The European Union’s highest court has ruled that all member states must recognise same-sex marriages lawfully concluded elsewhere in the bloc, clarifying obligations for countries that do not allow such unions.
In a decision delivered in Luxembourg on 25 November, the Court of Justice of the European Union (CJEU) found that Polish authorities acted unlawfully when they refused to record the marriage of two Polish men who wed in Berlin in 2018 and later returned to Poland. The couple, identified only by their initials, had asked a local registry office to transcribe their German marriage certificate into the Polish civil register, a step needed for administrative procedures. Officials rejected the request on the basis that Polish law defines marriage as a union between a woman and a man.
The referring Polish court asked the CJEU whether EU law required recognition of the marriage. The Luxembourg judges answered that question in the affirmative, stating that member states must recognise such marriages when EU citizens exercise their right to move and reside freely within the bloc. Refusing to do so, the court said, infringes both freedom of movement and the right to respect for private and family life.
EU citizens, the judgment stated, must be able to enjoy “a normal family life” when they move to another member state and when they return home. If they form a family in a host country, including by marrying, they must have legal certainty that this family life can continue on their return. That obligation, the court added, applies regardless of whether domestic law provides for marriage between persons of the same sex.
The ruling is binding on Poland and on all EU countries whose laws still do not allow same-sex marriage. It requires them to recognise such unions for the purposes of EU free-movement rules and related rights. However, the judges stressed that the decision does not oblige member states to open marriage to same-sex couples in their own legal systems. Instead, it compels authorities to treat marriages contracted in other member states without discrimination when registering civil status or granting rights linked to marital status.
Pawel Knut, the lawyer representing the Polish couple, called the outcome “historic” and said it marked a new phase in litigation over the treatment of same-sex couples in Poland. The case will now return to Poland’s Supreme Administrative Court, which is expected to apply the CJEU’s guidance when deciding whether the marriage must be transcribed into the national register.
The judgment forms part of a broader line of EU case law on the status of same-sex spouses. In 2018 the CJEU held, in the Coman case, that member states must treat the same-sex spouse of an EU citizen as a family member for residence purposes, even if national law does not recognise such marriage. The new ruling extends that approach to general recognition of marriages concluded elsewhere in the bloc.
Despite these rulings, Poland has not introduced marriage equality or civil partnerships. Prime Minister Donald Tusk’s government has been working on a bill to create a form of registered partnership, open to both same-sex and opposite-sex couples, with limited property and inheritance rights. Progress has been slowed by opposition from a conservative coalition partner and by the stance of President Karol Nawrocki, who has said he would veto any legislation he believes would undermine the “constitutionally protected status of marriage”.
The CJEU decision increases pressure on Warsaw to adjust its legislation and administrative practice. While it stops short of requiring Poland to change its constitutional definition of marriage, it means that authorities will need to recognise same-sex marriages concluded abroad for purposes such as issuing documents, taxation, social security, inheritance and access to benefits linked to marital status. Failure to comply could expose Poland to infringement proceedings and potential financial penalties from the European Commission.
Beyond Poland, the ruling provides guidance to other member states that do not allow same-sex marriage but receive citizens returning from countries where such marriages are legal. Governments in those states will now be expected to ensure that registries recognise foreign same-sex marriages on the same basis as opposite-sex ones. The court linked this to the ban on discrimination on grounds of sexual orientation and to EU free-movement rights.
