Opinion of Advocate General Szpunar delivered on 20 May 2014

1. The Treaty on the Functioning of the European Union

4. Article 20(1) TFEU establishes EU citizenship and provides that ‘[e]very person holding the nationality of a Member State’ is an EU citizen. In accordance with Article 20(2)(a), EU citizens have ‘the right to move and reside freely within the territory of the Member States’.

5. Article 21(1) TFEU adds that that right is ’subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.

2. Protocol No 20

6. Article 1 of Protocol No 20 provides:

‘The United Kingdom shall be entitled, notwithstanding Articles 26 and 77 of the Treaty on the Functioning of the European Union, any other provision of that Treaty or of the Treaty on European Union, any measure adopted under those Treaties, or any international agreement concluded by the Union or by the Union and its Member States with one or more third States, to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose:

1. of verifying the right to enter the United Kingdom of citizens of Member States and of their dependants exercising rights conferred by Union law, as well as citizens of other States on whom such rights have been conferred by an agreement by which the United Kingdom is bound; and

2. of determining whether or not to grant other persons permission to enter the United Kingdom.

Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them shall prejudice the right of the United Kingdom to adopt or exercise any such controls. References to the United Kingdom in this Article shall include territories for whose external relations the United Kingdom is responsible.’

3. Directive 2004/38

7. It is apparent from recital 5 in the preamble to that directive that ‘[t]he right of all European Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, also be granted to their family members, irrespective of nationality’.

8. In accordance with recital 28 to Directive 2004/38, ‘[t]o 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’.

9. As regards the scope ratione personae of Directive 2004/38, Article 3(1), entitled ‘Beneficiaries’, provides:

‘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.’

10. As regards the right of entry of Union nationals and family members who are third-country nationals, Article 5(1) and (2) of Directive 2004/38 provides:

‘1.

Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

2.

Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.’

11. As regards the right of residence of, and the issue of residence cards to, family members of a Union national who are third-country nationals, Article 10 of that directive provides:

‘1.

The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2.

For the residence card to be issued, Member States shall require presentation of the following documents:

1. a valid passport;

2. a document attesting to the existence of a family relationship or of a registered partnership;

3. the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

4. in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

5. in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

6. in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.’

12. In accordance with Article 11 of Directive 2004/38, the residence card issued on the basis of Article 10 is, in principle, to be valid for five years. Articles 12 to 15 lay down rules on the retention and the loss of the right of residence of family members of the EU citizen.

13. As regards the adoption of measures to prevent any abuse of the rights conferred by Directive 2004/38, Article 35 provides:

‘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.’

4. Regulation (EC) No 539/2001

14. Recital 4 in the preamble to Regulation (EC) No 539/2001⁽⁵⁾ states that, ‘[p]ursuant to Article 1 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, Ireland and the United Kingdom are not participating in the adoption of this Regulation. Consequently and without prejudice to Article 4 of the aforementioned Protocol, the provisions of this Regulation apply neither to Ireland nor to the United Kingdom.’

5. Regulation (EC) No 562/2006

15. Regulation (EC) No 562/2006⁽⁶⁾ provides for there to be no border control of persons crossing the internal borders between the Member States of the European Union and establishes rules governing border control of persons crossing the external borders of the Member States of the European Union. According to recital 27 in the preamble thereto, that regulation ‘constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis… The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application’.

1. Preliminary observations and particular features of the case

39. When it introduced citizenship of the Union in 1992,⁽¹⁸⁾ the Treaty of Maastricht marked the end of a long evolution.⁽¹⁹⁾ A long road was travelled between the ‘citizen’s Europe’,⁽²⁰⁾ discussed in the 1970s and 1980s, and the present citizenship of the Union, the guiding principle being, in particular, the rights of freedom of movement and freedom of residence in the territory of the Member States. Today citizenship of the Union represents the status of all citizens, whether economically active⁽²¹⁾ or not.⁽²²⁾ Its introduction into the Treaties therefore conferred legitimacy on the process of European integration by reinforcing the participation of citizens.

40. Since then, citizens of the Union who move within the territory of the Member States not only integrate the movements central to their daily life, but also see therein a central element of the way in which they perceive themselves as citizens of the Union. All the rights and obligations that are granted to and imposed on Union citizens, and the members of their family too, facilitate, in particular, their movement, their residence, their access to studies, their search for employment or their work. Their citizenship is therefore an essential element of their European identity.⁽²³⁾

41. In the situation at issue in the main proceedings, Ms McCarthy, a third-country national, sought a right of entry to the Member State of which her spouse and her daughter are nationals, namely: the United Kingdom, in order to accompany them there, in particular on short trips.

42. Furthermore, the claimants in the main proceedings are established in a Member State other than that of which Mr McCarthy is a national, namely: in Spain, and the Spanish authorities have issued a residence card to Ms McCarthy on the basis of Article 10 of Directive 2004/38.

43. The trips at issue are therefore short trips to the Member State of which Mr McCarthy and his daughter, Union citizens who have made use of their right of freedom of movement, are nationals.

44. It should be noted at this point that it was stated at the hearing, as is apparent from points 19 to 21 of this Opinion, that Mr McCarthy’s and his daughter’s dual British and Irish nationality is the result of particular historical circumstances.

45. However, as Union law now stands, the question whether a person does or does not have the nationality of a particular Member State depends solely on the content of the national law of the Member State concerned.⁽²⁴⁾ In that regard, the Court has asserted that ‘it is for each Member State, having due regard to international law, to lay down the conditions for the acquisition and loss of nationality’.⁽²⁵⁾

46. Consequently, by virtue of the 1983 declaration,⁽²⁶⁾ and for the purposes of EU law, Mr McCarthy and his daughter are British nationals.⁽²⁷⁾

2. Analysis of the derived right of residence in the recent case-law of the Court

47. In order to determine whether a derived right of residence may be based on Directive 2004/38, it is appropriate to begin with Article 3 of that directive. In that regard, the Court, in its case-law, has given the provisions of that directive a literal, systematic and teleological interpretation, which it confirmed in its very recent judgment in O. and B.⁽²⁸⁾

48. In its reasoning, the Court emphasised, first, that while Article 21 TFEU provides that every citizen of the Union is to have the right to move and reside freely within the territory of the Member States, that right is not absolute, but is to be exercised, according to that article, ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.⁽²⁹⁾ The Court observed, secondly, with respect to Directive 2004/38, that that directive aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and that it aims in particular to strengthen that right.⁽³⁰⁾

49. Thus, the Court indicated that neither Article 21(1) TFEU nor the provisions of Directive 2004/38 confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals by the Treaty provisions on Union citizenship are not rights specific to those nationals but rights derived from the exercise of freedom of movement by a Union citizen.⁽³¹⁾

50. In that regard, the Court stated that it follows from a literal, systematic and teleological interpretation of Directive 2004/38 that that directive does not establish a derived right of residence for third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national.⁽³²⁾ More specifically, the scope ratione personae of Directive 2004/38 is determined by Article 3(1), which provides that the directive is to apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and … their family members as defined in Article 2(2) who accompany or join them.⁽³³⁾

51. Consequently, on the Court’s interpretation, only a beneficiary within the meaning of Article 3 of Directive 2004/38 may derive rights of freedom of movement and of residence under that directive. Such a beneficiary may be a Union citizen or a family member, as defined in Article 2(2).⁽³⁴⁾

52. When applied to the present case, that means that the situation of Ms McCarthy, as the spouse of a Union citizen, comes within the concept of ‘family member’ referred to in Article 2(2)(a) of Directive 2004/38.⁽³⁵⁾ However, as the Polish Government has noted in its written submissions, Mr McCarthy and his daughter ‘move to’ the Member State of which they are nationals and not, as provided for in Article 3 of Directive 2004/38, to a Member State other than that of which they are nationals. In other words, it appears, in principle, that the conditions for the application of Article 3(1) of Directive 2004/38 cannot be satisfied where the Union citizen moves to the Member State of which he is a national.

53. According to the Court’s consistent case-law, the reasonableness, at least, of such an interpretation is confirmed by the fact that other provisions of Directive 2004/38, in particular Articles 6, 7(1) and (2) and 16(1) and (2), refer to the right of residence⁽³⁶⁾ of a Union citizen and to the derived right of residence of his family members, either in ‘another Member State’ or in ‘the host Member State’. Consequently, it follows from that case-law that a third-country national, a family member of a Union citizen, cannot, in principle, rely, on the basis of that directive, on a derived right of residence in the Member State of which that citizen is a national.⁽³⁷⁾

54. Thus, as regards the purpose of the derived rights of entry and residence for which Directive 2004/38 provides in the case of family members of Union citizens, the Court observes that that directive is intended to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States.⁽³⁸⁾ However, the Court makes clear that the subject of the directive concerns, as is apparent from Article 1(a), the conditions governing the exercise of that right.⁽³⁹⁾ In that regard, still according to the Court’s case-law, given that, by virtue of a principle of international law,⁽⁴⁰⁾ a State may not refuse its own nationals the right to enter its territory and to remain there, Directive 2004/38 governs only the conditions of entry and residence of a Union citizen in Member States other than that of which he is a national.⁽⁴¹⁾

55. Are we therefore to conclude that Directive 2004/38 does not apply in situations such as that in the main proceedings?

56. I am not convinced that that is the case. I think, on the contrary, that the scope of Directive 2004/38 must be given a broader interpretation, in such a way that it is not deprived of its practical effect.

57. Thus, in order to be able to determine whether, in the situation described at points 41 to 43 of this Opinion, Ms McCarthy may be relieved of the obligation to obtain an entry visa as a member of the family of a Union citizen, it seems necessary to ask the following question: would Directive 2004/38, interpreted in the light of Article 21 TFEU, enable such a right to be based on the prior or simultaneous exercise of Mr McCarthy’s freedom of movement?

58. In order to answer that question, it must first of all be observed that, on the basis of the Treaties, the Court has recognised two types of right of residence for family members in the State of which the Union citizen is a national.⁽⁴²⁾ The first relates to the right of family reunification granted to the citizen following the prior or simultaneous exercise of freedom of movement, and based on the prohibition of obstacles.⁽⁴³⁾ The second flows from the practical effect of Article 20 TFEU and aims to prevent citizens being deprived of the enjoyment of the substance of rights conferred on them by citizenship of the Union.⁽⁴⁴⁾

59. In the context of this Opinion, only the first type of right of residence referred to above needs to be analysed. In my view, that first type concerns two kinds of situation, which will be analysed below. The first concerns the situation of a citizen who ‘has exercised’ his right of freedom of movement and travels to the Member State of which he is a national (prior exercise) and the second the situation of a citizen who ‘exercises’ his right of freedom of movement when he travels to that Member State (simultaneous exercise).

3. Applicability of Directive 2004/38 in a case in which the Union citizen, who has made genuine and prior use of his freedom of movement, travels to the Member State of which he is a national

60. It is appropriate to adopt a broad interpretation of Directive 2004/38 that will enable it to be applied to Union citizens and to third-country national family members who travel to the Member State of which those citizens are nationals. To my mind such an interpretation is justified not only in the light of the role played by citizenship as Union law currently stands, as is apparent from the observations set out at points 39 and 40 of this Opinion, but also in the light of the relevant case-law of the Court.

4. Applicability of Directive 2004/38 when the Union citizen, who makes effective use of his freedom of movement by remaining in the host State, simultaneously exercises it by travelling to the Member State of which he is a national: the case of the right of entry and of short-term residence

89. I have suggested that the Court should extend the scope of Directive 2004/38 to the derived right of residence conferred on a Union citizen who, after having first exercised his freedom of movement, travels to the Member State of which he is a national accompanied by the third-country national family members. In case the Court should not follow that reasoning, I shall also analyse below the applicability of that directive when the Union citizen simultaneously exercises his freedom of movement by travelling to the Member State of which he is a national, from the sole perspective of the right of entry and of short-term residence.

90. In that regard, it should be observed at the outset that the right of entry is guaranteed for all citizens in Article 21 TFEU. Article 5(1) of Directive 2004/38 sets out the conditions for the application of that right, the sole basis for which is possession of Union citizenship. The right of entry is thus closely linked to the right of residence for up to three months provided for in Article 6 of that directive.

1. The concept of abuse of rights in the relevant case-law of the Court

108. I would observe at the outset that the concept of abuse of rights is one that is known in most Member States. For example, the standard definition of abuse of rights, according to French legal theory, reads as follows: ‘improper use of a legal prerogative; action whereby the holder of a right, a power or a function, in exercising that right, power or function, oversteps the bounds of the rules governing its lawful use’.⁽⁸⁷⁾ Thus, it should be observed that the function of that concept assumes that the person committing the abuse is the holder of a right.⁽⁸⁸⁾

109. The definition in German legal theory is as follows: ‘exercise of a personal right which formally satisfies the requirements of a law but which, in the light of the particular circumstances, is contrary to good faith’.⁽⁸⁹⁾

110. In Polish law, any act or omission by the holder of a right which, although formally corresponding to the use of that right, is exercised in a way that is contrary to the rules of social co-existence or to its socio-economic purpose, cannot be regarded as the exercise of the right in question and is not protected by the law.⁽⁹⁰⁾

111. As regards EU law, since that concept appears only sporadically in secondary legislation,⁽⁹¹⁾ it is necessary, in order to examine it, to refer to the case-law of the Court, which sees it, first, as a principle of national law, in a situation where a legal person relies on EU law ‘with the sole aim of avoiding the application of national law’,⁽⁹²⁾ and, secondly, as a principle of EU law, in a situation where a legal person ‘makes fraudulent or improper use of a right conferred on him by EU law’.⁽⁹³⁾

112. It follows from the Court’s case-law that the concept of abuse of rights is an autonomous concept of EU law, according to which ‘[a] finding 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. It requires, secondly, a subjective element consisting in the intention to obtain an advantage from the [EU] rules by creating artificially the conditions laid down for obtaining it’.⁽⁹⁴⁾

113. For the purposes of the directive, the Commission considers that abuse of rights is ‘an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under Community law which, albeit formally observing of the conditions laid down by Community rules, does not comply with the purpose of those rules’.⁽⁹⁵⁾

114. The Court has also made clear that it is for the national court to establish the existence of those two objective and subjective elements, evidence of which must be adduced in accordance with the rules of national law, provided that the effectiveness of [EU] law is not thereby undermined.⁽⁹⁶⁾ It has also observed that the application of domestic rules on abuse of rights must not prejudice the full effect and uniform application of the EU provisions in the Member States and, in particular, it is not open to national courts, when assessing the exercise of a right arising from an EU provision, to alter the scope of that provision or to compromise the objectives pursued by it.⁽⁹⁷⁾

115. In that regard, it seems to me that there can be little doubt that the United Kingdom has not adduced evidence of an abuse of rights, for no element, either objective or subjective, can be identified in the present case. However, it appears to me to be more appropriate to examine in greater detail the position which I have just put forward when analysing Article 35 of Directive 2004/38 in the light of the case-law of the Court and by reference to the arguments put forward by the United Kingdom.

2. The interpretation of Article 35 of Directive 2004/38 in the light of the case-law of the Court

116. Article 35 of Directive 2004/38 allows Member States, in the case of abuse of rights or fraud, such as marriages of convenience, to adopt the necessary measures to refuse, terminate or withdraw any right conferred by that directive.

117. In that regard, the question arises of the type of measures that Member States are entitled to adopt in order to protect against abuse of rights on the basis of that article: can they adopt only individual measures or also measures that are of general application and precautionary?

118. In order to answer that question, it is necessary to read Article 35 in the light of the case-law of the Court referred to at points 112 and 114 above, according to which, in order to determine whether there is an abuse of rights within the meaning of that article, it is necessary to undertake a two-stage examination in order to ascertain whether those objective and subjective elements are present.⁽⁹⁸⁾

119. Before embarking on such an examination, it is appropriate to ascertain the purpose of Article 5(2) of Directive 2004/38.

120. In that regard, it is apparent on reading recital 5 in the preamble to that directive that ‘[t]he right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, also be granted to their family members, irrespective of nationality …’.

121. As regards, first, the combination of objective circumstances from which it is apparent that, in spite of formal compliance with the conditions laid down in Directive 2004/38, the objective of Article 5(2) is not achieved, the United Kingdom authorities have, quite simply, failed to fulfil their obligation to examine them. I observe that the Court has consistently held that the examination of the conduct impugned in the context of an abuse of rights must be carried out in concreto.⁽⁹⁹⁾ Thus, as is apparent from most of the written observations submitted to the Court, Article 35 of Directive 2004/38 requires that an abuse of rights be established in a specific case before the holder of a residence card, within the meaning of Article 10 of that directive, may be denied the right conferred by Article 5 to enter without a visa.

122. I therefore have no hesitation in asserting that, in this case, the objective element of the abuse of rights alleged by the Secretary of State is wanting, for the purpose of Article 5(2) of Directive 2004/38 has in my view been achieved. The exercise by the claimants in the main proceedings of their right of freedom of movement resulted de facto in their becoming established in a Member State, namely Spain, with the intention of living there together and while wishing to travel to the United Kingdom for short periods of residence. In other words, their compliance with that provision is not merely formal. The trips made by the claimants in the main proceedings are not artificial but genuine. Those trips correspond to a lawful use of their right of freedom of movement, since they did not seek to avoid the United Kingdom regulations or to make fraudulent and improper use of the rights conferred by that directive, which the United Kingdom does not dispute.

123. As regards, secondly, the subjective element, consisting in the intention to obtain an advantage resulting from Directive 2004/38, it too is clearly wanting; the United Kingdom authorities did not rely on the individual conduct of the claimants in the main proceedings in order to suspend the application of Article 5(2) of Directive 2004/38.

124. On the contrary, whether in their written submissions or at the hearing, the United Kingdom authorities have not disputed either the genuineness of Mr and Ms McCarthy’s marriage or the fact that they have a genuine family life in Spain. In that regard, a marriage may be characterised as a marriage of convenience for the purposes of Directive 2004/38 only where it is contracted ‘for the sole purpose of enjoying the right of free movement and residence under that directive that someone would not have otherwise’.⁽¹⁰⁰⁾

125. I would point out, next, that the measures referred to in Article 35 of Directive 2004/38 are subject to Articles 30 and 31 of that directive. Thus, as is apparent from most of the observations submitted to the Court, a measure of general application would deprive the procedural guarantees provided for in those articles of their substance. Consequently, the measures referred to in Article 35 are individual measures that do not warrant the systematic suspension of the rights conferred by that directive. On the contrary, the systematic suspension of those rights does not allow either the national court or this Court to ascertain whether the conditions that led the United Kingdom authorities to disregard that right in the present case have in fact been met.

126. According to the guidelines, the system of Directive 2004/38 properly rests on individual decisions and the national authorities must pay due attention to all the circumstances of the individual case. More specifically, they must assess the conduct of persons concerned in the light of the objectives pursued by Community law and act on the basis of objective evidence.⁽¹⁰¹⁾

127. As the Commission correctly states in its guidelines, when interpreting the notion of abuse in the context of Directive 2004/38, due attention must be given to the status of the EU citizen. In accordance with the principle of the supremacy of EU law, the assessment of whether EU law has been abused must be made in the framework of EU law, and not with regard to national migration laws. The directive does not prevent Member States from investigating individual cases where there is a well-founded suspicion of abuse. However, EU law prohibits systematic checks. Furthermore, measures taken by Member States to fight against marriages of convenience must not be such as to deter EU citizens and their family members from making use of their right to free movement or unduly encroach on their legitimate rights. They must not undermine the effectiveness of EU law or discriminate on grounds of nationality.⁽¹⁰²⁾

128. Last, it seems to me that there can be little doubt that, in assessing Ms McCarthy’s right of entry, which derives from Article 5(2) of Directive 2004/38, the United Kingdom altered the scope of that provision and undermined the objectives it pursues. In that regard, the United Kingdom claims that an abuse of rights may be resolved by simply disregarding the provision forming the subject-matter of a possible abuse of rights, which, to my mind, is contrary to the very concept of abuse of rights and compromises the objectives pursued by Directive 2004/38.

3. The objections put forward by the United Kingdom

129. Unlike the other parties and interveners who submitted observations, the United Kingdom claimed, in its written submissions and also at the hearing, that it was currently faced with a significant number of instances of abuse of the right of entry of third-country national family members, in order to circumvent the immigration and border controls. It characterised that situation as a ‘systemic abuse of rights’.

130. In the United Kingdom’s submission, if it accepted that all residence cards allegedly issued pursuant to Article 10 of the directive exempt third-country nationals from any visa control, those cards would make it easier to enter its territory. In that regard, the United Kingdom Government claims that it has adduced evidence of the existence of systemic abuse of rights.

131. Although the use of the adjective ‘systemic’ does not seem to me to be compatible with the concept of abuse of rights in the context of EU law, it is none the less appropriate to consider whether the evidence adduced by the United Kingdom satisfies the conditions required by that concept.

132. The documents submitted by the United Kingdom as evidence relate, in particular, to a study carried out in 2011 by the border control service of that Member State, which is stated to have identified 1494 ‘attempts’ to use false documents obtained fraudulently by sham marriages or forged documents.⁽¹⁰³⁾ In particular, the United Kingdom was faced with the use of forged documents or documents obtained fraudulently by means of marriages of convenience or forged documents.⁽¹⁰⁴⁾ An analysis by a United Kingdom authority of the residence cards issued by the other Member States showed that those issued by 12 Member States did not satisfy the minimum security standards set by the International Civil Aviation Authority for EU travel documents. In addition, fraud and abuse of rights have been recognised as a serious problem by the Member States.⁽¹⁰⁵⁾ The lack of uniform minimum standards for the residence cards referred to in Article 10 and the resulting risk of abuse in order to circumvent immigration controls are of particular concern for the United Kingdom.

133. It is clear that the evidence adduced by the United Kingdom cannot be regarded as specific evidence linked with the individual conduct of the claimants in the main proceedings. That evidence does not satisfy the objective and subjective conditions required for the purpose of establishing the existence of an abuse of rights in a specific case, as described at points 121 to 127 of this Opinion. In that regard, I would point out that it has not been disputed that the conduct of the claimants in the main proceedings does not constitute an abuse of rights within the meaning of EU law.

134. It should also be borne in mind that a general presumption of fraud is not sufficient to justify a measure that compromises the objectives of the FEU Treaty.⁽¹⁰⁶⁾ The assessment of abusive conduct is in principle a matter for the national courts, but their assessment must not in any circumstances jeopardise the uniformity and effectiveness of EU law.⁽¹⁰⁷⁾

135. Furthermore, as regards failure to comply with the minimum security standards set by the International Civil Aviation Authority, to which the United Kingdom refers, the representative of the Kingdom of Spain emphasised at the hearing that the residence cards issued by the Spanish authorities to members of the family of Union citizens satisfied the standards of that organisation.

136. In any event, as regards any non-compliance by the security standards implemented by the Kingdom of Spain on its territory, I would emphasise that any failure on the part of a Member State to comply with Directive 2004/38 does not constitute an abuse of rights and is therefore not covered by Article 35 of that directive.⁽¹⁰⁸⁾

137. As regards the family permit, I consider that it amounts quite simply to a requirement to have a visa, which is contrary not only to Article 5(2) of Directive 2004/38 but also to the objectives and the system of that directive. Admittedly, the residence card issued pursuant to Article 10 of that directive is of a declaratory nature and does not create a right, for it merely certifies that a right already exists. However, it may be asserted that, provided that the third-country national member of the family of the Union citizen satisfies the conditions that allow him to benefit from the right of freedom of movement, that card must be accepted by the Member States.⁽¹⁰⁹⁾

138. Last, I believe that authorising a Member State not to take account of the residence card issued by another Member State would be contrary to the principle of mutual recognition. It should be observed that, according to the case-law of the Court, exercise of the rights arising from freedom of movement is not possible without production of documents relative to personal status, which are generally issued by the worker’s State of origin. It follows that the administrative and judicial authorities of a Member State must accept certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question.⁽¹¹⁰⁾

139. In that regard, to accept that the United Kingdom should implement measures of general application would be tantamount to allowing a Member State to circumvent the right of freedom of movement and would have the consequence that other Member States could also adopt such measures and unilaterally suspend the application of the directive.

140. I am therefore of the view that the evidence adduced by the United Kingdom is not sufficient to support its assertion of a systemic abuse of rights.

141. For all of those reasons, I believe that the answer to the first and third questions should be that Article 35 of Directive 2004/38 does not entitle a Member State to adopt a measure of general application consisting in withdrawing from members of the family of a Union citizen in possession of a valid residence card issued by another Member State the right to be exempt from the obligation to obtain a visa, when that measure is precautionary and is not based on a prior finding of an abuse of rights in a specific case.