article 35 of Directive 2004/38 reads as follows:

‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this 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.’

12. Pursuant to Article 36 of Directive 2004/38, headed ‘Sanctions’:

‘Member States shall lay down provisions on the sanctions applicable to breaches of national rules adopted for the implementation of this Directive and shall take the measures required for their application. The sanctions laid down shall be effective and proportionate. Member States shall notify the Commission of these provisions not later than 30 April 2006 and as promptly as possible in the case of any subsequent changes.’

B. Irish law

13. Directive 2004/38 was transposed into Irish law by European Communities (Free Movement of Persons) Regulations 2015 of 1 December 2015 (S.I. No 548/2015 of 11 December 2015).

III. Facts, national procedure and question referred

14. ST, the applicant in the main proceedings, is a Pakistani national who arrived in Ireland no later than April 2004 on a student visa. He is not known to the Garda Síochána (the Irish national police force) and has been in employment for most of the time he has spent in Ireland. On 10 January 2011, he married WK, a Hungarian national. The exact date on which WK arrived in Ireland is not known, but it appears to have been sometime in 2010. On 6 July 2011, ST was granted a residence card on the grounds that his wife was exercising her rights under EU law.

15. On 20 May 2016, ST submitted an application for a permanent residence card to the competent Minister for Justice (Ireland) (‘the Minister’) on the basis of the provisions of the national law transposing Article 16(2) of Directive 2004/38, which provides that a third-country national, who is the spouse of a citizen of a Member State who exercises his or her rights to free movement and who has ‘legally resided’ with that Union citizen, is entitled to permanent residence in the host Member State after having resided there for a continuous period of five years.

16. With regard to evidence of WK’s residence and employment during that five-year period, ST submitted to the Minister a book of invoices containing 92 entries and utility bills intended to demonstrate that WK had worked as a self-employed childminder up until the date that the application was lodged. The invoices dated from 7 December 2015 to 21 May 2016 and were intended to attest earnings of approximately EUR 3 000 for the period between 4 January 2016 and 21 May 2016. ST was consequently granted a permanent residence card on 14 July 2016.

17. In May 2018, the Minister notified ST of his opinion that those invoices were false and misleading and that the marriage to WK may have been a marriage of convenience. That conclusion was confirmed by a first-instance decision taken by the Minister’s officials on 19 November 2018.

18. ST subsequently applied for a review of that decision. In the course of that review, ST stated in his submissions that WK had in fact left Ireland on an unspecified date in January 2016.

19. By a review decision of 13 December 2021, the decision to revoke the permanent residence card was upheld on grounds that were somewhat different from those of the first-instance decision. The Minister acknowledged that it had not been established that the marriage was indeed a marriage of convenience, but nevertheless found that it had not been proven that WK had actually carried out the self-employed activity of a childminder in 2016 and that most of the invoices submitted in support of the application were fraudulent.

20. The Minister pointed out that it had been stated, in the submissions made by ST during the review proceedings, that WK had left Ireland in January 2016. In those circumstances, it would not have been possible to submit invoices for childminding services covering dates up to May 2016. It was apparent from the records of the Department of Social Protection (Ireland) that WK had received payment for one week’s work in 2016 and that this appeared to correspond to a payment received for employment in December 2015. The Minister therefore stated that he was not satisfied that WK had carried out any genuine self-employed work as a childminder in 2016.

21. The Minister therefore found that ST had submitted documents which he knew to be false and misleading. It followed that, by reason of that fraud, the five-year period had not been completed and that ST was not entitled to permanent residence in Ireland. The Minister therefore invoked the powers bestowed upon him provided for under national law, which gives effect in Irish law to the provisions of Article 35 of Directive 2004/38, namely to revoke a residence card on the grounds of fraud and abuse of rights.

22. ST then brought an action against the review decision of 13 December 2021 before the High Court (Ireland), challenging, inter alia, the assessment of proportionality. That court concluded that the Minister was required, under Article 35 of Directive 2004/38, to carry out an individualised assessment of proportionality.

23. On appeal, the Court of Appeal (Ireland) held that the High Court had been incorrect to consider that Article 35 of that directive required such an assessment of proportionality before revoking the permanent residence card.

24. The Supreme Court, which is the referring court in the present case, granted ST leave to appeal against the decision of the Court of Appeal, solely on the question of the interpretation of Article 35 of Directive 2004/38.

25. The referring court points out that ST does not contest the finding that fraud had been committed in the context of the application procedure for a permanent residence card. The legal question before that court is thus whether the Minister, having concluded that ST had obtained the right of residence fraudulently, was nevertheless required, before adopting the decision to revoke the right of permanent residence, to assess the impact of that revocation on ST, on the basis of a range of personal factors such as the duration of his residence in Ireland.

26. In that context, the referring court considers that Article 35 of Directive 2004/38 is open to several possible interpretations, as discussed below.

27. That court is of the view that the principle of proportionality, in the event of the revocation of a residence permit due to fraud on the basis of Article 35 of Directive 2004/38, implies that such revocation must be proportionate solely to the seriousness of the fraud at issue. However, it acknowledges that another interpretation, according to which compliance with the principle of proportionality requires an individual assessment of the consequences of the revocation decision for the person concerned, in particular in view of the reference in Article 35 of Directive 2004/38 to the procedural safeguards provided for in Articles 30 and 31 thereof, may be envisaged.

28. Moreover, the referring court states that, in accordance with national law, the revocation of ST’s right of permanent residence was not accompanied by an expulsion order. Before any such order could be made, the Minister would have had to follow an entirely separate procedure during which ST would have had the right to submit observations on his personal circumstances and to have those observations taken into account for the purposes of any decision to adopt such an order. The revocation of that right therefore does not automatically result in the expulsion of the person concerned; it does, however, make ST’s status in Ireland more precarious, in that he risks being expelled and may also be prevented from seeking employment.

29. It is against that background that, by order of 27 June 2025, received at the Registry of the Court of Justice on 8 July 2025, the Supreme Court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Where it has been established in the course of a review decision in which the applicant has participated that an applicant who sought and obtained permanent residence in the host [Member] State in accordance with Article 16 of Directive [2004/38] has supplied materially misleading and fraudulent documentation in support of that application and which has materially affected the decision to grant such permanent residence, may that host [Member] State revoke the decision to grant permanent residence on that ground alone? Or does Article 35 of Directive [2004/38] require that the host State conduct an individualised proportionality assessment regarding the potential impact of any decision to revoke the permanent residence on the applicant in question?’

IV. Proceedings before the Court

30. By its decision of 27 June 2025, the referring court asked the Court to deal with the present reference for a preliminary ruling under the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice.

31. By order dated 8 September 2025, the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, not to grant that request.

32. The applicant, the Czech and German Governments, Ireland and the Greek and Polish Governments, as well as the European Commission, submitted written observations.

33. The applicant, the German Government, Ireland, the Greek Government and the Commission attended the hearing, which was held on 3 June 2026.

V. Assessment

34. By its question, the referring court requests, in essence, clarification as to whether Article 35 of Directive 2004/38 must be interpreted as requiring a Member State, seeking to adopt a measure to refuse, terminate or withdraw a right conferred by that directive for reason of fraud, to ensure that such a measure is proportionate to the nature and gravity of the fraud or whether, in addition, account must be taken of the potential impact of any such decision on the circumstances of the person concerned.

A. Preliminary remarks

1. Admissibility of the question referred

35. In its written submissions, the German Government appears to harbour doubts as to the admissibility of the question on the ground that it appears to be framed too broadly in that the real issue is not whether a general proportionality test is always required, but whether, in the case of fraud, there is anything atypical that could render revocation disproportionate, and that the facts described by the referring court do not show any circumstance suggesting that withdrawing the permanent residence card could be disproportionate. At most, according to that government, the referring court must check whether any unusual aspects exist.

36. Those points raised by the German Government concern the substance of the present case in that they already anticipate the interpretation of Article 35 of Directive 2004/38. They are not such as to alter the admissibility of the question referred.

2. The principle of proportionality

37. The principle of proportionality features prominently in any polity grounded in the rule of law. Its purpose is to constrain executive discretion and protect individual liberty from arbitrary public overreach.

38. The EU legal order is no exception. From a very early stage, the Court of Justice has addressed that principle in its case-law, (4) gradually establishing it as a general principle of EU law. (5) It was subsequently codified and introduced into the Treaties and now figures in Article 5(4) TEU, in Protocol (No 2) on the application of the principles of subsidiarity and proportionality, and in Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). It is defined in Article 5(4) TEU in the following manner: ‘the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. A proportionality assessment is thus meant to determine whether a restrictive measure is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it. (6) The principle applies both to acts of the European Union and to those of the Member States when they act within the scope of EU law. In that connection, it plays a crucial part in the fundamental rights protection established by the Charter. In legal doctrine, the principle of proportionality has fittingly been described as ‘the most oft-invoked and, in terms of its role in constitutional adjudication, the most influential principle of EU law’. (7)

39. I shall come back to the principle in this Opinion. Suffice it to state, at this stage, that it constitutes a horizontal principle, which cuts across and affects every facet of public action which falls within the scope of EU law. A public entity cannot escape the application of the principle of proportionality when it acts within that scope.

3. The principle of prohibiting abuse of rights and fraud

40. The fact that individuals must not improperly or fraudulently take advantage of provisions of EU law (8) constitutes an old truth (or in plain legal terms: a general principle of EU law). (9) More specifically, the abuse of rights as a limitation of rights deriving from a fundamental freedom was first introduced with respect to the freedom to provide services (10) and has been gradually extended to other freedoms. (11) It was later clarified by the Court that that general principle also encompassed the prohibition of fraud. (12)

41. That said, despite possible first intuitive appearances, the prohibition of the abuse of rights and fraud addresses two quite different phenomena. In the first place, the concept of abuse of rights is by definition delicate since there is, to begin with, a genuine right, which is (simply) being relied on in an abusive manner. In this connection, in accordance with the case-law of the Court, proof of abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, secondly, 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. (13) In a similar vein, the non-binding but nevertheless instructive Commission Notice on the directive (14) defines abuse as an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under EU law which, albeit formally observing the conditions laid down by EU rules, does not comply with the purpose of those rules. (15) By contrast, the matter is more clear-cut for fraud: there has never been a right to begin with, but rather there has typically been a lie, manipulation or falsification. (16) The same Commission Notice defines fraud as the conduct of a person who seeks to break the law by presenting fraudulent documentation alleging that the formal conditions have been duly met or which is issued on the basis of false representation of a material fact concerning the conditions attached to the right of residence. (17) In my view, once fraud has been established, that is the end of the matter. There is no further test comparable to the one requiring proof of abuse as described in the preceding sentence.

B. Proportionality and fraud regarding rights conferred by Directive 2004/38

42. The referring court seeks clarification on the scope of the principle of proportionality referred to in Article 35 of Directive 2004/38.

43. Before turning to that provision, I deem it helpful to place it into the context of Directive 2004/38 and to stress the fundamental difference, reflected in the directive, between restricting and refusing (18) a right.

1. Restricting a right conferred by Directive 2004/38 – Article 27 et seq.

44. Directive 2004/38, which seeks to codify previous secondary law (19) as well as the case-law of the Court in the domain covered by it, governs the entire lifecycle of the exercise of free movement by a Union citizen and his or her family members from the time of their arrival in a Member State other than that of which that citizen is a national up until their departure from that Member State. (20) A mere reading of the different chapters and provisions of the directive is enough to assess the system set-up therein. Thus, after the general provisions in Chapter I setting out the subject, definitions and beneficiaries, Chapter II deals with ‘Right of exit and entry’. In turn, Chapters III to V provide further detail on rights of residence in its various forms, (21) while Chapter VI has as its object restrictions on the right of entry and the right of residence on grounds of public policy, public security and public health.

45. It is worth taking a closer look at the provisions of Chapter VI of Directive 2004/38.

46. Against the background of the fundamental principles of Union citizenship (22) and the free movement of persons under the FEU Treaty (23) in an internal market ‘without internal frontiers’ (24) and an area of freedom, security and justice ‘without internal frontiers’, (25) free movement, including rights of entry and residence, is, in principle, the norm, while restrictions on the rights of entry and residence are, in principle, the exception. (26) Ergo, as per Article 27 of Directive 2004/38, Member States can only restrict the freedom of movement and residence on grounds of public policy, public security and public health. (27) Moreover, the grounds of public policy and public security are subject to a strict proportionality test: measures taken by Member States must be based exclusively on the personal conduct of the individual concerned. (28) Such conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. By contrast, considerations of general prevention are not accepted. (29)

47. With respect to the specific issue of expulsion, pursuant to Article 28 of Directive 2004/38, the (host) Member States must take account of considerations such as how long the individual concerned has resided in its territory, his or her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his or her links with the country of origin. (30)

48. I understand that Articles 27 and 28 of Directive 2004/38, which incidentally codify previous case-law of the Court, (31) constitute, at least in part, a concrete expression of the principle of proportionality in that the EU legislature seeks to provide precise guidance to Member States on how to restrict freedom of movement. Those provisions serve as a manual for Member States; accordingly, they provide an explanatory value in the sense that what results from them is already part of the principle of proportionality as a general principle of EU law.

2. Refusing, terminating or withdrawing a right conferred by Directive 2004/38 – Article 35

49. Restricting a right is quite different to refusing, terminating or withdrawing a right. Whereas in the former situation the right continues to exist, albeit in a reduced form, in the latter situation the right has either never existed or ceases to exist altogether. Article 35 of Directive 2004/38 addresses the latter situation by installing a mechanism for sanctioning fraud a posteriori, that is to say, once it has occurred. (32)

50. That article, headed ‘Abuse of rights’, stipulates that Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure is to be proportionate and subject to the provisional safeguards provided for in Articles 30 and 31 of the same directive.

51. A number of elements can be inferred from examining the wording, context and objectives of Article 35 of Directive 2004/38.

52. First, the provision aims to combat abuse of rights or fraud when it comes to obtaining a right conferred by the directive, (33) and it is an expression of the general principle that the abuse of rights is prohibited. (34) In addition, in my view, it is a concrete expression by the EU legislature of the principle of sincere cooperation, enshrined in Article 4(3) TEU. Tolerating or allowing for abuse of rights or fraud, in effect, in the words of the third subparagraph of that provision, ‘could jeopardise the attainment of the Union’s objectives’, in this instance the objectives of Directive 2004/38, that is to say, a system in which only beneficiaries as defined in Article 3 thereof enjoy freedom of movement and rights of residence.

53. In other words, the rationale of Article 35 of Directive 2004/38 is to ensure that rights which should have never existed in the first place can be refused, terminated or withdrawn. Contrary to other provisions in the directive, this is not one which restricts a right, as the right is taken away altogether. (35) In that connection, the Court has recently held that the use of separate verbs (‘refuse’, ‘terminate’, ‘withdraw’) reveals the intention of the EU legislature to cover both national measures allowing a right to be terminated ex nunc and those consisting in withdrawing a right ex tunc. (36) Thus, that provision allows for the adoption of measures concerning a right which is being sought, a right which is currently being exercised or a right which has been exercised in the past. (37)

54. Secondly, according to the wording of Article 35 of Directive 2004/38, Member States have the possibility, but are not, in principle, under an obligation, to adopt the necessary measures. (38) The starting point is, therefore, that Member States are under a discretion as to whether and, as the case may be, which measures they adopt. Yet this is not an unfettered discretion. When faced with a situation giving rise to the potential adoption of measures, namely when Member States are faced with a situation of abuse of rights or fraud, their discretion is not, as a general rule, unfettered. Rather, in such a situation, Member States must have regard to the objective of Article 35 of Directive 2004/38. This can lead to situations in which their discretion is substantially reduced, even to zero. (39)

55. Thirdly, Member States are under a duty to take measures which are proportionate. Given that the principle of proportionality, constitutionally enshrined in Article 5(4) TEU, is a transversal principle that applies to all actions of the European Union and of the Member States when they act within the scope of EU law, the reference to that fundamental principle is a clear reminder to Member States to respect it when taking decisions based on Article 35 of Directive 2004/38.

56. Fourthly, Article 35 of Directive 2004/38 forms part of Chapter VII of the directive, headed ‘Final provisions’. This is only logical, as it clarifies that a right which should never have existed ceases to exist.

57. Fifthly, the legislative history of that article reveals the following: since one of the stated aims of Directive 2004/38 is to incorporate related case-law of the Court, (40) it does not come as a surprise that, in its initial proposal, the Commission gave as a basis for the existence of Chapter VI of the (draft) directive ‘incorporating established Court of Justice case-law’ on the matter. (41) Article 35 of Directive 2004/38, by contrast, was introduced at the behest of the Council. (42) Indeed, in the Commission’s proposal, (43) there is no provision that refers to fraud or the abuse of rights. There was – and still is – little case-law on the subject matter covered by that provision. (44)

3. The proportionality test set out in Article 35 of Directive 2004/38

58. This brings us to the question which lies at the heart of the present case: what are the legal consequences of the reference to proportionality in Article 35 of Directive 2004/38? What does this entail for the present case?

59. At this juncture, I deem it helpful to recall that it has been established at national level, and nor was it contested by ST, that fraud had been committed in the context of the application procedure for a permanent residence card. There is no indication that the finding of fraud did not follow a regular procedure with respect to the rights of all those involved, in particular ST. The only remaining legal question is thus whether the Minister, having concluded that ST had obtained the right of residence fraudulently, was nevertheless required, before adopting the decision to revoke the right of permanent residence, to assess the impact of that revocation on ST, on the basis of a range of personal factors such as the duration of his residence in Ireland.

(a) Arguments of the parties

60. ST claims that Article 35 cannot be reduced to a purely abstract anti-fraud rule, because the directive uses the language of proportionality and also requires judicial review of legality, facts and circumstances under Article 31 thereof. In his submission, a lawful decision to revoke permanent residence must therefore explain not only that fraud occurred, but also why revocation is proportionate in the light of the person’s actual situation, including the duration of residence, family ties, integration, health, and other relevant circumstances. He further makes the argument that the existence of alternative sanctions under national law shows that revocation is not the only possible response and that a genuine proportionality analysis is needed to choose the least restrictive effective measure.

61. Ireland, by contrast, contends that Article 35 of Directive 2004/38 is meant to protect the integrity of free-movement rights by allowing Member States to take effective action against fraud and abuse. In its view, if a person obtained permanent residence by submitting materially false documents, the decisive point is that the legal conditions for the right were never truly satisfied, so revocation is simply the consequence of that fraud rather than a new punitive measure requiring a fresh balancing exercise. Ireland also gives importance to the fact that Article 35 must be read together with the procedural safeguards in Articles 30 and 31, which guarantee notice, reasons and judicial review; those safeguards, it states, are enough to ensure fairness without importing the more demanding expulsion criteria from Article 28 of that directive.

62. The Commission’s observations are broadly consistent with that distinction. It treats Article 35 as a specific anti-abuse provision, separate from the scheme governing expulsion on grounds of public policy, public security or public health in Articles 27 and 28. On that reading, the proportionality requirement in Article 35 does not call for the host Member State to ask whether revocation is harsh in the light of the individual’s integration, family life or length of residence; rather, it asks whether the response is appropriate to the proven fraud and whether the procedural safeguards have been respected.

63. The intervening Member States mostly endorse that approach. The Czech, German, Greek and Polish Governments all emphasise that fraud goes to the very basis of the right and prevents the applicant from relying on the status of having permanent residency as if it had been validly acquired. Their common point is that a person who never truly satisfied the conditions for permanent residence should not obtain the benefit of the more protective rules designed for lawfully residing Union citizens and their family members. The Polish Government adds that the detailed balancing factors in Article 28 of Directive 2004/38 belong to expulsion cases involving lawful residence, not to cases where the status itself was obtained by deception. The Czech Government emphasises that once fraud is established, withdrawal of the right of permanent residence is itself proportionate because it is the logical and appropriate way to undo a status that should never have been granted.

(b) Analysis

64. As previously stated, pursuant to the second sentence of Article 35 of the directive, any measure adopted under Article 35 is to be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31 thereof. Based on the assessment above, I can simply reiterate that the reference to proportionality is and can only be declaratory in the sense that proportionality applies in any event, regardless of whether it is explicitly referred to in Article 35 of the directive or not.

65. As to the scope of the principle of proportionality within Article 35 of Directive 2004/38, the following remarks are of relevance.

66. The Court has held in its judgment in McCarthy and Others that, in the light of the fact that Directive 2004/38 confers rights on an individual basis, the redress procedures are designed to enable the person concerned to put forward circumstances and considerations relating to his or her individual position, so as to be able to obtain from the competent national authorities and/or courts recognition of the individual right to which he or she may lay claim. As a consequence, measures adopted by the national authorities, on the basis of Article 35 of Directive 2004/38, in order to refuse, terminate or withdraw a right conferred by that directive, must be based on an individual examination of the particular case. (45)

67. That implies that an individualised assessment concerns the actual fulfilment of the conditions set out in Article 35 in any specific case. In the present case, it was found that the applicant had submitted forged documents, and the withdrawal of his residence permit was based on that fact. Consequently, an individual assessment was carried out, and the corresponding requirement of an individualised assessment pursuant to the judgment in McCarthy and Others (46) has accordingly been fulfilled.

68. In addition, Article 35 of Directive 2004/38 refers to Articles 30 and 31 of the same directive, and to those articles only. That is to ensure that the procedural rights of the persons affected by a Member State’s decision are respected. Construing that as a disguised reference also to Articles 27 and 28 of the directive would amount to denying Article 35 thereof any autonomous meaning, let alone any effet utile. Although it is true that Article 31(3) of Directive 2004/38 in turn refers to the ‘requirements laid down in Article 28’, it refers solely to situations falling within Chapter VI.

69. At the risk of sounding repetitive, the situations addressed by Chapter VI (restrictions on an existing right) and Article 35 of the directive (combating fraud and refusing/terminating/withdrawing a right altogether) are very different. Article 27 et seq. contain safeguards for persons with lawful residence who are, in principle, beneficiaries of free movement. By contrast, persons falling within Article 35 of the directive do not enjoy lawful residence due to the fraud committed. As there is no lawful residence, there cannot be, by extension, free movement to another Member State. Ergo, the guarantees contained in Article 27 et seq. of the directive by definition and pure logic cannot apply. Therefore, as stated correctly by the German Government, the reference to the procedural safeguards in Articles 30 and 31 of Directive 2004/38 serves only to clarify that such measures taken by the Member States must also be notified to the person concerned in writing, must state the reasons on which they are based, and are subject to judicial review. However, that reference cannot lead to the entire assessment scheme of Chapter VI having to be taken into account for measures under Article 35 of Directive 2004/38.

70. Moreover, I see that the reasoning I propose has been confirmed by the Court’s judgment in Chenchooliah, where it held that Article 15(1) of Directive 2004/38 refers only to the application by analogy of the provisions of Articles 30 and 31 of the directive, with other provisions of Chapter VI of the directive, including Articles 27 and 28, not being applicable where a decision is adopted under Article 15 of the directive. (47) Attempting to draw a legal difference between wording that is only marginally different (‘by analogy’ in Article 15 of Directive 2004/38 and ‘subject to’ in Article 35 of the directive) would appear to me to be too sophistic an exercise. I do not see any difference in the terms ‘by analogy’ and ‘subject to’ in that regard.

71. Accordingly – and here I can subscribe fully to the point made by the German Government during the hearing – the requirement of proportionality in Article 35 of Directive 2004/38 must be interpreted as meaning that it is necessary to ascertain whether, in a particular case, there are specific circumstances which would render a certain measure disproportionate, even where fraud has taken place. Account must be taken of the fact that a person who has acted in an abusive manner can have no legitimate expectation of protection – even if a certain legal position does in fact exist – where it appears to have been created by the submission of fraudulent documents. Otherwise, the objective of the provision, which is to enable Member States to combat fraud, would effectively be undermined.

72. I should now like to develop why I believe that the Court’s judgment in Rottmann (48) has no bearing on the case at hand.

73. It should be recalled that that case concerned an Austrian man who lost his Austrian nationality after becoming naturalised in Germany, and the Federal Republic of Germany then sought to withdraw that naturalisation because it had been obtained by deception, which would have left him stateless and therefore without Union citizenship. It was in that particular set of circumstances that the Court held that, having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation, it is necessary to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his or her family with regard to the loss of the rights enjoyed by every citizen of the Union. In that respect, it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision, and to whether it is possible for that person to recover his or her original nationality. (49)

74. That case thus concerned the protection of a Union citizen against the loss of his Union citizenship. Mr Rottmann had lawfully acquired his original Austrian nationality, and thus Union citizenship, whereas in the present case, ST had acquired a (purely declaratory) residence permit which was to be withdrawn on the grounds that he had submitted forged documents. Thus, in the former case, the Court recognised the need for an assessment of proportionality – a matter of particular importance in primary law – in relation to Union citizenship. In the present case, however, the applicant is a third-country national invoking a right derived from secondary legislation. In such a situation, the value of such a right – determined by secondary legislation as a mere residence permit – cannot be compared to the status enshrined in primary law as Union citizenship. That is why it is not possible to apply the same reasoning to the present case.

75. Finally, it should be borne in mind that a contrary interpretation would amount to a certain incoherence. A person who was granted a right of residence by fraud could invoke the personal consequences of revocation to preserve the very advantage acquired through deception. That would undermine the integrity of the system of free movement and would weaken the effectiveness of Article 35 of Directive 2004/38. The point is not that the consequences for the person concerned are irrelevant in all respects, rather that they are not the decisive factor under Article 35 of that directive. The decisive factor is whether the right was obtained by fraud and whether the measure adopted is a necessary and proportionate response to that abuse or fraud. A possible future deportation decision would raise different legal questions and would attract its own procedural and substantive safeguards. However, the present case concerns only revocation of the right of permanent residence obtained by fraud.

76. In the present case, the question of proportionality arises when the seriousness of the fraud is measured with respect to the severity of the decision taken. There must be a proportion between the two, but that remains an intrinsic part of the individualised assessment of the fraud: to establish whether fraud actually occurred and, if so, the seriousness of the fraud, and to ensure that the penalty imposed is proportionate to the seriousness of the fraud. Once that has been complied with, the principle of proportionality, as required by Article 35 of Directive 2004/38, will have been satisfied.

VI. Conclusion

77. In the light of all the foregoing considerations, I propose that the Court answer the question referred by the Supreme Court (Ireland) as follows:

(1) 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

must be interpreted as requiring a Member State, seeking to adopt a measure to refuse, terminate or withdraw a right conferred by that directive for reason of fraud, to ensure that such a measure is proportionate to the nature and gravity of the fraud.

(2) The question whether account must be taken of the potential impact of any such decision on the circumstances of the person concerned falls outside the scope of Article 35 of Directive 2004/38.

1 Original language: English.

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).

3 ‘General rule for Union citizens and their family members’.

4 See judgment of 29 November 1956, Fédération charbonnière de Belgique v High Authority (8/55, EU:C:1956:11, p. 299).

5 See judgment of 17 December 1970, Internationale Handelsgesellschaft (11/70, EU:C:1970:114, pp. 1128 and 1129).

6 See judgment of 17 November 2011, Gaydarov (C‑430/10, EU:C:2011:749, paragraph 40 and the case-law cited).

7 See Tridimas, T., ‘The principle of proportionality’, in Schütze, R. and Tridimas, T., Oxford principles of European Union law. Volume I: The European Union legal order, Oxford University Press, Oxford, 2018, pp. 243-264, at p. 243).

8 See judgment of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 38 and the case-law cited). See, also, judgment of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 70). For a detailed analysis of the concept of abuse in EU law, see Opinion of Advocate General Poiares Maduro in Halifax and Others (C‑255/02, EU:C:2005:200, point 62 et seq.).

9 See Hartley, T. and Tridimas, T., The Foundations of European Union Law, 9th ed., Oxford University Press, Oxford, 2026, p. 205.

10 See judgment of 3 December 1974, van Binsbergen (33/74, EU:C:1974:131, paragraph 12).

11 See, by way of example, judgment of 21 June 1988, Lair (39/86, EU:C:1988:322, paragraph 43), as regards free movement of workers, and judgment of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 24 and the case-law cited), with respect to the freedom of establishment. See, also, Ziegler, K.S., ‘“Abuse of Law” in the context of the free movement of workers’, in de la Feria, R. and Vogenauer, S. (eds), Prohibition of abuse of law: a new general principle of EU law?, Hart Publishing, Oxford and Oregon, 2011, pp. 295-314.

12 See judgment of 18 December 2014, Schoenimport ‘Italmoda’ Mariano Previti and Others (C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 43 and the case-law cited).

13 See, for recent confirmation, judgment of 4 June 2026, Minister for Justice (C‑560/24, EU:C:2026:446, paragraph 49 and the case-law cited). See, also, judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 54 and the case-law cited).

14 See Commission Notice: Guidance on the right of free movement of EU citizens and their families (OJ C, C/2023/1392) (‘the Commission Notice’).

15 See Section 16.3 of the Commission Notice. Explicit reference is made therein in addition to the Court’s judgments of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraph 52 et seq.), and of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 25).

16 See also, to that effect, Bouveresse, A., ‘La fraude dans l’abus de droit’, in Berlin, D., Martucci, F. and Picod, F., La fraude et le droit de l’Union européenne, Bruylant, Brussels, 2017, pp. 17-36, at p. 18.

17 See Section 16.2 of the Commission Notice.

18 Or terminating or withdrawing.

19 See recitals 3 and 4 of Directive 2004/38. See also judgment of 19 June 2014, Saint Prix (C‑507/12, EU:C:2014:2007, paragraph 32), and Opinion of Advocate General Bot in Alarape and Tijani (C‑529/11, EU:C:2013:9, point 3).

20 See my Opinion in Chenchooliah (C‑94/18, EU:C:2019:433, point 70). See also Opinion of Advocate General Norkus in Minister for Justice (C‑560/24, EU:C:2026:11, footnote 29).

21 That is to say, (temporary) residence (for up to three months and for more than three months) in Chapter III, permanent residence in Chapter IV and provisions common to the right of (temporary) residence and permanent residence in Chapter V.

22 See Article 20 et seq. TFEU. For the Court, Union citizenship ‘is destined to be’ (see judgment of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31), ‘is intended to be’ (see judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 30) or ‘constitutes’ (see judgment of 29 April 2025, Commission v Malta (Citizenship by investment), C‑181/23, EU:C:2025:283, paragraph 92) ‘the fundamental status of nationals of the Member States’ (see all three judgments indicated in this footnote at the respective paragraphs indicated).

23 See, in particular, Article 45 TFEU.

24 See Article 26(2) TFEU.

25 See Article 3(2) TEU.

26 Moreover, such exceptions must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union. See, by way of example, judgments of 10 July 2008, Jipa (C‑33/07, EU:C:2008:396, paragraph 23 and the case-law cited), and of 17 November 2011, Aladzhov (C‑434/10, EU:C:2011:750, paragraph 34).

27 See Article 27(1) of Directive 2004/38. The same goes for restrictions on the free movement of workers under Article 45(3) TFEU.

28 See Article 27(2) of Directive 2004/38.

29 Ibid.

30 See Article 28(1) of Directive 2004/38.

31 See also, to that effect, Martucci, F., ‘Article 27. Principes généraux’, in Iliopoulou-Penot, A. (ed.), Directive 2004/38 relative au droit de séjour des citoyens de l’Union européenne et des membres de leur famille. Commentaire article par article, Bruylant, Brussels, 2020, p. 421.

32 See Hebert, E., ‘La fraude et le droit au séjour des étrangers en France : rôles et enjeux du droit de l’Union européenne’, in Quaderns IEE : Revista de l’Institut d’Estudis Europeus, Vol. 4(3), 2025, pp. 93-126, at p. 123.

33 In that connection, ‘marriages of convenience’ are explicitly mentioned by way of example.

34 See judgment of 4 June 2026, Minister for Justice (C‑560/24, EU:C:2026:446, paragraph 49).

35 It is for this reason that – merely as regards semantics – I cannot fully subscribe to the Court’s statement that the right of residence of a third-country national ‘may be restricted only in compliance with, inter alia, Articles 27 and 35 of [Directive 2004/38]’ (see judgment of 10 September 2019, Chenchooliah, C‑94/18, EU:C:2019:693, paragraph 65; emphasis added). The Court uses almost identical wording in judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 95).

36 See judgment of 4 June 2026, Minister for Justice (C‑560/24, EU:C:2026:446, paragraph 42). See also Opinion of Advocate General Norkus in Minister for Justice (C‑560/24, EU:C:2026:11, point 42).

37 See judgment of 4 June 2026, Minister for Justice (C‑560/24, EU:C:2026:446, paragraph 42).

38 As is evidenced by the use of the term ‘may’.

39 Meaning that there can only be one measure which can be taken.

40 Indeed, the Explanatory Memorandum to the initial Commission proposal refers to the Court’s case-law no less than 31 times; see 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 (COM(2001) 257 final), Explanatory Memorandum (OJ 2001 C 270E, p. 150).

41 Ibid., Chapter VI.

42 See Common Position (EC) No 6/2004 adopted by the Council on 5 December 2003 with a view to adopting Directive 2004/…/EC of the European Parliament and of the Council of … 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 C 54E, pp. 12-32, in particular p. 32: ‘this new Article has been introduced, in order to clarify that Member States may refuse, terminate or withdraw any right conferred by the Directive in the case of abuse of rights or fraud’).

43 See footnote 41 above.

44 A bit of a stretch, perhaps, but one could point to the Court’s judgment of 7 July 1992, Singh (C‑370/90, EU:C:1992:296, paragraph 24). See Guild, E., Peers, St., Tomkin, J., The EU Citizenship Directive: A Commentary, 3^rd ed., Oxford University Press, 2026, Art. 35, p. 317.

45 See judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraphs 51 and 52). In that case, a Colombian national living in Spain with her British-Irish husband was denied entry to the United Kingdom unless she first obtained an ‘EEA family permit’, despite holding a valid Spanish residence card issued under Directive 2004/38. The Court held that neither Article 35 of the directive, nor Protocol (No 20) on the application of certain aspects of Article 26 [TFEU] to the United Kingdom and to Ireland (OJ 2012 C 326, p. 293), allowed the United Kingdom to impose that extra entry permit as a general anti-abuse measure; holders of a valid Article 10 residence card must be allowed entry without a visa-equivalent requirement unless there is an individual finding of abuse or fraud.

46 Judgment of 18 December 2014 (C‑202/13, EU:C:2014:2450).

47 See judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 86). In that case, a Mauritian national who had lived in Ireland as the spouse of a Portuguese citizen challenged an Irish attempt to deport her after her husband had returned to Portugal, and the issue was whether EU free-movement rules still governed her removal or whether Irish domestic law alone applied. The Court held that Article 15 of Directive 2004/38 applied, so the expulsion had to comply with the procedural safeguards in Articles 30 and 31 of that directive, but Articles 27 and 28 thereof did not apply and no prohibition on entry could be imposed.

48 Judgment of 2 March 2010 (C‑135/08, EU:C:2010:104).

49 See judgment of 2 March 2010, Rottmann (C‑135/08, EU:C:2010:104, paragraph 56).

Opinion of Advocate General Szpunar delivered on 17 September 2026.###

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