National Courts in the Frontline: Abuse of Rights under the Citizens' Rights Directive

Author:Tamás Szabados
Position:Senior Lecturer of the Eötvös Loránd University (ELTE), Budapest
Pages:84-102
Tamás Szabados, ‘National Courts in the Frontline: Abuse of Rights
under the Citizens’ Rights Directive’ (2017) 33(85) Utrecht Journal of
International and European Law pp. 84–102, DOI: https://doi.org/
10.5334/ujiel.417
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
RESEARCH ARTICLE
National Courts in the Frontline: Abuse of Rights
under the Citizens’ Rights Directive
Tamás Szabados*
The free movement and residence of Union citizens and their third country national family
members may be restricted under Article 35 of Directive 2004/38/EC on the grounds of abuse
of rights. Although the Court of Justice of the European Union (CJEU) had the opportunity to
address abuse of rights cases, so far there have been no cases where it has established that
abuse of rights took place. For this reason, the legal literature has tended to downplay the
signicance of the abuse of rights exception. The analysis of national case law, however, demon-
strates that the courts of the Member States do apply Article 35in its implemented form and
have established abuse of rights on several occasions. Moreover, national courts have decided
legal questions related to the abuse of rights which were not answered previously by the CJEU.
Keywords: Abuse of rights; Directive 2004/38; Court of Justice of the European Union and
national courts; limited judicial dialogue
I. Introduction
Directive 2004/38/EC, also known as the Citizens’ Rights Directive (the Directive), provides detailed rules
on the rights of free movement and residence of Union citizens and their third country national family
members in other Member States.1 Union citizens and their non-EU citizen family members may travel to
and reside in another Member State for up to three months with a valid identification card or passport.2
Workers and self-employed persons can stay in another Member State for longer than three months, as can
students and anyone else having sufficient resources, if they do not burden the host country’s social system
and if they have comprehensive health insurance cover.3 Their family members also have derivative rights of
residence. If Union citizens have lived legally in another Member State for a continuous period of five years,
they and their family members are entitled to permanent residence.4
The rights guaranteed by the Directive may be restricted only on the grounds specified in the Directive,
such as public policy, public security and public health. A further reason for restricting the free movement
and residence of Union citizens and their third country family members is abuse of rights, as laid down by
Article 35 of the Directive.
In some cases, the Court of Justice of the European Union (the CJEU) has had the opportunity to examine
abuse of rights under the Directive, but has not found abuse of rights in any case so far. The relevant deci-
sions of the CJEU have been discussed widely in the legal literature. However, the courts of the Member
States also apply Article 35 in its implemented form. This facet of the application of Article 35 is often
ignored and has received very little attention so far. Therefore, this article attempts to bring this case law to
the fore exhibiting its creative force. Sometimes, the relevance of the prohibition of abuse of rights has been
* Senior Lecturer of the Eötvös Loránd University (ELTE), Budapest.
1 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 [2004] OJ L158/77.
2 Directive, arts 4–6.
3 Directive, art 7.
4 Directive, art 16.
Tamás Szabados 85
called into question in the area of the free movement of persons. While the CJEU indeed seems reluctant to
limit individuals’ rights based on abuse of rights in its case law concerning the free movement and residence
of Union citizens and their third country family members, national courts have found cases involving such
abuses of rights based on the facts.
The CJEU provides only very loose guidance in its case law on the concept and application of abuse of
rights under the Directive. National courts are therefore often left to fill in the blanks. The aim of this paper
is to demonstrate that a) national courts have had to ascertain several times the applicability of the prohibi-
tion of abuse of rights provided by the Directive against Union citizens and their third country national fam-
ily members, and b) certain questions not settled by the CJEU were answered by the courts of the Member
States without a preliminary ruling from the CJEU being requested. These questions concern the conduct
covered by Article 35, the application of the proportionality principle in this field and burden of proof as
well as evidence. It will be argued that the substantive application of Article 35 seems to have shifted to a
certain extent from the CJEU to the national courts. The judicial dialogue between the CJEU and national
courts is accordingly limited.
First, Article 35 of the Directive on abuse of rights and fraud and its antecedents will be put under scrutiny
(Section II). The relevant judgments of the CJEU will then be analysed (Section III). However, the argument
on abuse of rights appears not only in the proceedings before the CJEU, but also before national courts. It is
therefore vital to examine where and how the courts of the Member States apply Article 35 of the Directive
(Section IV). It will also be discussed how the national case law on abuse of rights influences the judicial
dialogue between the national courts and the CJEU in the framework of the preliminary ruling procedure
(Section V). The article ends with some concluding remarks.
II. Article 35 of the Directive
The prohibition of abuse of rights pervades EU law. Article 35 of the Directive is a specific manifestation
of this prohibition. Therefore, I briefly discuss first the role of the prohibition of abuse of rights in EU law,
before examining Article 35 in more detail.
Antecedents to the Directive
The prohibition of abuse of rights may be traced back to the van Binsbergen judgment of the CJEU in 1974.5
The CJEU later developed considerable case law regarding abuse of rights in various fields, including most
notably the free movement of companies6 and tax law.7 In addition, there are several secondary legal sources
in diverse areas of EU law that refer to the prohibition of abuse.8
In its remarkable Halifax judgment, the CJEU recognised the prohibition of abusive practices as a princi-
ple and, in Kofoed, the prohibition of abuse of rights was deemed to constitute a ‘general Community law
principle’.9 The exact nature of the prohibition of abuse of rights is still debated. Disagreement exists on
whether the prohibition is merely a principle of interpretation or a fully-fledged general principle of EU
5 Case 33/74 Johannes Henricus Maria van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299,
paras 12–13.
6 Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1459; Case C-167/01 Kamer van Koophandel en Fabrieken
voor Amsterdam v Inspire Art Ltd. [2003] ECR I-10155.
7 See in particular Case C-255/02 Halifax plc, Leeds Permanent Development Services Ltd and County Wide Property Investments Ltd v
Commissioners of Customs & Excise [2006] ECR I-1609; Case C-196/04 Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd
v Commissioners of Inland Revenue [2006] ECR I-7995; Case C-321/05 Hans Markus Kofoed v Skatteministeriet [2007] ECR I-5795;
Case C-425/06 Ministero dell’Economia e delle Finanze v Part Service Srl. [2008] ECR I-897.
8 See in particular Regulation 596/2014/EU of the European Parliament and of the Council of 16 April 2014 on market abuse (mar-
ket abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Direc-
tives 2003/124/EC, 2003/125/EC and 2004/72/EC [2014] OJ L173/1; Directive 2014/36/EU of the European Parliament and of
the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as
seasonal workers [2014] OJ L94/375; Regulation 2015/848/EU of the European Parliament and of the Council of 20 May 2015
on insolvency proceedings [2015] OJ L141/19; Directive 2014/66/EU of the European Parliament and of the Council of 15 May
2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer [2014] OJ
L157/1; Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work
[2008] OJ L327/9.
9 Halifax (n 7) para 70; Kofoed (n 7) para 38.

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