In a landmark judgment that could reshape how EU citizens exercise their free-movement rights, the Court of Justice of the European Union (CJEU) has ruled that Poland must recognise a same-sex marriage legally performed in another member state, even though Polish law does not permit such unions.

The decision was issued in response to a case brought by two Polish men who married in Berlin in 2018 and later attempted to settle together in Poland. When they sought to register their German marriage certificate with the Polish civil registry, authorities rejected the application on the grounds that national legislation limits marriage to heterosexual couples.

Their challenge ultimately reached Poland’s Supreme Administrative Court, which asked the Luxembourg court whether EU law allows a member state to refuse recognition of a same-sex marriage contracted elsewhere in the Union.

“To be honest, I do not see anything revolutionary here, nor any change of real significance in terms of the general direction of the Court of Justice’s case law. For a very long time, it has indicated that where a same-sex marriage has been concluded in any EU country that recognises it, the legal effects of that marriage must be recognised in another member state, even if that state has no provisions regulating such relationships,” Professor Marek Safjan said during a press conference in Warsaw.

According to the judges, denying recognition to a lawfully concluded marriage between two EU citizens undermines core European guarantees, including the right to free movement and the right to lead a normal family life across borders.

The Court stressed that while marriage law itself remains a national prerogative, those national rules cannot nullify rights granted at EU level. If citizens marry abroad and later return to their home country, the judges said, they must be able to rely on continuity of their family status. Otherwise, couples may suddenly find themselves treated as legal strangers the moment they cross a border.

The Court however drew a line between recognition and legalisation. The ruling does not oblige Poland to introduce same-sex marriage domestically. Instead, it requires the authorities to recognise foreign same-sex marriages in the same procedural manner that applies to opposite-sex marriages from abroad, including the transcription of marriage certificates into the civil registry.

As experts say this may lead to using an argument of discrimination if only foreign same sex marriages shall be respected by the national regulations, and therefore be used to legalise it domestically. 

Dr Łukasz Bernaciński of the Ordo Iuris Institute commented on the CJEU decision: 

“Poland is not required to introduce same-sex “marriages” into its domestic legal system. But at the same time, an EU member state should recognise within its own legal system same-sex “marriages” legally concluded in another EU member state. The justification for this ruling is the safeguarding of the freedom of movement within the EU (sic!). This means that Polish citizens who enter into a same-sex “marriage” in another EU member state and return to Poland will be able to expect to be recognised as a married couple. In your view, what is more important: preserving the character of marriage as a union between a man and a woman, or the freedom to move within EU territory? For the CJEU, balancing these values was far from straightforward… Should Poland, as part of the proposed EU reform, demand changes to the scope of the CJEU’s jurisdiction and to the manner in which the Court is appointed?” the expert asked in an X post. 

Photo: Pixabay

Tomasz Modrzejewski