Problem
As a counsel, use relevant EU Law cases to represent Samuel and Sandra in Court.
Samuel is a Dutch national working in Dublin. Samuel is married to a national of Qatar, Sandra. They got married in 2021 in Ireland. Following their marriage, Sandra applied and obtained a residence card of a family member of a Union citizen ('residence card') issued by the Irish authorities on the basis of EU Directive 2004/38.
While they have been both residing in Ireland since 2021, they also own a vacation house in the Netherlands and travel to that country two to three times a year.
Under a new provision of Dutch law "Green Visa Act" adopted in 2020, to guard against marriages of convenience, all Dutch nationals already married to non-EU nationals or who may wish to marry non-EU nationals in the future, have to submit to an investigation of the circumstances surrounding the marriage and offer evidence to the Dutch authorities that their marriage is genuine.
Additionally, the same "Green Visa Act" introduced new rules concerning travelling to the Netherlands. Specifically, in order to be able to enter the country, non-EU holders of a 'resident card' issued by another EU country must apply for an additional entry visa, which is valid for three months. This entry visa can be renewed provided that its holder goes in person to a Dutch diplomatic mission abroad and submit a form setting out details relating to their financial and employment situation.
Taking the view that these national provisions infringed their rights of free movement under EU law, Samuel and Sandra brought an action before the relevant Dutch administrative court. That court is uncertain as to whether the new Dutch provisions highlighted above are compatible with EU law and in particular Directive 2004/38. It decided therefore to stay the proceeding and submit the following questions to the Court of Justice of the European Union under Article 267 TFEU:
i. Is Directive 2004/38 applicable to the situation of Samuel and Sandra? Should the Court find the Directive to be applicable, does it preclude the Netherlands from requiring third-country nationals to obtain an entry visa in order to be able to enter Dutch territory when they already hold a residence card obtained on the basis of Directive 2004/38 in another EU Member State?
ii. Does Directive 2004/38 preclude Member States from sanctioning 'marriages of convenience' and if so, is the Dutch provision in dispute permissible under Directive 2004/38?
Having received the reference in December 2022, the Registrar of the Court of Justice invited Samuel, Sandra and the French government to attend an oral hearing in Spring 2023.