Cupriak-Trojan – Some Comments from Poland
This post was written by Anna Wysocka-Bar (Jagiellonian University). It is the fourth contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak-Trojan. The previous posts, by Laima Vaige, Alina Tryfonidou and Elizabeth Perry, can be found here, here and here, respectively.
In this post I would like to provide some comments from the Polish perspective to the discussions on judgement given by the Court of Justice in Cupriak-Trojan (C-713/23).
Introduction
Some of the observations included in the opinion of the Advocate General and in the Court’s judgment are indeed very accurate: the foreign marriage certificate, in accordance with Polish Code of Civil Procedure, “must have the equivalent probative value as a Polish certificate” (para. 44 of the opinion). However, “those rules are not, in practice, applied by competent authorities” (ibidem), and therefore the transcription of the marriage certificate is the only way a person can prove a status as a married person (paras 44 and 60 of the opinion). In addition, “under Polish law, heterosexual couples are entitled to have their marriage certificate transcribed” (para. 74 of the judgment).
Given the above and the reasoning based on EU Law, the CJEU decided that Poland “is required to apply that procedure [of transcription – editors’ note] without distinction to marriages between persons of the same sex and those between persons of the opposite sex” (para. 75 of the judgment). Hence, all marriage certificates coming from EU Member States must be transcribed into Polish civil status registers.
Transcription of a Marriage Certificate
The Court’s judgement is now much debated in Poland, the Member State of origin of the preliminary question. As one can imagine, different, sometimes contradictory, statements are made. The judgement “comes as no surprise” (see for instance, a comment by the Commissioner for Human Rights here). The Secretary of state by the Prime Minister explained that the government must now internally “discuss how this judgment should be implemented … everything depends on the decision of the government and civil status registries” (see here).
Some commentators try to put the obligation to act in conformity with the judgement on the shoulders of the authority which is competent to transcribe foreign civil status certificates in Poland, namely the Head of the Office of the Civil Status Registry (Kierownik Urzędu Stanu Cywilnego). It must be underlined however that Kierownik Urzędu Stanu Cywilnego even if willing to transcribe a foreign marriage certificate of a same sex couple (which is often the case!) cannot do it currently (with no legislative changes implemented). The Law of Civil Status Records, an IT system, in which the records are created and kept, as well as the underlying marriage certificate form require to indicate the data of a “woman” (kobieta) and a “man” (mężczyzna). National ID numbers (PESEL) which are associated with a given person in the records also indicate the sex of the person concerned, and therefore, the IT system would not “accept” the data of two persons of the same sex in one certificate. Kierownik Urzędu Stanu Cywilnego does not have any tools to arbitrary decide how to fill in the two spaces or how to allocate them to same sex partners (compare para 23 Judgement).
It might seem that adjusting an IT system and forms is an easy, rather cosmetic change, but still it does not change the overall conclusion that amendments to the legislation on civil status records are needed. Suggestions that what we need is a change of the attitude of Kierownik Urzędu Stanu Cywilnego are – in my view – unfounded.
Effects of the Transcription
Imagining that necessary changes are implemented and transcription is being made, one can ask what the resulting consequences are. I do agree with the view presented by Laima Vaige in her post, that only a broad reading of what are consequence of transcription (recognition) should be adopted. Transcription of the marriage certificate, confirming the status of being in a marriage should result in being treated as “a spouse” for all purposes provided for in Polish law, to name some as example: maintenance, tax, social security or inheritance.
If it was supposed to be otherwise, it would require a whole reconstruction of the legislation on civil status records in Poland. If some marriage certificates would mean something different than others this would have to be clearly described. As noted “transcription generates a Polish civil status record which is ‘detached’ from the original record registering the event (…) the direct legal effect of the transcription of a foreign civil status record is the creation of a Polish civil status record which has the same probative value as civil status records drawn up in Poland” (para. 28 Judgement). And then also cross-border couples would still think twice before moving to Poland and therefore Polish law would still be at odds with the provisions of EU law elaborated on by the CJEU in the commented Judgement.
Introduction of Same Sex Marriages?
Imagining that transcription is being made, with all the relevant consequences under Polish law, one can ask if this would be in line with Polish law, for instance the Constitution, that same sex marriages contracted abroad give full range of rights in Poland whereas no such similar marriage can be contracted back in Poland, by those who do not exercise their freedom of movement within the EU. This would be hard to imagine, even if perfectly in line with the EU law (see para. 61 Judgement).
The Polish Minister of Justice explained (what is obvious) that the Judgement does not “automatically” mean that now same sex-marriages would be possible to be contracted in Poland, but while discussing the possibility of the introduction of such marriages into Polish law noted that the “Constitution refers to the protection of opposite-sex marriages, but does not mention the impossibility of same-sex marriages” (see here). The question whether introduction of same sex unions would require a prior amendment to Article 18 of the Constitution (which states that “Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland” – see para. 11 Judgement) is also debated in Poland for years already with contradictory views being presented.
A comment made by the secretary of state (see link above) seems very practical: “we are on the same path that all other countries have taken, which ultimately introduced marriage equality anyway (…) introducing marriage equality is much easier than introducing civil partnerships or cohabitation agreements.” The latter comment refers to current attempts to regulate registered partnerships. Proposals for new laws on registered partnership (here and here) are being discussed at different stages of legislative process.
It seems that the Judgment might serve as catalyst to the current works and also to possibility that Poland skips the registered partnership phase and goes directly to introduction of same sex marriages.