EU court orders Poland to recognise same-sex marriages conducted in other member states

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Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

The Court of Justice of the European Union (CJEU) has ruled that Poland must recognise the marriage of a Polish same-sex couple who married in Germany, even though Polish law does not allow such marriages.

The court found that refusing to do so infringes the freedom to move and reside within the EU as well as the right to respect for private and family life. The ruling requires Poland to change its system for recognising marriages conducted in other member states so that it does not discriminate against same-sex couples.

The case in question was brought by two men – one a Polish citizen, the other a dual Polish-German national – who married in Berlin in 2018. When they sought to have their union recognised in Poland, they were refused, first by the registry office and then by courts, which cited article 18 of Poland’s constitution.

That article states: “Marriage as a union of a man and a woman, family, motherhood and parenthood shall be placed under the protection and care of the Republic of Poland.”

By 2023, the case had reached Poland’s Supreme Administrative Court (NSA), which decided to ask the CJEU to issue a ruling. That decision was itself seen as groundbreaking, as until then Polish courts had refused to refer such cases to the EU level.

In April this year, CJEU advocate general Richard de la Tour issued an opinion finding that EU law requires member states to recognise same-sex marriages conducted in other member states.

While such opinions are not binding, the CJEU usually follows them in its subsequent rulings. And, today, the the court did indeed rule along those lines. Its judges noted that, while individual member states have the right to set their own rules relating to marriage, they are also required to comply with EU law.

“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,” wrote the CJEU.

“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,” it added.

Refusing to allow them to do so is contrary to EU law, ruled the judges, as it infringes on their right to move and reside, as well as respect for private and family life.

The court added that its ruling “does not undermine the national identity or pose a threat to the public policy of the spouses’ member state of origin”, and also “does not require that member state to provide for marriage between persons of the same sex in its national law”.

It said that it still remains up to member states what kind of procedure they want to have for recognising marriages conducted abroad. However, that procedure “must not render such recognition impossible or excessively difficult or discriminate against same-sex couples on account of their sexual orientation”.

Polish LGBT+ rights group Miłość Nie Wyklucza welcomed today’s “long-awaited ruling”, which it said “leaves no doubt: under EU law, Poland is obligated to issue marriage certificates to Polish couples married in another EU country!”

The organisation will later on Tuesday hold a press conference outside the digital affairs ministry, which is responsible for the process of recognising foreign marriages, to present proposals for how the CJEU’s ruling can be implemented.

Polish law currently does not allow any form of recognised same-sex union. However, opinion polls show that a large majority of the public support the introduction of same-sex civil partnerships.

In December 2023, the European Court of Human Rights ruled that Poland’s lack of legal recognition and protection for same-sex couples violates their human rights

Most parties in the current rulign coalition favour introducing same-sex civil partnerships. However, their proposals have faced opposition from more conservative elements in the government and also a certain veto from right-wing, opposition-aligned President Karol Nawrocki.

Last month, in an effort at compromise, the ruling coalition presented a new bill that would not specifically introduce civil partnerships, but would allow unmarried partners, including same-sex couples, to sign an agreement granting them certain rights.

After the plans were unveiled, Nawrocki said that he would not sign any bill that “undermines the unique and constitutionally protected status of marriage” but that he was “open to discussion” about measures to “help people, regardless of their gender, relationships, or age, to manage certain matters”.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Miłość Nie Wyklucza/Flickr (under CC BY-ND 2.0)

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.