European court forces member states to recognise equal marriages celebrated in the EU

In 2018, two Polish citizens legally married in Germany applied to the Polish authorities for a transcript of their marriage to be recognised in their country. The competent authorities refused the application on the ground that Polish law does not authorise same-sex marriages. The couple appealed against the decision and the Supreme Administrative Court referred the case to the Court of Justice of the EU to determine whether that refusal infringes European law.

The Court of Justice recalls that, although the rules relating to marriage fall within the competence of the Member States, they must comply with EU law when exercising that competence. The spouses concerned, as citizens of the Union, have the freedom to move and reside within the territory of the Member States and the right to lead a family life
Member States and the right to lead a normal family life both when they exercise that freedom and when they return to their Member State of origin. In particular, when they create a family life in a host Member State, in particular through marriage, they must be certain that they will be able to continue it on their return to their Member State of origin.

A refusal to recognise a marriage lawfully contracted by two citizens of the Union of the same sex in another Member State, in which they have exercised their freedom of movement and residence, is liable to cause serious administrative, professional and private disadvantages, forcing the spouses to live as unmarried persons in the Member State of origin. The Court therefore considers that such a refusal is contrary to EU law. It infringes not only freedom of movement and residence, but also the fundamental right to respect for private and family life.

According to the Court, the obligation of recognition does not infringe the national identity or threaten the public policy of the spouses’ Member State of origin, since it does not imply that that State must provide for marriage between two persons of the same sex in its national law.

Moreover, the Member States have a margin of discretion in choosing the means of recognising such marriages, and the transcription of a foreign marriage certificate is only one possible means among others.

However, the Court emphasises that those means must not make such recognition impossible or excessively difficult or discriminate against same-sex couples on grounds of their sexual orientation, which is the case where national law does not provide, for such couples, a means of recognition equivalent to that provided for opposite-sex couples.

Therefore, since transcription is the only means provided for by Polish law for a marriage contracted in another Member State to be effectively recognised by the administrative authorities, Poland is obliged to apply it without distinction to marriages contracted by persons of the same sex and to those contracted by persons of the opposite sex.

For further information: Court of Justice of the European Union