Cupriak-Trojan Case back in Polish Supreme Court

On 20 March 2026 the Supreme Administrative Court in Poland handed down the decision following Cupriak-Trojan case (C-713/23, commented on this blog within an on-line symposium here, here, here, here, here and here; and additionally here; Opinion of the AG de la Tour in this case was also commented on the blog – here).

Facts of the Case  

Mr Cupriak-Trojan (of Polish and German nationality) and Mr Trojan (of Polish nationality) were married in Berlin (Germany) in 2018. Even though they reside in Germany, they wished to go to Poland and reside there as a married couple.

For this purpose, the couple applied to administrative authority for the transcription of their marriage certificate into Polish civil status registry. Administrative authorities of two instances refused on the basis of public policy clause, which reads as follows: ‘The Head of the Civil Registry Office refuses transcription – if it would be contrary to the fundamental principles of the legal order of the Republic of Poland’. The administrative court of first instance confirmed these decisions, while Supreme Administrative Court stayed the proceedings and asked Court of Justice of the EU for a preliminary ruling on compatibility of such situation with EU law.

Court of Justice of the EU in Cupriak-Trojan

In its ruling in this case, CJEU decided that EU law (Article 20 and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) Charter of Fundamental Rights of the EU) precludes that a Member State (Poland) – on the ground that the national law does not provide for marriage between persons of the same sex – does not permit:

‘the recognition of a marriage between two same-sex nationals of that Member State concluded lawfully in the exercise of their freedom to move and reside within another Member State, in which they have created or strengthened a family life’ or

‘the transcription for that purpose of the marriage certificate (…) where that transcription is the only means provided for by that Member State for such recognition’.

Decision of the Supreme Administrative Court

By its decision the Supreme Administrative Court set aside the judgment of the administrative court of the first instance, as well as previous decisions of administrative authorities, and ordered the Head of the Civil Registry Office (Kierownik Urzędu Stanu Cywilnego) to transcribe the certificate of the marriage concluded by JC and MT in Berlin.

Reasoning of the Supreme Administrative Court

The court referred to the case law of the Court of Justice of the EU and EU law building on the ruling of the Court of Justice of the EU in this case. It also addressed few aspects of Polish legal system. They are as follows:

Public policy clause

As the refusal of transcription was justified by public policy clause, the court devoted quite an extensive part of the reasoning to this concept. It emphasised that the existing interpretation of the concept of ‘fundamental principles of the legal order’, established in administrative practice and adopted in case law, which served as a basis for refusal of transcription of foreign same-sex marriage certificates – as in the present case –  must be modified.

The court distinguished between (1) the possibility of entering into marriage in Poland, where marriage is a union between a man and a woman, as provided for in the Constitution and Family and Guardianship Code and (2) recognising a marriage entered into by persons of the same sex in another Member State in the exercise of the right provided for in Article 21(1) TFEU.

The court notes that Article 18 Constitution provides that ‘marriage as a union between a man and a woman, the family, motherhood and parenthood are under the protection and care’ of the state. This provision – in view of the court – assigns marriage a special position within the legal system and is intended to emphasise that the institution of marriage, understood as union between a man and a woman, is under the special protection and care of the state, just like the family, motherhood and parenthood. It is not possible to derive from this provision the view that it prohibits the recognition of other unions between two persons regardless of gender and that such other unions are not entitled to any protection and care.

The court underlined also that Article 18 cannot be interpreted in isolation from other provisions of the same Constitution on freedoms and rights, in particular Article 30 on the inherent and inalienable dignity of the human being constituting the source of human and civil rights and freedoms, Article 31(1) on legal protection, Article 32(1) on equality before the law and Article 47 on the right private and family life, which impose on public authorities the duty to respect and protect these rights and to guarantee, in accordance with their powers, the exercise of these rights. Consequently, Article 18 does not preclude the recognition of a same-sex marriage, legally contracted in another Member State, if spouses are exercising their freedom of movement, also because any other interpretation of that provision would conflict with Article 32(2) Constitution on the prohibition of discrimination in social life, including on grounds of sex and sexual orientation.

Technical difficulties

As transcription is challenging for administrative authority for technical reasons (explained in a post on the blog here), the court underlined that these do not have any legal force to determine the legal status of a person.

Effects of transcription

The court notes that the scope of the legal effects of the transcription in Poland, including the determination of the rights of same-sec unions in comparison with marriages contracted in accordance with Polish law, in the areas of public and private law (administrative, tax, civil, family, labour and social security law, health insurance, etc.) is a separate question. At the same time, the court explains that this question goes far beyond the scope of the review performed by the court in the present case.

Other means available

In view of the court it must be considered whether transcription is the only mean by which a same-sex marriage, legally contracted in another EU Member State, can be recognised in Poland. The court noted that pursuant to Article 1138 (Polish) Code of Civil Procedure, foreign official documents have the same evidentiary value as Polish official documents. This principle applies to civil status certificates drawn up abroad, even if such certificates have not been transcribed in Poland. The evidentiary value of a foreign certificate is equal to that of  a Polish one. Hence, in view of the court, the applicants can use in Poland their foreign marriage certificate on an equal footing with Polish civil status documents.

It seems that the court is fully aware that the above is ‘law in books’, while ‘law in action’ looks much differently and – in practice – the use of foreign certificates in Poland face numerous obstacles. As a result, the court arrives at the conclusion that indeed transcription under Polish law constitutes the only effective mean of recognising same-sex marriages, without causing undue difficulties or inconvenience to EU citizens in the exercise of their rights derived from  Article 21(1) TFEU.

Final comments

The judgment is of importance as it elaborates on the public policy clause and proposes a more human approach to the interpretation of Article 18 Constitution. Quite obviously, it does not solve the technical challenges with which the administration authority, ordered to proceed with transcription, will be faced. This challenge must be addressed by the legislator. Similarly, it does not elaborate on what the effects of transcription within the Polish legal order will be. One can only hope this will not have to be clarified in subsequent legal battles. It does not (as it cannot) answer  a more general question of institutionalising of same-sex unions in Poland. Again, this question must be addressed by the legislator.