CJEU Violates EU Member State Sovereignty — Ordo Iuris on “Same-Sex Marriage” Ruling

Attempt to transcribe a “marriage” certificate

The Ordo Iuris analysis concerns the judgment of the Court of Justice of the European Union of November 25 (see also our news piece published on that day). In this case, the complainants are two men, Polish citizens, who entered into a “marriage” in Germany in 2018. The law there has allowed this since 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. The appellants then filed an appeal with the Masovian Voivode, who nevertheless upheld the contested decision. Therefore, the complainants decided to file a complaint against the administrative decision with the Voivodeship Administrative Court (WSA) in Warsaw. The WSA dismissed the complaint by a judgment of July 1, 2020, in case no. IV SA/Wa 2982/19.

Poland’s Supreme Administrative Court refers a question for a preliminary ruling to the CJEU.

The complainants decided to file a cassation complaint with Poland’s Supreme Administrative Court (NSA). The NSA was aware of the case law on which the WSA relied when issuing the contested judgment; on the other hand, it expressed doubt as to whether it might infringe, inter alia, Article 7 (the right to respect for privacy) and Article 21(1) (the prohibition of discrimination) of the European Union’s Charter of Fundamental Rights, as well as provisions of secondary law.

The Polish NSA addressed the domestic body of case law concerning the protection of marriage as a union between a woman and a man in a very cursory manner, without even attempting to present to the CJEU the substance of the domestic judgments. The NSA limited itself to the brief statement that it did not address in detail the issue that was the subject of the question referred to the CJEU. In this context, it is particularly important that the Polish Supreme Administrative Court did not address at all the issue of whether marriage, understood as a union between a woman and a man, forms part of the essence of national sovereignty, which the Republic of Poland could not transfer to the European Union without amending its Constitution. It did not even mention the judgment of the Polish Constitutional Tribunal in case K 18/04, in which the Tribunal confirmed that Article 18 of the Constitution defines marriage as a union between a woman and a man.

Accordingly, the Polish NSA, at the request of the complainants’ counsel, referred the following question to the Court of Justice of the European Union for a preliminary ruling:

„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 its judgment of November 25, 2025, in Case C-733/13, the CJEU held that birth certificates must be transcribed, on the basis of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. In the reasoning of the judgment, it was stated that Polish regulations excluding, on account of the constitutional protection of the family and marriage, the transcription of marriage certificates for “same-sex marriages” issued by other Member States are contrary to the provisions of the Charter of Fundamental Rights and the EU Treaties on Union citizenship.

The CJEU emphasized that EU citizenship gives rise to a range of rights, including vis-à-vis a citizen’s state of origin, which also include the right to lead family life in the manner of one’s choosing. The Court held that, with respect to citizens who are married, this includes, among other things, the assurance of being able to continue in the country of origin the family life established in the host Member State, and this freedom also applies to same-sex couples.

The CJEU acknowledged that matters of civil status fall within the competence of the Member States, but they must be addressed in a manner consistent with EU law. The Court of Justice of the European Union concluded, based on the complainants’ unverified assertions and the explanations of the Government of the Republic of Poland, that the lack of transcription of the German “marriage” certificate makes their everyday life difficult. Accordingly, the refusal to transcribe the “marriage” certificate constitutes an obstacle to the exercise of the freedoms guaranteed under EU law.

Moreover, the CJEU found that, in light of the provisions of the Charter of Fundamental Rights, the inability to transcribe the records of marriages for “same-sex marriages” when such transcription is available to heterosexual couples constitutes impermissible discrimination on the grounds of sexual orientation.

Protecting marriage is the essence of sovereignty

While analyzing the CJEU’s November judgment, Ordo Iuris lawyers focused on issues concerning the protection of Poland’s sovereignty and the relevant provisions of the Polish Constitution. Ordo Iuris experts point out that the CJEU ruling runs counter to the established case law of national courts, including resolutions by a seven-judge panel of the Supreme Administrative Court (NSA), indicating that Article 18 of the Constitution of the Republic of Poland precludes the transcription of such acts. Moreover, the reasoning dealt only superficially with the provisions of the Polish Constitution relevant to the case. Ordo Iuris lawyers also noted that there are serious arguments for refusing to apply EU law as interpreted by the CJEU when that interpretation amounts to a breach of the principle of conferral (ultra vires). The CJEU judgment runs counter to the uniform understanding in the case law of the constitutional guarantee of marriage as a union between a woman and a man, and also constitutes an unwarranted interference in a matter that the Polish Constitutional Tribunal, as early as in its accession judgment K 18/04, explicitly identified as belonging to the inviolable essence of sovereignty.

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