The CJEU Now Says EU Member States Must Recognize Same-Sex “Marriages”

Introduction

The background to the case in question is the situation of two men, Polish citizens, who were married in Berlin in 2018 in accordance with local law (in Germany, so-called same-sex marriage was legalized in 2017). Subsequently, the men filed an application with the Polish Civil Registry Office of Warsaw for the transcription of a marriage certificate, that is, the official transfer of the contents of a foreign marriage certificate into the Polish civil status registers. Since Polish law does not recognize the institution of “same-sex marriage,” and transcription would violate the fundamental principles of the Polish legal order (Article 18 of the 1997 Constitution of the Republic of Poland, under which marriage as a union of a woman and a man is protected by the Republic of Poland), the head of the Civil Registry Office issued a decision refusing the transcription.

Litigation in Poland

Following the denial, the interested parties decided to file an appeal with the Masovian Voivode, who nonetheless upheld the decision of the Head of the Civil Registry Office. The Voivode, in justifying his decision, indicated that in the case of transcribing a German marriage certificate, the head of the civil registry office would have to enter the given names and surnames of two men, with the details of one of them in the “woman” field. Additionally, he indicated that in Poland only a man and a woman can enter into marriage; therefore, it is impermissible to record two men as spouses in the civil status records.

The case is referred to the CJEU

Subsequently, the interested parties decided to file a complaint with the Voivodeship (Province) Administrative Court in Warsaw, which, however, dismissed the complaint. The two men then filed a cassation appeal with the Supreme Administrative Court, in which they submitted a motion to refer a question for a preliminary ruling on the interpretation of Article 7 and Article 21(1) of the European Union’s Charter of Fundamental Rights (respectively, the right to respect for private life and the prohibition of discrimination) and Article 21 of the Treaty on the Functioning of the European Union (freedom of movement). Poland’s Supreme Administrative Court decided to stay the proceedings and refer a request for a preliminary ruling to the Court of Justice of the European Union under Article 267 TFEU, worded as follows: „Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of the [Charter] and Article 2(2) of Directive [2004/38,] be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State does not provide for same-sex marriage?”

CJEU judgment

In the judgment delivered on 25 November 2025 (C-713/23) the CJEU held that “the refusal, by the authorities of a Member State of which two Union citizens of the same sex are nationals, to recognise the marriage which those Union citizens have lawfully concluded pursuant to the procedures laid down for that purpose in another Member State in which those Union citizens have exercised their freedom to move and reside, is likely to hinder the exercise of the right enshrined in Article 21 TFEU, since such a refusal is liable to cause serious inconvenience for those citizens at administrative, professional and private levels.” In this regard, the Court of Justice of the European Union relied on the fact that refusing to recognize a marriage entered into in another Member State creates the risk of encountering serious difficulties in organizing family life. Therefore, in the CJEU’s view, the refusal by the authorities of a Member State to recognize the marriage of two Union citizens of the same sex, contracted while they were residing in another Member State, constitutes an obstacle to the exercise of those Union citizens’ right, laid down in Article 21(1) TFEU, to move and reside freely within the territory of the Member States.

Ordo Iuris Comment

Two points are worth noting. First, the directive on the free movement of persons was adopted before Poland’s accession to the EU in 2004, and Polish negotiators simply did not foresee that such a provision could be used to impose on Poland the obligation to recognize same-sex “marriages” entered into abroad.

Moreover, the concept of ‘spouse’ in Article 2(2) of the directive should not be defined autonomously, since the EU lacks competence to regulate family law (including the definition of marriage), but rather in accordance with the understanding adopted in national family law. It is worth noting here, for example, Article 9 of the Charter of Fundamental Rights of the European Union, which guarantees the right to marry but does not define it, expressly referring in this regard to “national laws.”

Leaving aside for the moment the issue of the EU’s lack of competence to regulate family law, it should be noted that a potential statute institutionalizing same-sex unions, designed to respond to the alleged obligation of states in this regard, would be clearly incompatible with Article 18 of the Polish Constitution, which provides that marriage is a union between a woman and a man. In 2013, in fact, the Polish Sejm already voted on a bill of this kind (Sejm paper no. 552, 7th term), but it was rejected after a reminder during the debate by a representative of the then Ministry of Justice that “from Article 18 it essentially follows a contrario a prohibition on the institutionalization of heterosexual and homosexual unions that would be essentially similar to marriage (…).”

Today’s CJEU judgment is yet another example of overstepping the powers conferred by the EU Treaties and will undoubtedly fuel the creation of new unnecessary conflicts between the EU and the Member States.