A Member State must recognise same-sex marriages legally concluded in another European Union country without this obligation requiring it to introduce such marriages into domestic law, ruled the Court of Justice of the EU (CJEU) in a judgment handed down on Tuesday 25 November (case C-713/23).
Two homosexual Polish citizens, lawfully married in Germany, are challenging Poland’s refusal to transcribe their marriage certificate in the national civil register on the ground that Polish law does not allow marriage between persons of the same sex. Such a transcription would give rise to a Polish civil status record, detached from the original record, the probative value of which is the same as that of civil status records drawn up in Poland.
According to the CJEU, although marriage comes within the competence of the Member States, they are required to comply with EU law in exercising that competence, in particular the freedom to move within the territory of the Member States and the right to respect for private and family life enshrined in the EU Charter of Fundamental Rights. When they build a family life in a host country, in particular through marriage, European citizens must be certain of being able to continue it when they return to their country of origin, the Court emphasises.
Thus, in the Court’s view, refusal to recognise a same-sex marriage lawfully concluded into in another Member State may cause serious administrative, professional and private inconvenience, forcing the spouses to live as unmarried persons in the State of origin. Consequently, the Court has ruled that such a refusal is contrary to EU law.
The European Court emphasises that this obligation to recognise does not undermine the national identity or pose a threat to public policy, as it does not require that the State recognise same-sex marriage in its national law.
In addition, Member States enjoy a margin of discretion to choose the procedures for recognising such a marriage, with the transcription of a foreign marriage certificate being just one of the possible procedures. However, these procedures must not render such recognition excessively difficult or even discriminatory. This would be the case where national law does not provide for recognition equivalent to that granted to heterosexual couples.
See the judgment of the Court of Justice: https://aeur.eu/f/jnl (Original version in French by Mathieu Bion)