Poland must recognise same-sex marriage from abroad, says EU court

The European Union cannot force member states to introduce same-sex marriage. However, EU countries are now obliged to recognise marriages that are ‘shipped in’ from another member state, the European Court of Justice (ECJ) ruled this week.

The ruling stems from a case brought two years ago by two Polish men –one of whom also has German nationality– who married in Berlin in 2018. They want to live together as a married couple in Poland and asked for their German marriage certificate to be transferred to the Polish population registry. However, their request was rejected because Polish law does not know same-sex marriage.

The case ended up in the highest Polish administrative court. The court then asked the EU court whether the decision of the Polish authorities was compatible with EU law. On Tuesday, the court in Luxembourg ruled that it was not.

EU law guarantees all EU citizens the right to travel freely throughout the EU, to settle anywhere and to start a family – even after getting married abroad. The court ruled that Poland's refusal to recognise the same-sex marriage performed in Germany also significantly impedes the couple's life. The refusal “causes inconvenience on an administrative, professional and private level, forcing spouses to live unmarried in their own country.”

EU tourism

The court emphasises that Poland is not obliged to enshrine same-sex marriage in its own legislation. Marriage law remains a national competence. However, Poland must comply with EU law, which takes precedence over national law: every EU citizen has the right to freedom of movement and a normal family life, the court underlines. Poland must register foreign same-sex marriages in the population register in exactly the same way as marriages between heterosexual couples, without barriers and without any form of discrimination, the court ruled.

Evangelical

In practice, this means “that Member States cannot maintain their own definition of marriage if it conflicts with marriages contracted elsewhere in the EU,” writes the European Evangelical Alliance (EEA) in an analysis on Facebook. According to the umbrella organisation of Evangelical Christians, this creates a double standard: “National law can define marriage traditionally, but administrative systems must recognise marriages that have been concluded elsewhere under a different definition.”

The ruling also opens the door to a new kind of tourism, writes the Catholic German weekly newspaper Die Tagespost: gay couples from conservative countries travel to Member States where they can get married and then demand recognition in their own Member State.

According to Die Tagespost, this circumvents and undermines national law. The German magazine warns that if the EU continues to expand its influence in this area, there will be little room left for national identity, subsidiarity and democratic self-determination.

Equality

The court's ruling is in line with previous judgments. In 2018, the EU court already ruled that EU residents in a same-sex relationship have the right to live together in any Member State, even if that country does not recognise same-sex marriage itself. And in 2017, the European Court of Human Rights (ECtHR, in Strasbourg) reprimanded Italy because the authorities there refused to register same-sex couples married abroad.

Tuesday's ruling is also in line with the broader policy of the European Commission – the “cabinet” responsible for the day-to-day administration of the EU. Since 2019, there has been a special European Commissioner for Equality –currently Hadja Lahbib– whose job is to help promote the acceptance of LGBT people in the EU. In the LGBT equality strategy presented in October, Lahbib already made it clear that countries without same-sex marriage must recognise same-sex marriages from other EU Member States – which the court confirmed on Tuesday.

National identity

Sixteen countries in the EU now recognise same-sex marriage and another five recognise registered partnerships between same-sex couples. However, Bulgaria, Lithuania, Poland, Romania and Slovakia do not recognise same-sex couples in any legal form, but must now recognise same-sex marriages concluded in other Member States. This is despite the fact that the national constitution in Bulgaria, Croatia, Hungary, Lithuania, Slovakia and Poland explicitly define marriage as a union between a man and a woman.

None of the nine candidate countries for EU membership recognise same-sex marriage either. Only Montenegro recognises registered partnerships. If these countries wish to join the EU, they must comply with EU law. This means that same-sex couples must also be able to settle and register there, even if this directly conflicts with the constitutions of Moldova, Montenegro and Serbia.

The EU court's ruling threatens to further widen the gap between progressive Western European countries and conservative member states in the east. While Brussels is busy promoting the acceptance of LGBT people, the Slovak parliament passed a constitutional amendment in September that bans same-sex marriage. Hungarian parliamentarians voted in favour of a similar constitutional amendment in 2020.

Penalty

The court's ruling is also causing tension in Poland itself. The Polish Minister of Justice confirmed on Tuesday that the government will implement the ruling. This is striking, because in 2021, the Polish Constitutional Court ruled that the national constitution takes precedence over EU law. Under the previous government of the right-wing conservative Law and Justice Party (PiS), which ruled from 2015 to 2023, two rulings by the EU court were ignored for this reason, costing Poland tens of millions of euros in penalty payments.

But under the current liberal Prime Minister Donald Tusk –previously President of the European Council between 2014 and 2019– Poland is once again emphatically backing the EU line. Justice Minister Waldemar Żurek told TVP on Tuesday that the government "will have to implement this ruling in one way or another".

According to Żurek, the Polish constitution does not explicitly prohibit same-sex marriage. It does describe marriage as a union between a man and a woman and falls under the protection of the state. But Żurek believes that this does not preclude the constitution from legally recognising same-sex marriages concluded abroad.

Veto

It is still unclear how Tusk's broad coalition government –which consists of parties ranging from the progressive left to Christian conservatives– intends to implement the EU court's ruling. In October, the Christian Democratic coalition partner PSL blocked a proposal for a non-specific registered partnership that would also give same-sex couples limited rights. The party is expected to put the brakes on again if the coalition now wants to push through further liberalisation.

Polish President Karol Nawrocki, who is affiliated with the opposition PiS party, has reacted strongly against the EU court's ruling and says he will not bow “to the terror of rainbow rulings” that “completely destroy the family.” According to Nawrocki, the ruling is an “attempt to circumvent” the Polish constitution. “We do not want an unknown judge or official from Brussels to dictate to us what is legal and illegal. If we agree to this, it means that Poland is no longer a sovereign country.”

With his presidential veto, Nawrocki can block laws passed by parliament, as he has done before. However, if the government finds a way outside the law to recognise same-sex marriages concluded abroad, Nawrocki cannot stop it.

Rapidly

Meanwhile, support for more rights for homosexuals in Polish society is growing rapidly. A poll conducted two weeks ago shows that 62.1 per cent of Poles are in favour of introducing registered partnerships for homosexual couples. In 2024, that figure was 52 per cent, and in 2011, 25 per cent. Young people in particular are in favour of introducing registered partnerships for gay couples: 78.6 per cent of 18- to 25-year-olds support the idea.

Not every Pole will therefore view the EU court's ruling as something negative. Żurek also calls the ruling a “lesson in tolerance”. “Of course it won't be easy. We know that we still have a very conservative society. But I can already see significant changes,” he told TVP on Tuesday.