Cross-Border Recognition of Same-Sex Marriages in the EU: Full Recognition or Mere Effects?
This post was written by Alina Tryfonidou, Assistant Professor in EU law and Family law at the University of Cyprus. It is the second contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak Trojan. The previous post, by Laima Vaige, can be found here.
In its much-anticipated judgment in Cupriak-Trojan (C-713/23), the Court of Justice confirmed that same-sex marriages lawfully concluded in an EU Member State by Union citizens who have exercised free movement rights must be recognised by all Member States, including those whose national law permits only different-sex marriage.
This was not the Court’s first engagement with cross-border recognition of same-sex marriages. In Coman (C-673/16), the Court had already held that Member States must recognise such marriages for the specific purpose of granting a derived right of residence to the third-country national spouse of a Union citizen exercising free movement. But Coman left major questions open, including whether recognition of marriages in the context of EU free movement extends beyond the area of family reunification.
Cupriak-Trojan addresses the above question. As this post explains, the Court of Justice held that the obligation of recognition extends to all legal contexts in which married status may need to be invoked. Nonetheless, the Court left much undefined and therefore several questions arise from this ruling. Thus, as will be explained in this post, while it constitutes a landmark step for the rights of same-sex couples under EU law, the large discretion left to Member States may lead to inconsistent implementation and legal uncertainty.
What the Judgment Adds to the Existing EU Framework
The judgment clearly represents the next major step in the EU’s evolving approach to cross-border recognition of same-sex marriages. Its most significant contribution is the articulation of a broad, free movement-based, requirement of continuity of family status across Member States: if a couple is married in one Member State, that marital status cannot simply disappear when they move to or return to another. The existence of a limping status – i.e. being a married couple in one jurisdiction and legal strangers in another – constitutes in itself an obstacle to free movement, contrary to Article 21 of the Treaty on the Functioning of the European Union (TFEU).
This reasoning draws on the ‘serious inconvenience’ reasoning first articulated in the Court’s surnames case-law (e.g., Garcia Avello (C-148/02) and Grunkin Paul (C-353/06)), and, more recently, in the context of the cross-border recognition of changes in legal gender (Mirin (C-4/23)). The Court now explicitly extends the same logic to (same-sex) marriage: free movement requires coherence of personal and family status within the Union. For same-sex spouses, this is a significant clarification: the ability to live and function as a married couple cannot vary depending on where in the EU they happen to be.
The second point worth mentioning concerns fundamental rights. Although in line with the Court’s consistent approach the human rights analysis appears only at the justification stage, the Court nonetheless in this case engaged more substantially with this issue. Moreover, it relied not only on Article 7 of the Charter of Fundamental Rights of the EU (the Charter) (which needs to be read in line with Article 8 uropean Convention on Human Rights (ECHR)), but it also engaged with Article 21 of the Charter, which prohibits discrimination based, inter alia, on sexual orientation. This is a rather bold step as both the Court of Justice of the European Union and the European Court of Human Rights (ECtHR) have traditionally been cautious when addressing discrimination on grounds of sexual orientation and have often avoided explicit reliance on this ground when alternative reasoning was available. That the Court in this case relied explicitly on Article 21 of the Charter and used it to reinforce the illegitimacy of Poland’s refusal to recognise the marriage ‘under any form’, marks a turning point in the Court’s willingness to treat LGB equality as a serious fundamental rights concern.
Taken together, the above two elements mark a substantial advance beyond Coman: the obligation of recognition of same-sex marriages contracted in other Member States is no longer tied to a narrow functional context, such as residence rights, but extends to all spheres in which marital status may carry legal significance, whilst it is considered an important aspect of the fundamental rights that Union citizens enjoy under EU law.
Key Questions Left Open by the Ruling
Despite its important clarifications, the judgment leaves several critical questions unanswered, and this is likely to complicate both its interpretation but also its practical implementation.
One of the central ambiguities concerns the form of recognition required. In its judgment, the Court at no point does it state explicitly that national law must acknowledge the relationship using the label ‘marriage’. This, in combination with the fact that the Court requires transcription of the marriage certificate only where this is the sole route of recognition, suggests that the obligation may not, in general, extend to recognising the marriage as such. Instead, the judgment appears to follow the suggestion of the Advocate General, that it may suffice for Member States to recognise (merely) ‘the effects’ of the marriage.
This, however, creates uncertainty about the scope of the obligation. In particular, it is unclear whether recognising (merely) the effects of the marriage, entails granting access to all the rights conferred on married couples domestically, or whether Member States may limit recognition to a narrower set of rights. Although the ECtHR in its case-law has required States to treat same-sex and different-sex couples equally in various areas (see, e.g., Kozak v. Poland (App. No. 13102/02) and Pajić v. Croatia (App. No. 68453/13)), and although both the ECtHR and the Court of Justice have, in some cases, required equal treatment even where the couples had different legal statuses (see, e.g., Taddeucci and McCall v. Italy (App. No. 51362/09) and Maruko (C-267/06)), it remains unclear whether same-sex couples whose marriages are only recognised for their effects must receive all the rights that the recognising State gives to different-sex couples who marry under its own law or whose marriages it fully recognises. This uncertainty is bound to be especially problematic in sensitive areas such as parenthood, where States that exclude same-sex couples from marriage, have often intentionally reserved certain rights for married couples, precisely in order to prevent same-sex couples from accessing them.
A related question concerns the form that the recognition of ‘the effects’ of the marriage will take. Does the discretion left to Member States – acknowledged throughout the judgment – permit them to downgrade the marriage to another legal institution, such as registered partnership? The latter would be consistent with ECtHR case-law such as Orlandi and Others v. Italy (App. Nos. 26431/12, 26742/12, 44057/12 and 60088/12)and Formela and Others v. Poland (App. Nos. 58828/12 and 4 others). However, even if this issue is clarified, further questions arise: if downgrading is permitted, must it occur automatically? Or can Member States merely inform the couple that recognition is conditional on contracting a registered partnership domestically? But would such downgrading itself not amount to discrimination on grounds of sexual orientation contrary to Article 21 of the Charter, given that it would only occur for same-sex couples? Would it, also, not cause ‘serious inconvenience’ for the Union citizens concerned and would thus impede their free movement rights?
Another open question concerns the scope of the ruling. Throughout its reasoning, the Court stressed that the couple had been lawfully resident in the host Member State and had created or strengthened their family life there. This leads to the question whether the obligation to recognise marriages contracted in another Member States applies only where the marriage occurred in a scenario involving the exercise of free movement rights and the creation or strengthening of family life whilst the couple were resident in another Member State prior to their return to the State of recognition; thus, it is unclear whether the ruling also applies to couples who travel briefly to another Member State solely to marry and then return home seeking recognition.
Finally, Cupriak-Trojan, like Coman, does not address whether EU law requires recognition of same-sex marriages concluded in third countries, especially in situations where such marriages were initially contracted outside the EU but later recognised as marriages by a Member State. Reading Metock (C-127/08) – involving different-sex marriages – where it was noted that EU law imposes no requirement concerning the place of solemnization of the marriage, together with the Court’s analysis of the prohibition of discrimination based on sexual orientation in Cupriak-Trojan, it would appear difficult to justify excluding same-sex marriages contracted in non-EU States from the scope of recognition.
Conclusion
Cupriak-Trojan marks a significant development in the EU’s approach to the free movement rights of same-sex spouses. The ruling embeds the principle that family status acquired in one Member State must be recognised across borders, preventing the limping statuses that undermine the enjoyment of free movement rights. It also signals a greater willingness by the Court to rely on Article 21 of the Charter and to treat discrimination based on sexual orientation as an important part of its analysis. At the same time, key uncertainties remain regarding the form of recognition required, the implications of the recognition, the possibility of ‘downgrading’, and the scope of situations covered.
The judgment potentially carries its greatest implications for the Member States that currently offer no legal recognition for same-sex couples (Bulgaria, Poland, Romania, and Slovakia, as well as Lithuania, which remains without a legislative framework pending the implementation of its Constitutional Court judgment of April 2025) . These States must now recognise the effects of same-sex marriages concluded elsewhere in the EU, despite lacking any domestic legal institution that could accommodate or reflect such recognition. For obvious reasons, resistance is likely, particularly given that even the narrower obligation stemming from Coman remains only partially implemented in some of these jurisdictions.
Dear Alina, thank you very much for further enriching the discussion with additional elements. In order to facilitate a structured discussion, also with other readers, I offer below three separate comments, each addressing a specific angle of the judgment: (1) “PIL of EU Citizenship” and Functional Recognition, (2) Political Willingness to Move On, and (3) EU and Domestic Orders in Tension: Formalism vs. Functional Operability.
Throughout these remarks, I will adopt a perspective centred on EU law and its interaction with the domestic legal orders of the Member States, focusing on how the CJEU’s reasoning (re)frames traditional categories and procedural choices.
(1) “PIL of EU Citizenship” and Functional Recognition
Cupriak-Trojan can be read as laying the foundations of a “Private International Law of EU citizenship”, where EU law gradually limits the relevance of national connecting factors, such as those based on nationality, whenever they produce limping statuses. This does not mechanically replace domestic rules, but in practice courts and administrative authorities must implement EU law by setting aside the incompatible domestic framework whenever they would undermine cross-border effectiveness. In doing so, a patchwork of application emerges: recognition may be straightforward in some Member States and delayed, obstructed or limited in others, depending on local procedures and willingness to comply. Does this functional approach, even if respecting national identities, risk producing the very inconsistencies in access to rights that EU law seeks to avoid? How can the EU ensure that the “PIL of EU citizenship” operates coherently across different countries without leaving couples trapped in legal uncertainty?
Dear Marco (if I may), that is an interesting point.
While I can see that it might be intellectually tempting to recognize the advent of, to borrow your term, a “PIL of EU Citizenship” in the distance, it would be nonetheless happening in the context that is not about reconstructing national conflict rules (and opting for habitual residence or loci celebrationis as the “functionally imposed” connecting factors) but rather about deconstructing the public policy exception. As the annotated case shows, the former will suffice without the latter.
I also wonder whether the development of uniform conflict rules — I might be reading too much into it, but this seems to be the direction in which you are leaning — or a comparable mechanism, would not require legislation to that effect?
Of course, yes, and I hope I can reciprocate, Krzysztof. Thanks for joining the flow.
You are right to stress that Cupriak-Trojan primarily targets the public-policy (ordre public) exception, which functions as an indispensable safeguard for Member States’ core constitutional principles, rather than purporting to reassess national conflict-of-law regimes. The CJEU’s reasoning indeed operates by narrowing the scope for public-policy refusals and by insisting that national formalities must not neutralise the cross-border effectiveness of EU citizenship rights (Articles 20–21 TFEU; Articles 7 and 21 Charter).
At the same time, that narrowing has powerful, practical consequences that amount to a de-facto re-shaping of recognition “outcomes”. By requiring Member States to set aside domestic procedures or arguments that would produce “limping statuses”, the CJEU forces domestic courts and administrations to treat foreign marriages in a functionally harmonised way. In short, the judgment creates a functional layer that governs how national rules operate in EU-law situations.
On your legislative point: yes – if the Union would like to convert this emergent, case-law driven layer into a uniform, predictable regime, that would require legislation. Courts can progressively limit ordre public and impose procedural equivalence, but they cannot, and should not, draft comprehensive provisions for the Union.
Legislation would be needed to (i) fix uniform rules where desirable, or (better “and”) (ii) create harmonised procedural mechanisms (just for instance, a mutual recognition instrument or a European certificate analogous to the proposed Certificate of Parenthood) to remove the practical patchwork we currently face.
My reading, therefore, is twofold: the CJEU has prudently used its case-law tools to protect the functional core of family life across borders; but this judicial path is inherently partial and may generate uneven implementation. For durable legal certainty and equal access to rights across all Member States – while still respecting national identities – a targeted legislative response would be both appropriate and necessary.
(2) Political Willingness to Move On
Perhaps looking ahead, one can foresee that the judgment may signal a future in which preserving cross-border family life goes beyond being a by-product of mobility and is recognised as an essential component of EU citizenship. However, the actual impact depends heavily on the political willingness of the Union and Member States to enforce this principle. Can the EU rely solely on case law to embed family continuity as a structural right, or will political and legislative action be finally necessary to avoid fragmented implementation? If the Union fails to act decisively, the protection of same-sex couples could remain uneven, reinforcing the limping status the CJEU aims to prevent. In this light, Cupriak-Trojan invites reflection on whether free movement rights and family life can truly be guaranteed without harmonised frameworks or, at least, explicit legislative backing.
(3) EU and Domestic Orders in Tension: Formalism vs. Functional Operability
Cupriak-Trojan exposes the growing tension between the EU’s functional logic for ensuring the continuity of cross-border family life and domestic legal systems that remain rooted in formal categories and constitutional identity. The EU legal order advances with a rights-driven, mobility-augmenting rationale, while national systems often operate with rigid formal requirements and deeply embedded normative concepts of marriage and family. In these sensitive domains, the two orders should meet, yet they increasingly collide.
The CJEU does not force Member States to assimilate same-sex marriage substantively, but it obliges them to recognise it in a way that is effective, non-discriminatory, and administratively workable. This prompts a core question: if domestic procedures must be adapted to achieve EU-mandated functional outcomes, do they still reflect genuine national discretion, or do they become (mere) instruments for implementing EU citizenship rights?
Here the Union’s motto, “United in diversity”, becomes central: respect for national identities remains essential, but it cannot justify procedural architectures that undermine the continuity of cross-border family life. Yet this raises another tension: can domestic constitutional identities meaningfully operate when EU law requires outcomes that national formalism was often designed to exclude?
The case forces us to confront a structural dilemma: are formal domestic categories still relevant in practice, or is the EU’s functional approach reshaping the limits of national procedural autonomy (despite formally preserving it)? As the EU pushes toward cross-border effectiveness and legal certainty, national systems must adapt; but the friction between parallel legal orders – one dynamic and goal-oriented, the other rooted in constitutional self-definition – remains unresolved.