The Court of Justice of the European Union has ruled: any marriage contracted in an EU country must be transcribed in all the others. However, Member States are not obliged to allow same-sex marriages on their soil.
It’s an important decision for LGBT+ rights within Europe. The Court of Justice of the European Union (CJEU) ruled, in a decision published on Tuesday, 25 November, that any marriage contracted in one of the Union’s countries, whether heterosexual or homosexual, must be recognized in all other Member States. This decision, which sets precedent, therefore obliges even countries that do not allow same-sex marriage to recognize those who were contracted elsewhere within the EU, including before this decision.
The CJEU had been seized of the case of two Poles who, having married in 2018 in Germany, wished to return to live in Poland. They therefore requested transcription of their marriage certificate so that it would be recognized on the civil status registers of their home country, but this request was refused on the grounds that Polish law does not recognize the marriage of same-sex couples. Not only does the law not authorize the marriage, but the Polish constitution itself provides, in its Article 18, that “The Republic of Poland guards and protects the marriage as the union of a woman and a man, the family, motherhood and the quality of parents”.
Towards a European civil partnership
This constitutional prohibition is contrary to European law, ruled the CJEU. “When they build a family life in a host Member State, notably through the effect of marriage, they must be able to continue it when they return to their State of origin”, writes the Court. This interpretation recalls a closely related ruling concerning same-sex parenting, issued in 2021.
Nevertheless, the States are not obliged to legalize the marriage of same-sex couples, the decision specifies, the Court recognizing that “Member States have a margin of appreciation to choose the modalities for recognizing such a marriage, the transcription of a foreign marriage certificate being only one of the possible modalities”.
The European Court nevertheless underscores the discriminatory nature of dissociating couples according to whether they are gay or straight: “These modalities must not (…) discriminate same-sex couples on the basis of their sexual orientation, which is the case when national law does not provide, for these couples, a modality of recognition equivalent to that granted to opposite-sex couples”. Thus, the Court acknowledges that it is not within its power to obligate a State to legalize marriage for all as long as its legislation provides some form of recognition for same-sex couples, effectively opening the way to a European civil partnership.
