The European Union’s top court ruled on Tuesday that Poland is legally obliged to recognize a same-sex marriage concluded in another EU member state, declaring that Warsaw’s refusal to acknowledge the marriage of two Polish men married in Berlin is incompatible with EU law.
The two citizens, who married in Germany in 2018 and wished to return to Poland “as a married couple,” sought transcription of their German marriage certificate — the only procedure Polish law provides for recognizing foreign marriages. Their request was rejected because “Polish law does not allow marriage between persons of the same sex.”
The couple appealed, prompting Poland’s Supreme Administrative Court to refer questions to the European Court of Justice of the European Union (CJEU). In a detailed judgment, the Luxembourg-based court reaffirmed that while marriage laws fall within national competence, EU free movement law imposes binding limits on how member states apply those rules. The court noted that as EU citizens, the spouses “enjoy the freedom to move and reside within the territory of the member states and the right to lead a normal family life when exercising that freedom and upon returning to their member state of origin.”
The law effectively opens up the possibility of same-sex couples, in member states where same-sex marriage is not recognised, eloping and their country of origin being forced to acknowledge the marriage upon their return.
In its written judgment on Tuesday, the court emphasized that when citizens create a family life in another member state, “in particular by virtue of marriage, they must have the certainty to be able to pursue that family life upon returning to their member state of origin.”
Luxembourg found that refusing to recognize a same-sex marriage that was lawfully concluded in another member state “may cause serious inconvenience at administrative, professional, and private levels, forcing the spouses to live as unmarried persons in their member state of origin.” Such a refusal, the court held, is “contrary to EU law” because it infringes both the freedom to move and reside, and the fundamental right to respect for private and family life.
The court also rejected arguments that recognition would undermine national identity or public policy. According to the judgment, “the obligation to recognize does not undermine the national identity or pose a threat to the public policy of the spouses’ member state of origin. It does not require that member state to provide for marriage between persons of the same sex in its national law.” Instead, the obligation stems strictly from the rights associated with EU citizenship and free movement.
Member states, the court said, retain “a margin of discretion to choose the procedures for recognizing such a marriage,” and transcription is only one possible mechanism. However, those procedures “must not render such recognition impossible or excessively difficult or discriminate against same-sex couples on account of their sexual orientation.”
Because Poland offers only a single legal avenue for recognizing foreign marriages — transcription, which effectively creates an official Polish civil-status record by copying the details from a foreign marriage certificate word-for-word into Poland’s own registry — the court concluded that Warsaw must “apply that procedure equally to marriages concluded between persons of the same sex and to those concluded between persons of the opposite sex.”
Poland’s courts must now resolve the couple’s case in accordance with the Luxembourg ruling, and the decision is binding on all national courts hearing similar disputes.
