A EU country must recognize a marriage legally performed in another member state — even if the spouses are two men or two women. However, this does not mean that all EU countries are required to introduce marriage for all in their national law, as the European Court of Justice (ECJ) ruled on Tuesday in Luxembourg. (Case C-713/23, PDF).
In the concrete case, the Grand Court of the European Union examined the situation of a Pole and a man with German and Polish citizenship who had married in 2018 in Germany. They wanted to move to Poland and requested that their marriage certificate be re-registered in the Polish civil status registry so that their marriage would be recognized there. Polish authorities refused, because two men or two women cannot marry in Poland.
Non-recognition violates EU law on freedom of movement
The spouses took the matter to court. Poland’s Supreme Administrative Court asked the ECJ whether Poland must recognize the marriage. The ECJ has now answered in the affirmative. The spouses have the right to move freely within EU countries and to reside there and to lead a normal family life. Not recognizing their marriage would violate EU law — namely the freedom of movement and residence rights and the fundamental right to respect for private and family life.
A marital status lawfully acquired in another EU country must be recognized, the ECJ ruled. This does not mean that same-sex marriage must be introduced into national law.
The Court also acknowledged that member states have leeway in the modalities — re-registering a foreign marriage certificate is only one option. Recognition must not be made impossible or unduly difficult.
It must also not discriminate against same-sex couples, the ECJ stressed. In Polish law, re-registration is presented as the sole means of recognition, because Poland has no registered civil partnerships for same-sex couples. Therefore it must be applied to all marriages.
In the specific case of the two men, the Polish court will now decide. It is bound by the ECJ’s interpretation of the law.
Currently, 16 of the 27 EU member states have opened marriage to same-sex couples. Seven more offer registered partnerships. The Polish government under Prime Minister Donald Tusk is currently attempting to introduce a form of civil partnership, but the right-wing populist president Karol Nawrocki has signaled opposition (TheColu.mn reported). (AFP/dk)
