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

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 significance of the abuse of rights exception. The analysis of national case law, however, demonstrates 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.