The SN judgment: A residence permit for posted third-country nationals

Abstract

On 20 June 2024, the Court of Justice of the European Union delivered a judgment in a Dutch case concerning a residence permit for third-country nationals who were posted to the Netherlands for more than 90 days by an EU service provider. The judgment is of particular interest because it provides insight into the way in which the abovementioned regulations interact. The first question was whether a derived right of residence for posted third-country nationals existed on the basis of the Articles 56 and 57 TFEU, meaning: a right of residence for workers that was derived from the right of residence of the EU service provider. The CJEU ruled that such a derived right of residence was not covered by the Articles 56 and 57 TFEU. Then, the CJEU scrutinised various justification grounds for requiring a residence permit in this situation. The argument of the Dutch government that it wanted to provide legal certainty to the posted third-country nationals by giving them the opportunity to demonstrate that they were legally resident in the Netherlands was accepted by the CJEU as a justification ground. Also, the ‘public order’ ground for justification was accepted. The fact that the public order check had already been carried out by the Slovak authorities did not affect the fact that the Netherlands was allowed to carry out its own check. There were also questions about the duration of residence permits. The limited duration was accepted by the CJEU, since the freedom to provide services only applies if such services are temporary in nature. The fact that the Netherlands had linked the duration of the residence permit to the duration of the Slovak residence permit was also permitted, according to the CJEU. Finally, the fees for applying for a residence permit were still a subject of discussion. These were five times higher than the fees for applying for a residence permit for a Union citizen. The CJEU stated that this could constitute a serious indication of a conflict with Article 56 TFEU if it turned out that the tasks that the Dutch government would have to perform in order to assess and issue such a permit application would take almost as much time as if it were a Union citizen. All in all, this judgment is another fine addition to the meaning and tenability of the grounds for justification to restrict the access of third-country nationals to the labour market. In this sense, the judgment fits into a long series of case law of the CJEU on this subject. For the Netherlands, it might be good to abandon the restrictive duration of a maximum of two years, given the Dutch labour market shortages that will not be resolved for the time being.