R.S. v Minister for Justice (C-560/24)

Contents

Judgment of the Court (Second Chamber)4 June 2026^note(Reference for a preliminary ruling — Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 3(1) — Beneficiaries — Family members of a Union citizen — Derived right of residence of a third-country national — Subsequent naturalisation of that national — Article 35 — Fraud or abuse of rights — Marriage of convenience — Temporal scope — Power of investigation of the competent national authorities into the existence of a marriage of convenience)In Case C‑560/24 [Besthame],^noteREQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decision of 2 July 2024, received at the Court on 19 August 2024, in the proceedingsR.S.vMinister for Justice,THE COURT (Second Chamber),composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi, Judges,Advocate General: R. Norkus,Registrar: C. Strömholm, Administrator,having regard to the written procedure and further to the hearing on 15 October 2025,after considering the observations submitted on behalf of:– R.S., by C. Power, Senior Counsel, D. Leonard, Barrister-at-Law, and J. Watters, Solicitor,– the Minister for Justice and Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, A. Joyce and G. Wells, acting as Agents, and by D. Conlan Smyth, Senior Counsel, and S. Cooney, Barrister-at-Law,– the German Government, by J. Möller, R. Kanitz and N. Scheffel, acting as Agents,– the European Commission, by E. Montaguti and J. Tomkin, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 15 January 2026,makes the following

Judgment

1This request for a preliminary ruling concerns the interpretation of 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 (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

2The request has been made in proceedings between R.S., a third-country national, who has been naturalised as an Irish citizen, and the Minister for Justice (Ireland), concerning the finding by the Minister for Justice that, before acquiring Irish nationality, R.S. had entered into a marriage of convenience with a Union citizen for the purposes of obtaining a residence card of a family member of a Union citizen.

Legal framework

European Union law

3Recital 28 of Directive 2004/38 states:‘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.’

4Article 2 of that directive, entitled ‘Definitions’, provides:‘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 …’

5Article 3 of that directive, entitled ‘Beneficiaries’, provides in paragraph 1:‘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.’

6Article 15 of that directive determines the procedural safeguards applicable where decisions are adopted restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

7Article 27 of Directive 2004/38 lays down the general principles applicable where the right of entry and the right of residence of Union citizens and their family members are restricted on grounds of public policy, public security or public health.

8Article 30 of that directive, entitled ‘Notification of decisions’, provides:1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.…3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.’

9Article 31 of that directive, entitled ‘Procedural safeguards’, provides: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.…’

10Article 35 of that directive, entitled ‘Abuse of rights’, states:‘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 shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.’

Irish law

11Directive 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 applicable to the dispute in the main proceedings (‘the 2015 Regulations’).

12Regulation 27 of the 2015 Regulations, entitled ‘Cessation of entitlements’, provides:(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 any right, entitlement or status 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 …’

13Regulation 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.’

The dispute in the main proceedings and the question referred for a preliminary ruling

14R.S., who was born in a third country of which he was a national, entered Ireland as the holder of a student residence permit.

15In 2010, 16 days before the expiry of that permit, R.S. married a Union citizen who had exercised her freedom to move to and reside in Ireland. He was subsequently issued a five-year residence card as a family member of a Union citizen.

16In 2015, R.S. acquired Irish citizenship. Since then, his residence in Ireland has been based on that nationality.

17In 2018, R.S. and his wife divorced.

18In 2019, a third-country national applied for residence in Ireland on the ground that she was the mother of a child, an Irish national, 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.

19By decision of 13 February 2020, the Minister for Justice ‘revoked’ the residence card issued to R.S. 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 was a marriage of convenience. Following an application for review submitted by R.S., that decision was upheld by a decision of the Minister for Justice of 8 September 2020.

20On 1 February 2022, the Minister for Justice, however, adopted a new decision further to correspondence with R.S.’s solicitors. By that decision, the Minister rescinded the decision of 8 September 2020, set aside the decision of 13 February 2020 and found that R.S. had produced false or misleading documents or information and contracted a marriage of convenience in order 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] [d]irective from [that] marriage … [is] deemed withdrawn from the outset’.

21R.S. brought an application before the High Court (Ireland) for annulment (certiorari) of the decisions of 13 February 2020, 8 September 2020 and 1 February 2022 on the ground that the Minister for Justice had acted ultra vires. Since he became an Irish national, R.S. is no longer covered by any provision of the 2015 Regulations or of Directive 2004/38, with the result that those acts could not form the basis of the power of the Minister for Justice to adopt those decisions. That action was dismissed by the High Court by a judgment of 18 May 2023.

22R.S. then referred the matter to the Court of Appeal (Ireland), which is the referring court.

23That court states, from the outset, 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, finding or conclusion may be taken into consideration in the context of a future re-assessment of R.S.’s Irish nationality status, while acknowledging that any such re-assessment would take into account all of R.S.’s circumstances and fundamental rights. In that regard, the referring court explains that, as a result of recent decisions of the Supreme Court (Ireland), there is currently no constitutionally valid procedure for conducting an investigation with a view to revoking Irish citizenship in such a context.

24In 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.

25In that regard, that court inferred from the judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862), 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 being said, it is apparent from the judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693), that that directive applies 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 is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

26In the light of those factors, that court asks whether, by analogy with the solution adopted in the latter judgment, Directive 2004/38 governs a situation in which the competent authority of a Member State seeks to determine whether a person, who has enjoyed a right of residence based on that directive, obtained that right by abuse of rights or by fraud, on a date when that person is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

27In the second place, the referring court notes that Irish law unequivocally empowers the Minister for Justice to investigate fraud or abuse of rights in order to ‘revoke, refuse to make or refuse to grant … a residence card’, but that revocation or refusal cannot be retroactive. It also states that, under Irish law, such a power of investigation may cover both residence card applications and valid residence cards or those obtained in the past. However, according to that court, it is not clear that that power of investigation can be exercised autonomously, outside any specific action such as the revocation or refusal of a right of residence, a prosecution for a criminal offence, an expulsion procedure or a procedure for revocation of Irish nationality.

28For the referring court, such an autonomous power of investigation may be justified in the light of the purpose of the rules on Union citizenship, which require that there be a robust system for the prevention, detection and eradication of fraud and abuse of rights. In order to be able, if appropriate, to interpret Irish law in a manner consistent with EU law, that court considers it necessary therefore to determine whether Directive 2004/38 applies to a third-country national who has obtained the nationality 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.

29In those circumstances, the Court of Appeal 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 derived residence in a Member State by virtue of being a spouse of an EU national exercising [rights under the FEU Treaty] 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 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?’

The question referred for a preliminary ruling

30By its single question, the referring court asks, in essence, whether Article 35 of Directive 2004/38 must be interpreted as allowing the competent authorities of a Member State to investigate and, if appropriate, make a determination or reach a conclusion that a person, who was previously a beneficiary of a derived right to move and reside under that directive, committed a fraud or an abuse of rights, even if that person acquired the nationality of that Member State and if, on the date of the investigation, his residence in that Member State is no longer based on that directive.

Preliminary observations

31As a preliminary point, it should be recalled that, in accordance with Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than the one 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 (judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 34 and the case-law cited, and of 10 September 2019, Chenchooliah, C‑94/18, EU:C:2019:693, paragraph 54).

32On the other hand, since, under a principle of international law, a Member State cannot refuse its own nationals the right to enter its territory and remain there and since those nationals thus enjoy an unconditional right of residence there, Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he or she is a national (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraphs 29 and 34; of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 42; and of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 37).

33In the present case, it is apparent from the explanations provided by the referring court that, during the period from 2010 to 2015, R.S., then a third-country national, resided in Ireland as the spouse of a Union citizen who had exercised her right to move and reside freely within the territory of the Member States. During that period, R.S.’s residence in Ireland was therefore based on Directive 2004/38, of which he was a beneficiary.

34However, as the referring court observes, R.S.’s acquisition of Irish nationality in 2015 entailed, for him, a change in the legal arrangements both under national law and under Directive 2004/38. Since that acquisition, R.S. has resided in Ireland on the basis of national law and no longer meets the definition of the concept of ‘beneficiary’ within the meaning of Article 3(1) of that directive, which is therefore no longer intended to govern his residence in Ireland (see, to that effect, judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraphs 39 to 41).

35Thus, on the date on which the investigation into the existence of a marriage of convenience was opened in 2019, R.S. was no longer a ‘beneficiary’ within the meaning of that provision. However, that investigation covered, inter alia, a period in which R.S. had actually been residing in Ireland on the basis of Directive 2004/38. In addition, that investigation led to the finding that any right conferred under that directive, including therefore the right of residence enjoyed by R.S. on the basis of that directive, was deemed to have been withdrawn ab initio.

36It is in the light of those preliminary observations that Article 35 of Directive 2004/38 should be interpreted in order to determine, first, whether that provision continues to apply in circumstances such as those described in the preceding paragraph and, second, whether it allows the Member States to carry out an investigation with a view to establishing merely the existence of a marriage of convenience.

Interpretation of Article 35 of Directive 2004/38

37In accordance with Article 35 of Directive 2004/38, 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, it being understood that any such measure must be proportionate and subject to the procedural safeguards provided for in the directive.

38In interpreting a provision, 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 (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).

39In the first instance, with regard to the temporal scope of Article 35 of Directive 2004/38, it should be observed, first, that that provision is worded broadly, as is shown by the terms indicating that Member States may adopt the ‘necessary measures’ to ‘refuse, terminate or withdraw’ ‘any’ right ‘conferred’ by that directive. Admittedly it is clear from that wording that the adoption of such measures must relate to a right conferred by that directive, such as a right of residence derived from a family member of a Union citizen who has exercised his or her freedom of movement and residence. However, that wording does not in any way presuppose that, at the time of the adoption of those measures, that right is still being exercised.

40First of all, by its wording, Article 35 of Directive 2004/38 does not make the adoption by the Member States of the necessary measures to refuse, terminate or withdraw any right conferred by that directive contingent on any express time limit.

41Next, the use of the past participle ‘conferred’ suggests that the EU legislature intended to grant Member States the power to adopt measures in respect of rights of which the person concerned is or was the beneficiary under that directive.

42Finally, as the Advocate General observed in point 42 of his Opinion, the use of separate verbs (‘refuse’, ‘terminate’, ‘withdraw’, in the English-language version; ‘denegar’, ‘extinguir’, ‘retirar’, in the Spanish-language version; ‘verweigern’, ‘aufheben’, ‘widerrufen’, in the German-language version; ‘lõpetama’, ‘kehtetuks tunnistama’, ‘keelduma’, in the Estonian-language version; ‘refuser’, ‘annuler’ and ‘retirer’ in the French-language version) 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. 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.

43It follows from those elements of literal interpretation that Article 35 of Directive 2004/38 is intended to apply to measures taken under a right conferred by that directive during a period in the past, even if the person concerned is no longer, at the time those measures were adopted, a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

44Second, that literal interpretation is consistent with the context of Article 35 of Directive 2004/38.

45According to recital 28 of that directive, ‘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’. That recital is worded in terms that are as broad as those used in Article 35 of that directive. Like that article, that recital does not make the adoption by the Member States of the measures referred to contingent on any time limit.

46In addition, the Court has already held 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. That directive also lays down a set of rules intended to govern the situation arising from the loss of entitlement to one of those rights which continue to apply to a person who is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive (see, to that effect, judgment of 10 September 2019, Chenchooliah, C‑94/18, EU:C:2019:693, paragraphs 70 to 73, 78 and 79).

47It follows that the temporal scope of certain provisions of Directive 2004/38 goes beyond that of the concept of a ‘beneficiary’ within the meaning of Article 3(1) of that directive. Specifically, a person who has had the status of a ‘beneficiary’ within the meaning of that provision may therefore, even after having lost that status, continue to fall within the scope of certain provisions of that directive, which, in view of their subject matter and purpose, are intended to continue to apply after such a loss.

48Third, having regard to its purpose and its effectiveness, Article 35 of Directive 2004/38 is intended to continue to apply after such a loss.

49In that respect, it should be pointed out that that provision is an expression of the general principle that the abuse of rights is prohibited. In accordance with the case-law of the Court, proof of an 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, 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 (judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 54).

50Since abusive conduct consists in the artificial creation of the conditions required for obtaining an advantage and their formal observance, such conduct is, by its very nature, difficult to detect. In practice, due to its concealed nature, it is often detected not at the time it is committed, but at a later stage.

51In those circumstances, it must be held that the objective of combating fraud and abusive practices requires that Article 35 of Directive 2004/38 be interpreted as conferring on Member States the power to take the necessary measures in the event of fraud or abuse of rights which affected a right conferred under that directive, even on a date when that right ceased to have effect and the person concerned no longer has the status of a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

52A contrary interpretation would likely benefit those who have committed fraud or an abuse of rights and who have succeeded in concealing that fraud or abuse for a sufficiently long period, at the risk of undermining that objective.

53In the light of the foregoing considerations, it must be concluded that it follows from a literal, contextual and teleological interpretation of Article 35 of Directive 2004/38 that that provision is intended to apply to measures taken in respect of a right conferred by that directive during a period in the past, even if the person concerned is no longer, on the date those measures were adopted, a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

54No other conclusion can be drawn from paragraphs 64 and 67 of the judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693). In those paragraphs, the Court held that the case-law – according to which, where a third-country national who is a family member of a Union citizen derives from Directive 2004/38 rights of entry and residence in the host Member State, that Member State may restrict those rights only in compliance with Articles 27 and 35 of that directive – does not apply in a situation where that third-country national no longer enjoys a right of residence derived from that directive and is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

55In so doing, the Court did not intend to limit the temporal scope of Article 35 of Directive 2004/38 to the period during which the person concerned resides in the territory of a Member State by virtue of the provisions of that directive and has the status of a ‘beneficiary’ within the meaning of Article 3(1) of that directive.

56It is apparent from an overall reading of the grounds of the judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693), that the Court merely drew a distinction between, on the one hand, those situations in which the rights conferred by Directive 2004/38 are limited on grounds of public policy, public security or public health under Article 27 of that directive and the loss of such a right on account of the existence of fraud or an abuse of rights under Article 35 of that directive and, on the other, the situation referred to in Article 15 of that directive, which was at issue in the case that gave rise to that judgment, in which the right of residence is lost for other reasons, such as the departure of the Union citizen whom the third-country national had accompanied or joined as a family member.

57In the second instance, it is necessary to determine, in the light of the issues raised by the referring court, the scope of the power which Article 35 of Directive 2004/38 confers on the Member States. In particular, that court seeks to ascertain whether that provision confers on those States a power to investigate situations of fraud or abuse of rights which may lead simply to a finding of fraud or abuse without necessarily entailing the refusal, termination or withdrawal of a right conferred by that directive.

58In that regard, first of all, it follows from the broad wording of Article 35 of Directive 2004/38, noted in paragraph 39 above, that the EU legislature has conferred on the Member States a certain discretion in the exercise of the power to adopt the necessary measures to refuse, terminate or withdraw any right conferred by that directive. However, as is apparent from the wording of that provision, the exercise of that power is circumscribed by the principle of proportionality and the procedural safeguards provided for in Articles 30 and 31 of that directive.

59In that context, Article 35 of Directive 2004/38 does not define the ‘necessary measures’ which the Member States may take in order to refuse, terminate or withdraw any right conferred by that directive.

60Next, a finding of fraud or abuse of rights, which is a necessary step prior to the possible adoption of a decision to refuse, terminate or withdraw a right conferred by Directive 2004/38, logically presupposes verification of the existence of such fraud or such abuse, as the Advocate General also observed in point 82 of his Opinion.

61According to the case-law of the Court, that verification requires an individual examination of the specific case (see, to that effect, judgment of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 52).

62Lastly, it must be pointed out that such an individual examination, conducted under Article 35 of Directive 2004/38, may lead to a finding that fraud or abuse of rights has not been established.

63Accordingly, it must be held that Article 35 of Directive 2004/38 confers, implicitly but necessarily, on the Member States the power to investigate suspected fraud or abuse of rights and to find, where appropriate, the existence of fraud or abuse, without necessarily adopting, thereafter, measures to refuse, terminate or withdraw a right conferred under that directive.

64Third and lastly, in so far as it is apparent from the documents before the Court that a finding of the existence of a marriage of convenience in the dispute in the main proceedings could lead to the subsequent revocation of R.S.’s naturalisation and, therefore, to the loss of his status as a Union citizen, it must be recalled that Article 20 TFEU does not preclude a Member State from withdrawing from a citizen of the Union the nationality of that Member State acquired by naturalisation when that nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of proportionality (judgment of 2 March 2010, Rottmann, C‑135/08, EU:C:2010:104, paragraph 59).

65In the light of all the foregoing considerations, the answer to the question referred is that Article 35 of Directive 2004/38 must be interpreted as allowing the competent authorities of a Member State to investigate and, if appropriate, make a determination or reach a conclusion that a person, who was previously a beneficiary of a derived right to move and reside under that directive, committed a fraud or an abuse of rights, even if that person acquired the nationality of that Member State and if, on the date of the investigation, his residence in that Member State is no longer based on that directive.

Costs

66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Second Chamber) hereby rules: 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 allowing the competent authorities of a Member State to investigate and, if appropriate, make a determination or reach a conclusion that a person, who was previously a beneficiary of a derived right to move and reside under Directive 2004/38, committed a fraud or an abuse of rights, even if that person acquired the nationality of that Member State and if, on the date of the investigation, his residence in that Member State is no longer based on that directive.

Delivered in open court in Luxembourg on 4 June 2026.