Movement Without Residence: The Limits of Cupriak-Trojan

This post was contributed by Dr. Ivo Hlaváček.

The case law on cross-border portability of personal status has developed quickly. Coman, Pancharevo, K.S., Mirin and now Cupriak-Trojan share a structural feature that has drawn less attention than their outcomes. In each, the status was acquired while the Union citizen was genuinely residing in another Member State. In Mirin the applicant had moved to the United Kingdom in 2008 and obtained legal recognition of his gender identity there; in Cupriak-Trojan the spouses married in Germany, were living there and intended to move to Poland as a married couple. Whether that residence element is load-bearing or merely incidental to the facts is a question the Court has not yet had to answer, and one now pending before it in a Latvian reference. It was raised more than once in this blog’s symposium on the judgment, and left open.

A dispute now pending in Slovakia may force the question. Two Slovak nationals married in Austria in 2020 and have sought transcription into the Special Registry, the single central register through which, under Slovak law, civil status events occurring abroad are entered in the domestic records. The Interior Ministry insists that the constitutional definition of marriage forecloses registration; the applicants and much of the domestic commentary reply that Cupriak-Trojan obliges Slovakia to register. Both sides treat that judgment as though it answered their case, although on the information currently available the residence element appears to be absent.

If that is right, the Slovak dispute is the first occasion on which the recognition duty is tested at its own boundary, and it shifts the centre of gravity from Union law to the Convention, where Slovakia faces a separate and longer-standing problem. It also shows why the two obligations must be kept analytically apart.

Three propositions, routinely conflated

Public debate collapses three distinct legal propositions into one. Neither Article 12 ECHR nor Article 9 of the Charter currently requires a State to open marriage to same-sex couples; the Strasbourg Court so held in Schalk and Kopf v Austria (2010, para. 63), and Article 9 of the Charter guarantees the right to marry in accordance with the national laws governing its exercise. Article 8 ECHR does require a legal framework affording such couples adequate recognition and protection, as the Grand Chamber confirmed in Fedotova and Others v Russia (2023), while stating expressly that the form of marriage is not required. Union law adds a third and specifically cross-border obligation: where the conditions of Article 21 TFEU are satisfied, the Member State of origin may be required to recognise a marriage lawfully concluded elsewhere, without altering its domestic rules on who may marry.

The Slovak dispute concerns the reach of the third obligation. Slovakia’s absence of any general recognition framework engages the second. Confusing them produces arguments that are rhetorically satisfying and legally vulnerable.

The facts, so far as they are public

The available public record points away from residence in Austria, although it does not conclusively establish where both applicants were resident in 2020. At the time of the marriage Metod Špaček headed the international law department of the Slovak Ministry of Foreign Affairs in Bratislava, a post he held from 2014 until January 2021, when he became head of the Office of the President. In a 2024 interview he stated that he had long lived in Bratislava and described the ceremony at Schloss Hof as a small wedding attended only by the couple and their witnesses because of pandemic restrictions. None of this is conclusive, since a post in Bratislava does not settle where a person is resident, and the point will ultimately have to be established in the proceedings. But nothing in the public record suggests that either applicant resided in Austria or established family life there.

It is nonetheless the decisive question, and it has gone almost unremarked in the Slovak debate.

What the Court held

In Cupriak-Trojan and Trojan v Wojewoda Mazowiecki (Grand Chamber, 25 November 2025, ECLI:EU:C:2025:917) the Polish authorities refused transcription because Polish law did not provide for same-sex marriage and treated the entry as contrary to the fundamental principles of the domestic legal order (para. 57). As both spouses were Union citizens, the Court proceeded under primary law rather than Directive 2004/38 (para. 37).

Refusal to recognise generates serious inconvenience of an administrative, professional and private nature (para. 51) and forces the couple to live as unmarried persons on return, despite a status lawfully established elsewhere (paras. 52 and 53). The legal basis is Articles 20 and 21 TFEU read with Articles 7 and 21(1) of the Charter (para. 63), and those provisions are directly effective, so a national court unable to reach a conforming interpretation must disapply conflicting national rules (para. 76).

What the Court did not say matters as much. Rules on marriage remain a national competence (para. 47), and the Court recalled Article 9 of the Charter (para. 59). The national identity objection under Article 4(2) TEU and the public policy objection were examined separately (paras. 58 to 60) and rejected: recognition does not affect the institution of marriage as defined by national law, and therefore threatens neither national identity nor public policy (paras. 61 and 62). The positive obligation under Article 8 ECHR, and Poland’s failure to discharge it, appear at para. 66.

The threshold: movement is not enough

The Court recorded at para. 20 that the spouses were residing in Germany and wished to move to Poland as a married couple. That was not incidental colour. The operative part is conditioned twice over. It applies to a marriage concluded in the exercise of freedom of movement and residence in another Member State in which the couple developed or consolidated a family life, and only where transcription is the sole means of recognition the State provides (para. 77). The first condition is not decorative, and the reasoning shows why.

At para. 44 the Court recalls that Article 21 return rights arise where family life was created or strengthened during genuine residence in the host Member State, citing Eind and O. and B.. In O. and B. (C-456/12), the Court treated as genuine residence only residence satisfying the conditions of Article 7 or Article 16 of Directive 2004/38. Short stays falling under Article 6, such as weekends or holidays, did not suffice even when considered cumulatively (paras. 56 and 59). Although that case concerned the derived residence rights of a third-country family member rather than recognition of marital status, its incorporation into the reasoning of Cupriak-Trojan makes genuine residence more than an incidental feature of the Polish facts.

Para 46 then extends the logic a fortiori, but the extension carries its own factual premise: it addresses two Union citizens who, as in the main proceedings, lead a common life in the host Member State and have married there under its law. If, as the available information suggests, the applicants travelled to Austria for the ceremony without residing there or leading a common family life there, they would not satisfy the premise on which para. 46 proceeds. That would place them outside the direct reasoning of Cupriak-Trojan. It would not answer the distinct question whether movement undertaken specifically to acquire a lawful civil status may itself engage Article 21.

That question is no longer merely hypothetical. In Case C-237/26 PMLP, lodged on 24 March 2026, the Latvian Supreme Court has asked whether Articles 20 and 21(1) TFEU, read with Articles 7 and 21(1) of the Charter, preclude a refusal to recognise a same-sex marriage concluded in another Member State where the spouses resided there neither before nor after the ceremony, but travelled there in order to marry and one of them had a close connection to that State. The reference places before the Court precisely the threshold left open by Cupriak-Trojan. No judgment has yet been delivered.

This threshold has already drawn attention on this blog. In her contribution to the symposium, Laima Vaigė read genuine residence as residence satisfying Article 7(1) of Directive 2004/38, that is, longer than three months, and noted that no equivalent requirement appears in the surname cases such as Garcia Avello and Freitag. While allowing that the condition works well enough as a device of private international law, she concluded that it does not stand on a strong footing in EU primary law, and on weaker ground still under the ECHR. I share her reading of what the test currently is, and her doubts about its normative basis are well taken. On the descriptive point I would go further than she does: in this judgment residence is doing work rather than merely describing the Polish facts, since para. 44 reaches its conclusion through O. and B., and the a fortiori extension in para. 46 carries its own premise of spouses who lead a common life in the host State. Whether that is a sound basis for distinguishing marriages from surnames is a separate question, and on that I think her scepticism is justified.

Alina Tryfonidou identified the same gap from the other side, asking whether the obligation extends to a couple who cross a border for the ceremony alone and then come home to ask for recognition. In December that was a hypothesis. Slovakia now presents it as a case, and PMLP places it before the Court.

The Charter cannot supply the missing connection. Under Article 51(1) it binds Member States only when they are implementing Union law. Its guarantees become applicable once the case falls within Article 21; they are not an independent route for bringing the case within it. The Court itself proceeded in that order, identifying an obstacle to free movement before turning to Articles 7 and 21(1).

Beyond the threshold

None of this weakens the analysis on the other side. If genuine residence were established, the Slovak position would be difficult to defend.

A State that does not permit same-sex marriage must establish adequate procedures for recognising one concluded abroad (para. 68). The choice of procedure lies with the Member States and transcription is only one option (paras. 69 and 70), but the chosen route must not render the exercise of Article 21 rights impossible or excessively difficult. The Court declined to accept that a foreign certificate carries equivalent probative force without transcription: absent registration, recognition depends on administrative discretion and produces divergent outcomes, which makes deriving rights from the document excessively difficult if not impossible (para. 71). Critically, the absence of a modality of recognition equivalent to that available to opposite-sex couples is itself discrimination under Article 21(1) of the Charter, and where a State provides a single procedure it must apply it without distinction (para. 75).

Slovakia would be exposed on these points. A marriage concluded abroad by a Slovak national enters the domestic records through the Special Registry under section 23 of Act No 154/1994 Coll. Slovakia has no registered partnership and no other express form of recognition for same-sex couples. On the available legislation and practice the Special Registry appears to be the only general mechanism, which is precisely the configuration para. 75 addresses, though whether it is the only effective route to recognition is a finding for the national court.

Anna Wysocka-Bar supplied the qualification that matters here. On the Polish statute book a foreign certificate already carried probative value equivalent to a domestic one; what made transcription the only means was that the competent authorities did not apply those rules in practice. The Slovak question is therefore not only what the legislation provides, but what an authority actually does when presented with an Austrian certificate and no entry in the Special Registry. That is an evidentiary question for the administrative court, and it is the one on which the second limb of the operative part turns.

The constitutional arguments would not assist. Article 41(1) of the Constitution, as amended in 2014, defines marriage as a unique union between a man and a woman, and Constitutional Act No 255/2025 Coll., in force since 1 November 2025, added a new Article 7(6) asserting sovereignty in matters of national identity including marriage, family and personal status. Article 41(1) defines marriage; it does not on its face regulate cross-border recognition of a status acquired under another State’s law. And a constitutional provision, however solemnly adopted, cannot displace an obligation flowing from directly effective primary law. The national identity defence was rejected on nearly identical facts.

The Convention problem stands on its own

Even if travel to Austria proves insufficient to engage Article 21, that would not dispose of the Convention issue. Tryfonidou suggested that the ruling would probably matter most in those Member States with no recognition regime of any kind, and Slovakia is one of the four she named. The Slovak case shows why that observation cuts in two directions: the absence of any domestic framework is what makes the registry the only route under Union law, and it is also an independent problem under the Convention whether or not Union law applies. Slovakia’s absence of a general framework for the recognition and protection of same-sex couples creates a serious and independent problem under Article 8 ECHR, irrespective of whether these applicants meet the Article 21 threshold. In Przybyszewska and Others v Poland (12 December 2023), cited by the Court of Justice at para. 66, the Strasbourg Court found a violation where no framework existed at all and couples married abroad were left in a legal vacuum.

Article 8 does not necessarily require the specific remedy the applicants have chosen. A registered partnership, a distinct mechanism for recognising a foreign personal status, or another regime could satisfy the obligation, provided it affords the couple adequate and effective recognition and protection. Not every nominal or thin partnership scheme would do. That points to a genuine asymmetry: the applicants may have a strong Convention argument against the legal vacuum and a weaker claim to the particular instrument they have selected. An administrative court deciding a single registry application is not obviously the forum in which a legislative deficit of this kind can be repaired.

Conclusion

The order of analysis matters more than the volume of argument. First, was there a relevant exercise of movement and residence under Article 21? Only then does the question of an effective and equivalent recognition procedure arise. If Article 21 does not apply, the question becomes what framework Article 8 ECHR requires.

The publicly available facts do not place the applicants within the direct reasoning of Cupriak-Trojan, and their claim to transcription under Article 21 therefore remains uncertain. It has been suggested in Slovakia that the Constitutional Court will settle the matter, but that is true only of the domestic constitutional layer; the authoritative reading of Article 21 TFEU belongs to the Court of Justice. With PMLP pending on the same threshold, a reference under Article 267 TFEU, or at least a stay pending the Latvian case, is the appropriate route rather than an autonomous domestic answer.

That uncertainty does not resolve Slovakia’s separate Convention problem. The State still lacks a general framework affording same-sex couples adequate legal recognition and protection. The cleanest response would be legislative rather than judicial, and it has two limbs. Slovakia needs a domestic framework through which same-sex couples can secure stable and effective legal protection, whether by registered partnership or an equivalent institution; a mechanism confined to statuses acquired abroad would leave untouched the position of couples who never left the country. It also needs a clear procedure for recognising personal status lawfully acquired in another Member State, effective, non-discriminatory and usable before public authorities and third parties. The first would answer the Convention obligation; the second would prevent renewed conflict with Article 21 whenever the free-movement threshold is met. Neither requires changing the domestic definition of marriage. Union law may not compel transcription on the presently available facts. Article 8 ECHR nevertheless requires an adequate and effective framework that Slovakia has yet to provide.