AG De La Tour’s Opinion in Wojewoda Mazowiecki on Poland’s Refusal to Transcribe a Same-Sex Marriage Certificate

In his opinion of 3 April 2025 in C-713/23, Wojewoda Mazowiecki, Advocate General (AG) Richard De la Tour expressed the view that the Articles 20 and 21(1) TFEU, read with Article 7 of the Charter of Fundamental Rights, allow a Member State to refuse the transcription of a same-sex marriage certificate lawfully issued in another Member State, as long as alternative means are available to ensure that the marriage is recognised by third parties. However, they do preclude a Member State from refusing to recognize such a marriage altogether — through any means or document proving the marital relationship and chosen surname — solely because its national law does not allow same-sex marriage.

Facts of the Case

Jakub Cupriak-Trojan, a Polish and German national, and Mateusz Trojan, a Polish national, married in Berlin, Germany, and later moved to Poland. Following their marriage, Mr. Cupriak-Trojan legally added his spouse’s surname under German law, and Polish authorities updated his records accordingly.

However, their request to have their German marriage certificate transcribed into the Polish civil registry was denied by the Polish authorities on the grounds that Polish law does not recognize same-sex marriages, deeming transcription contrary to Poland’s fundamental legal principles, including the legal requirement in Poland that marriage be between a man and a woman.

The couple challenged the refusal, with the ruling resulting therein stating that national law and public policy do not accommodate same-sex marriages. It was further held that the refusal did not infringe EU law or the European Convention on Human Rights, as the matter was unrelated to free movement rights.

The couple appealed, and a preliminary question was referred to the Court of Justice of the European Union. The question asked whether EU law, particularly Articles 20 and 21 TFEU and the Charter of Fundamental Rights, prevents a Member State from refusing to recognize and transcribe a same-sex marriage certificate, thereby restricting the couple’s ability to reside in Poland as a legally married couple with a shared surname on the grounds that the law of the host Member State does not provide for same-sex marriage. The case raises fundamental questions about the matters of personal status and the overarching principles of EU law, particularly concerning the freedom of movement and the right to private and family life.

Analysis of the Advocate General

AG De La Tour analyses that the refusal from Polish authorities has significant implications, as it directly affects the couple’s legal status, their ability to exercise rights as spouses and their access to various legal benefits linked to marriage within Poland. He notes that, while matters of personal status, including marriage, traditionally fall under the competence of Member States, they must exercise this power in compliance with EU law, particularly with regard to the freedom of movement and residence of EU citizens.

In support of this, AG De La Tour refers to the Court’s established case law (Coman (C-673/16), Pancharevo (C-490/20) and Mirin (C-4/23)), which confirms that civil status documents issued in one Member State must be recognized by other Member States for the purpose of exercising EU rights, even if Member States are not required to grant them full civil effects. This principle has been applied in cases concerning the recognition of identity details such as names and gender changes. The Court has held that refusal to recognize such elements can create serious administrative and personal inconveniences, thereby restricting the freedom of movement guaranteed under Article 21(1) TFEU. AG De La Tour extends this reasoning to same-sex marriages, asserting that failure to recognize such marriages similarly restricts the right to freedom of movement by creating legal uncertainties and barriers for same-sex couples who move between Member States.

In addition, AG De La Tour emphasizes the relevance of Article 7 of the Charter of Fundamental Rights of the European Union, which guarantees the right to private and family life. This provision aligns with Article 8 of the European Convention on Human Rights, which has been interpreted by the European Court of Human Rights as requiring States to provide legal recognition and protection for same-sex couples. Notably, the European Court of Human Rights has ruled in several cases that Poland has failed to comply with its obligations under Article 8 of the European Convention on Human Rights by not providing any legal framework for same-sex unions. While the European Court of Human Rights has clarified that States are not obliged to legalize same-sex marriage, they must nevertheless ensure adequate recognition and protection for same-sex couples. The European Court of Human Rights has also acknowledged that States retain a wide margin of appreciation in deciding whether to register same-sex marriages conducted abroad, as demonstrated in Orlandi and Others v. Italy and Formela and Others v. Poland.

Against this backdrop, AG De La Tour concludes that while EU law imposes an obligation on EU Member States to recognize same-sex marriages for the purposes of free movement, it does not necessarily mandate the registration of such marriages in national civil registers if domestic law does not provide for them. However, the particular administrative practice in Poland, which effectively requires transcription in the civil register for same-sex spouses to prove their marital status, renders such transcription necessary in this case. This means that, in practice, Poland’s refusal to transcribe the marriage creates a disproportionate obstacle to the free movement rights of the individuals concerned.

To address these complexities, AG De La Tour suggests distinguishing between two distinct obligations: first, the obligation to recognize a marriage for free movement purposes, which derives from EU law, and second, the obligation to register it in a national civil register, which remains within the Member State’s competence. This approach seeks to balance the division of competences between the EU and Member States while ensuring that fundamental rights protections for same-sex couples are upheld. Furthermore, AG De La Tour notes that alternative mechanisms, such as allowing same-sex spouses to adopt a joint surname or enabling them to rely on foreign marriage certificates, could provide a form of recognition that facilitates their rights without necessarily requiring full registration in Poland’s civil status registry.

AG De La Tour’s opinion emphasizes that the distinction made is consistent with the Court’s case law regarding civil status documents related to same-sex couples or their children. Such documents must produce effects in another Member State, even if that State does not recognize the legal situation in question.

A contrary interpretation would imply recognizing an unlimited right to freedom of movement and residence for EU citizens, extending to personal status, except in cases of abuse of rights. In particular, the issue would arise as to whether this solution applies when the refusal to register a foreign marriage is based on grounds other than the absence of a difference in sex between the spouses.

Regarding civil status, according to AG De La Tour, the Court would shift from an approach based on the Union citizen’s freedom of movement as part of their identity, to one that connects this freedom directly with the right to respect for family life. This right would become an autonomous principle within the framework of free movement, combined with the prohibition of discrimination based on sexual orientation.

AG De La Tour notes that, even in situations where the best interests of the child are paramount, the Court has not fully adopted this approach. Furthermore, the European Commission has published the proposal for a regulation requiring Member States to recognize parenthood established in another Member State for purposes beyond the exercise of EU rights, such as freedom of movement.

In conclusion, AG De La Tour proposes that Member States cannot be required under EU law to register a same-sex marriage from another Member State unless registration is the only means for an individual to prove their marital status. The obligation for civil registration related to freedom of movement should, therefore, be limited to cases where there is uncertainty as to the identity of the Union citizen and that uncertainty can be dispelled by that means alone.

Comment

AG De La Tour’s Opinion in Wojewoda Mazowiecki case reinforces the principle that while Member States retain competence over matters of personal status, they must exercise this competence in a manner that does not undermine the rights of EU citizens, particularly their freedom of movement and residence.

The opinion emphasizes that restrictions on the recognition of same-sex marriages should not impose disproportionate obstacles on individuals seeking to exercise their EU-based rights. The CJEU’s case law has consistently affirmed that barriers to free movement cannot be justified by national legal traditions alone if they result in obstacles in the enjoyment of these rights. Broadly, this reasoning also aligns with the commitment of EU law to ensuring non-discrimination, a principle which is embedded in both the Treaties and the Charter.

Non-discrimination is a fundamental right under EU law, protected notably by Article 21 of the Charter of Fundamental Rights and Article 19 TFEU. This right, if it is to be effective, requires Member States to revisit and, where necessary, adapt their laws and administrative practices that could otherwise undermine the exercise of Union rights. In this context, the refusal to recognize a same-sex marriage for purposes linked to the exercise of free movement rights creates a legal limbo for affected couples, placing them at a disadvantage compared to heterosexual spouses. Such legal uncertainty can manifest in various ways, from difficulties in proving one’s marital status to the denial of rights related to family reunification, social security and inheritance.

Basically, by drawing a distinction between recognition and registration, AG De La Tour attempts to strike a balance between national legal autonomy and the foundational principles of EU law. While Member States are not obliged to grant full civil effects to same-sex marriages concluded in other States, they cannot create administrative or legal barriers that make it impossible for individuals to prove their status when exercising their EU rights. This approach is pragmatic, as it acknowledges the diversity of legal traditions within the EU while ensuring that this diversity does not translate into discrimination or disproportionate burdens. This also highlights the functional yet respectful nature of EU law toward national identities. EU law is primarily concerned with the ultimate objective — in this case, ensuring the full and unrestricted exercise of EU rights. The means to achieve this goal, including procedural aspects, remain within the competence of the Member States, allowing them to implement Union objectives in ways that align with their legal traditions and national specificities.

However, a convincing analysis must account not only for the EU integrationist values (freedom of movement and non-discrimination), but also for the legitimate interests of Member States in regulating personal status according to national constitutional traditions. EU law itself, although strongly committed to integration, recognizes that Member States’ competences must be respected, provided that they are exercised without undermining the essence of EU rights. In this regard, it is important to note that in Poland, the restriction of marriage to opposite-sex couples is explicitly enshrined in the Constitution. Article 18 of the Polish Constitution defines marriage as a union between a man and a woman, placing it under the protection and care of the Republic of Poland. A similar constitutional entrenchment is found in Hungary, where the Fundamental Law in Section L, as amended in 2020, explicitly defines marriage as the union of a man and a woman and affirms that “the mother shall be a woman, the father shall be a man”. The Romanian Constitution, particularly Article 48, defines the family as being founded on a freely consented marriage and a 2018 referendum, which failed to meet the minimum turnout requirement, sought to specify that marriage is a union between a man and a woman. These constitutional definitions reflect deliberate national choices about the regulation of personal status, rooted in the respective countries’ constitutional identities.

The challenge, therefore, lies in balancing these competing instances through solutions. EU private international law provides several models for balancing and the coexistence of different values: for example, the principle of “partial recognition” (recognizing a status only for specific purposes) – Coman (C-673/16), paragraph 45, and Pancharevo (C-490/20), paragraph 57, or the use of certificates (such as the European Certificate of Succession under Regulation (EU) No 650/2012) that allow individuals to prove personal status without requiring full recognition within the “host” legal order. Therefore, the concept of “recognition without full effect” permits a limited acknowledgment of foreign acts or documents, sufficient to enable the exercise of fundamental freedoms, without compelling Member States to modify their internal legal regimes.

It is therefore essential to question whether such techniques provide solutions which can be considered effective. Without delving too deeply into the details that a thorough analysis would require, the main issue lies in the gap between EU legal obligations and the “willingness” or “ability” of Member States to comply. While the EU ensures and promotes fundamental freedoms, Member States may retain reservations, particularly when national legal principles, such as those concerning marriage, conflict with broader EU mandates. Thus, while these solutions offer methods to delicate balance national and EU law, they do not always ensure comprehensive or consistent rights across Member States. At its core, even the Coman case, despite the ruling of the Court of Justice of the European Union, cannot be considered resolved, and the saga continues before the European Court of Human Rights (Application no. 2663/21).

In essence, AG De La Tour’s opinion highlights the limitations of the current legal framework. This raises the question of whether the reliance on case law to address these issues exposes a broader need for a legislative solution at the EU level. One promising initiative is the proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood, which also introduces the European Certificate of Parenthood. However, the proposal focuses on parenthood. If feasible and conceivable, a similar initiative addressing marriage could prevent such situations by establishing clear rules and obligations on the mutual recognition of legal relationships formed in another Member State. And it could represent the (perhaps not too distant?) next step following both the LGBTIQ Equality Strategy 2020-2025 and its update by the European Commission in the 2025 work programme for the 2024-2029 period.