Groundbreaking CJEU ruling: Failure to transcribe a foreign same-sex marriage certificate is incompatible with EU law

In the judgment published today, the Court of Justice of the European Union responded to a preliminary question submitted by the Supreme Administrative Court in Warsaw. The Court has no doubt that Poland must transcribe foreign marriage certificates of same-sex couples. Despite the lack of marriage equality, Poland is obliged to introduce solutions enabling the transcription of a foreign marriage certificate into Polish civil registry records.

Polish law under the scrutiny of the Court of Justice of the EU

The judgment published today constitutes the CJEU’s response to a preliminary question submitted by the Supreme Administrative Court. While examining a case concerning the refusal to transcribe a marriage certificate of a same-sex couple, the Supreme Administrative Court questioned whether EU law (the principle of freedom of movement and the right to respect for private and family life, including Articles 20 and 21 of the Treaty on the Functioning of the EU, Article 7 of the Charter of Fundamental Rights of the EU, as well as Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States) precludes a Member State from refusing to transcribe a marriage certificate concluded by its citizen in another Member State with a person of the same sex.

[The full text of the question is available HERE.]

The case examined by the Supreme Administrative Court concerned a marriage entered into by two men in Germany. One spouse holds both Polish and German citizenship, while the other holds only Polish citizenship. After getting married, they applied for the transcription of their marriage certificate to the Head of the Civil Registry Office in Warsaw. Their request was refused, and this refusal was upheld by the Mazovian Voivode. The couple appealed the decision to the Regional Administrative Court in Warsaw, which dismissed their complaint. After appealing this judgment, the case reached the Supreme Administrative Court, which decided to submit a preliminary question to the CJEU.

The Advocate General sides with the couple

Before the Court issued its judgment, an opinion was presented by Advocate General Jean Richard de la Tour. In his opinion, he explicitly stated that Poland, as a Member State, has a positive obligation to ensure the transcription of a foreign marriage certificate.

[More on the Advocate General’s opinion HERE.]

The Court has ruled — now it’s time for the Polish government

As a consequence of today’s judgment, the case will return to the Supreme Administrative Court and will likely result in the annulment of the decision refusing the transcription of the marriage certificate. In answering the preliminary question, the CJEU interpreted EU law as opposing national regulations that—because the Member State does not allow same-sex marriages—do not permit the recognition of a marriage legally concluded by two citizens of that Member State of the same sex while exercising their freedom of movement and residence in another Member State. This means that Poland must introduce mechanisms enabling the recognition of a marriage concluded abroad.

As stated in the reasoning of today’s judgment: “the refusal by the authorities of a Member State of which two Union citizens of the same sex are nationals to recognise the marriage concluded by them lawfully, in accordance with the procedures laid down for that purpose in another Member State in which those Union citizens have exercised their freedom of movement and residence, may constitute an obstacle to the exercise of the right enshrined in Article 21 TFEU, since such a refusal is liable to cause those citizens serious inconvenience in administrative, professional and private matters […]. In particular, such a refusal prevents those Union citizens […] from continuing that family life while benefiting from that legal status, which is certain and effective vis-à-vis third parties, and forces them to live as single persons upon their return to their Member State of origin.” The Court further noted that, due to the lack of recognition of the marriage in Poland, “there is a concrete risk that those citizens will encounter serious difficulties in organising their family life upon returning to that Member State, since in many everyday activities, both in the public and private spheres, they are unable to rely on their marital status, even though that status was lawfully established in the host Member State.” Finally, the Court held that the obligation for Poland to recognise a same-sex marriage does not “undermine national identity nor threaten the public policy of the Member State of origin.”

[Read the full judgment HERE.]

However, today’s ruling of the Court of Justice of the EU is of key importance not only for the couple involved in the case, but also for the entire LGBT+ community in Poland. It clearly states that refusing to transcribe a marriage concluded abroad is incompatible with EU law. Therefore, regardless of the absence of registered partnerships and marriage equality, Poland must ensure the possibility of effective transcription. This is an important step for all those who married in another EU Member State, whose marriages will finally be recognised in Poland!

What specific steps will the Polish government take following this ruling? We will keep you updated, but we already call on the Minister of the Interior to issue guidelines for Heads of Civil Registry Offices regarding the practical implementation of this judgment.

The preliminary question in this case was submitted to the CJEU by the Supreme Administrative Court thanks to the work and perseverance of, among others, attorney Anna Mazurczak, recipient of the 2024 Equality Crown.