Poland ‘must recognise German same-sex marriage’
The EU’s highest court has found that member states must recognise same-sex marriages that have lawfully taken place in another member state.
The EU Court of Justice (CJEU) was ruling on a question referred to it by Poland’s Supreme Administrative Court, which is hearing a case involving two Polish citizens, one of whom also has German nationality, who were married in the German capital Berlin in 2018.
Wishing to go to Poland and reside there as a married couple, they asked for their marriage certificate to be transcribed in the Polish civil register so that their marriage would be recognised in Poland.
The two are now challenging a refusal of that request, on the basis that Polish law does not allow marriage between persons of the same sex.
Family life
In its judgment, the CJEU noted that, while rules on marriage came within the competence of the member states, they were also required to comply with EU law in exercising that competence.
“The spouses in question, as EU citizens, enjoy the freedom to move and reside within the territory of the member states and the right to lead a normal family life when exercising that freedom and upon returning to their member state of origin.
“In particular, when they create a family life in a host member state, in particular by virtue of marriage, they must have the certainty to be able to pursue that family life upon returning to their member state of origin,” the judges stated.
The court said that the Polish refusal might cause “serious inconvenience” to the couple at administrative, professional, and private levels, forcing them to live as unmarried people in their native country.
“For that reason, the court holds that such a refusal is contrary to EU law. It infringes not only the freedom to move and reside, but also the fundamental right to respect for private and family life,” the court found.
Member states have ‘discretion’
The court stressed, however, that the obligation to recognise such marriages did not mean that a member state had to provide for marriage between persons of the same sex in its national law.
“In addition, the member states enjoy a margin of discretion to choose the procedures for recognising such a marriage, and the transcription of a foreign marriage certificate is just one of the possible procedures,” it added.
Since this was the only means under Polish law of recognising a foreign marriage, however, the court found that Poland was required to apply that procedure “without distinction”.