Cupriak-Trojan: A First Reading from a Private International Law Perspective

This post was written by Laima Vaigė, Associate Professor and Senior Lecturer in Private International Law at Uppsala University. It is the first contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in Cupriak-Trojan.

The Court of Justice of the European Union delivered a landmark Grand Chamber judgment in Cupriak-Trojan (C-713/23) on 25 November 2025. The ruling is concerned with the obligation of a Member State to recognise a same-sex marriage lawfully concluded in another Member State when the spouses, both EU citizens, return to their State of nationality.

The dispute concerned a Polish national and a Polish-German national, who had married in Germany and requested that their marriage certificate issued in Germany be recognised and transcribed in the Polish civil register. The request was refused, as Poland does not allow same-sex couples to conclude marriages (nor registered partnerships). The case was referred to the Court of Justice by the Polish Supreme Administrative Court, and because it is about “recognition” of a marriage lawfully concluded abroad, the judgment also has implications for private international law (PIL).

Key Reasoning

The Court of Justice held that Poland’s refusal to recognize a same-sex marriage lawfully concluded in Germany, and to transcribe the foreign marriage certificate, creates serious administrative, professional, and private inconveniences (para 51), prevents the couple from continuing their family life in Poland (para 52), and exposes them to serious obstacles in everyday life (para 53). Such a refusal therefore constitutes an obstacle to Article 21 of the Treaty on the Functioning of the European Union (TFEU) free-movement rights (para 54).

Although restrictions may in principle be justified (paras 55–56), the Court found that neither national identity nor public policy can justify the refusal. Recognition of a same-sex marriage concluded abroad does not undermine Poland’s national conception of marriage and does not require the introduction of same-sex marriage domestically (para 61). Consequently, the obligation of recognition “does not undermine national identity or constitute a threat to public policy” (para 62).

Any restriction must also comply with the Charter of Fundamental Rights of the EU (the Charter) (para 63). Article 7 of the Charter mirrors Article 8 of the European Convention on Human Rights (ECHR) (para 64), and the ECtHR has repeatedly confirmed that same-sex couples fall within both private and family life (see, e.g., Orlandi and others v. Italy). With reference to a number of judgments in which the ECtHR has held that Poland has breached its duties under Article 8 of the ECHR, the Court of Justice highlighted that Poland’s failure to provide legal recognition leaves couples in a “legal vacuum”, contrary also to Article 7 (paras 65–67). While Member States may choose how to provide recognition (para 69), they must establish some effective procedure (para 68). In Poland, transcription is the only available mechanism, and without it, recognition depends on inconsistent administrative discretion (paras 71–73). Since heterosexual couples can obtain transcription but same-sex couples cannot (para 74), the situation amounts to discrimination based on sexual orientation, prohibited by Article 21(1) of the Charter (para 75).

Finally, the Court underlined that Articles 20 and 21 TFEU and Articles 7 and 21 of the Charter are directly effective. National courts must disapply conflicting national law where it cannot be interpreted in conformity with EU law (para 76).

Implications for Domestic and EU Private International Law

In PIL, substantive validity of marriage concluded abroad is a crucial question for “recognition” – different genders being one of the substantive requirements for entering into marriage in Poland and some other States. Marriages can be concluded under different substantive laws, hence choice-of-law rules are needed to determine their substantive validity.

In some States, substantive validity of marriages concluded abroad is determined by the law of the habitual residence of the spouses (e.g., Estonia) or lex loci celebrationis (law of conclusion of marriage), e.g. Lithuania. In other States, among them Poland, it is determined by the law of nationality of the spouses. The Polish Prawo prywatne międzynarodowe (Polish PIL Act) of 4 February 2011 provides that law of nationality at the time of entering into marriage determines each spouse’s substantive capacity to marry (Article 48). There is also the ordre public safeguard (Article 7) to prevent validity of certain marriages in exceptional cases. Besides PIL rules, administrative rules on transcription apply, and these also contain ordre public exception (Prawo o aktach stanu cywilnego, i.e, Law on civil status records,  of 28 November 2014, Article 107(3)).

The Court does not engage with Polish PIL in its reasoning, and only briefly mentions the ordre public safeguard in Article 7 of  the Polish PIL Act in its description of the legal context (not directly relevant, because Article 48 leads to application of the Polish law). Once the ECJ turns to the substance, its analysis is framed entirely through EU free-movement law and the Charter. When the Court assesses “public policy” (paras 57–62), it does so not as an interpretation of the Polish ordre public exception in PIL but as an EU-law review of whether national identity or public policy can justify a restriction on Article 21 TFEU. In other words, the Court interprets the EU concept of public policy, or the EU ordre public , which cannot be determined unilaterally by Member States. As a result, Polish PIL plays only a marginal role: it is effectively displaced by the primacy of EU free movement and fundamental rights.

The Court highlighted in Cupriak-Trojan that Articles 20 and 21 TFEU and Articles 7 and 21(1) of the Charter have direct effect and national courts must ensure their effectiveness by disapplying the conflicting national provisions. Various provisions of national law can be disapplied as a result. As to private international law, there is a strong case for disapplying, in EU-law situations, the PIL rule that ties marriage validity to the spouses’ nationality. Instead, a marital status concluded in another EU Member State should follow the spouses, provided that they had a residence in the Member State where marriage was concluded (see para 52). Hence, in situations where EU law is applicable, habitual residence or lex loci celebrationis appear to work better as connecting factors in determining substantive marriage validity.

Do the concepts of “habitual residence” in PIL and “residence” in Coman (C-673/16) and Cupriak-Trojan coincide? They might, but not always, because a person can obtain habitual residence very quickly in certain situations. Meanwhile, “genuine residence” (para 51 in Coman) implies EU citizen who resides in the Member State where marriage was concluded for more than three months, under certain conditions provided in secondary EU law (art 7.1. of Free Movement Directive).

It can be observed that in the previous case-law on cross-border recognition of surnames, there was no requirement of residence. For instance, in Garcia Avello case, the surname was obtained while living in the country of birth, never changing the State of residence. In Freitag, the surname was obtained in Romania, while the applicant resided in Germany. The Court found violations of Article 21 TFEU. In both cases, the applicants had dual nationality. From the reasoning in Freitag, it appears that obtaining the new civil status in the place of nationality should also be acceptable. The requirement of residence hence applies, so far, only to cross-border recognition of marriages, but not surnames. Although the requirement of residence for entering into marriage works rather well in PIL, it does not stand on a strong footing, from the perspective of EU primary law, and even less so, from the perspective of the ECHR.

Although Cupriak-Trojan is a free-movement case, it must have consequences for EU PIL. EU secondary law (inter alia, the Brussels II ter and the Succession Regulation) must apply in compliance with EU primary law, which has now been interpreted. Where these instruments rely on marriage, Member States should not exclude same-sex spouses, provided that their marriage was concluded within the EU and involved at least one EU citizen lawfully residing in the State of conclusion. Given the direct effect of the relevant Articles, national courts must disapply conflicting national PIL rules and substantive law rules where these would undermine the required recognition for the purposes of EU law.

Loopholes and Narrow Readings

One can see in this case a “free-market logic” applied to civil status. The Court treats surnames, marriages, and legal genders as if they were legal products that must move freely in the Union, to ensure free movement of persons to which they are attached.

At the same time, these cases are not really about market integration. They concern the substance of rights attached to Union citizenship and reflect the growing constitutional role of fundamental rights in the EU legal order since the Charter acquired primary-law status. Indeed, free movement cannot function if a person, after moving or returning to a Member State, is no longer sure whether they are married, what their legal name is, or which gender is recognised in law. That uncertainty creates serious practical and legal obstacles to everyday life and deters free movement.

There are certain loopholes remaining, particularly where EU law does not reach. If the EU citizens marry in a third country and then return to their State of nationality (e.g. Poland), or if it is a third country nationals marrying in the EU and then moving to Poland, they cannot be helped by neither free movement nor EU Charter rights. In these situations, the couples can still claim infringement of the ECHR (Article 8, possibly in combination with Article 14).

Another problem is that in the region where heterosexuality is the social norm, narrow readings and outright refusals of implementation (of both ECtHR’s and Court of Justice’s judgments) have been increasingly common. Despite the judgments of the Court of Justice in Coman and Pancharevo, the child of two mothers in the latter case was never recognized as the child of the Bulgarian mother, and Mr. Coman’s husband never got a residence right in Romania.

In Coman, the Court used a narrowing phrase, “for the sole purpose of” (derived residence rights) in its reasoning and conclusions. This allowed readings that “interpretation relates only to the Directive”, which means that Mr. Coman needs to get a job in Romania (or otherwise satisfy Article 7(1) requirements of the Directive), and only in that scenario, his husband might claim the derived residence right. The Romanian authorities did not even use this reasoning, but simply dismissed the case on procedural grounds; a case is pending at the ECtHR, as a result. As to the aftermath of Pancharevo, the Bulgarian authorities decided that they needed to know which one of the mothers was the birth-giving mother, and, deciding it was not a Bulgarian national, refused to recognize the filiation of the child, thus the child had no right to Bulgarian citizenship, and subsequently, authorities could not issue a Bulgarian passport to the child in question.

The narrow readings of the Coman and Pancharevo cases were still possible due to narrow formulations of the Court, despite the fact that EU primary law was also interpreted in these cases: Article 21 TFEU, Article 4.2 TEU, and Article 7 of the EU Charter, in Coman, and Articles 20 and 21 TFEU, Article 4.2 TEU, Articles 7, 24 and 45 of the EU Charter, in Pancharevo.

In contrast to previous case-law, Cupriak-Trojan contains no narrowing formulation “for the sole purpose of” (transcription). On the contrary, the judgment explicitly references the loss of concrete legal effects when recognition is withheld: access to health insurance, registration of surnames (para 50), and enforceability of obligations between spouses and third parties (para 52). These examples show that recognition must preserve the practical ability of same-sex spouses to continue living “as married persons” and to “rely on their marital status” after returning to their home state (paras 52–53).

Transcription is only one means by which Member States may implement recognition, but implementation must be effective, not formalistic or symbolic. It follows that Member States should not provide a procedure that strips the marriage of its ordinary legal consequences. That means, in my reading, full recognition of the civil status for the purposes of private international law.

Is there room under EU law for downgrading a same-sex marriage to a registered partnership? The Court in Cupriak-Trojan did not address this because neither the facts nor the legal context allowed it.

The ECtHR’s case law might suggest that downgrading is compatible with the Convention, but it concerns recognition of marriages from any country, including possible marriage tourism. The EU context differs: it concerns only marriages concluded by EU citizens in the EU while lawfully residing in another Member State. If downgrading were permitted, a same-sex marriage would not be seen as a marriage under EU secondary legislation (except the Free Movement Directive), thereby potentially eliminating or reducing the legal effects that the Court appears concerned to preserve in Cupriak-Trojan.

In some countries, even the most basic legal effects are not available to registered partners (e.g., a registered partnership in Lithuania currently cannot be dissolved and has fewer effects than cohabitation in other EU countries). Perhaps downgrading can happen only where the registered partnership confers legal effects comparable to marriage. A simpler solution is that a lawfully concluded marriage remains a marriage and cannot be downgraded in the intra-EU context. If it is a marriage under EU primary law, it should remain a marriage under EU secondary law.

Even if the room for narrow readings is limited, it remains to be seen how the Polish court ultimately decides the case on the merits and how will the Polish legislator reacts.

In contrast to the approaches taken in other jurisdictions in the field of constitutional law, the judgment of the Court of Justice is not such a gigantic step, but respects both national identity of the recognizing state, as well as the logic of private international law.