Helga Luku, PhD
researcher, University of Antwerp
Photo credit: Jakub Halun,
via Wikimedia
commons
On the 3rd of April 2025,
Advocate General (AG) Richard de la Tour delivered his Opinion
in C-713/23, Wojewoda Mazowiecki, concerning the recognition and
entry in a civil register of a foreign certificate of marriage between persons
of the same sex. While aiming to comply with the division of competences
between the EU and Member States, AG Richard de la Tour took a pragmatic
approach by opining that the EU law does not oblige Member States to register
foreign same-sex marriage certificates when they provide alternative means to
ensure recognition and protection of same-sex couples. However, where no
alternative form of recognition exists, Member States are obliged to register
foreign same-sex marriage certificates in their civil registry.
Facts of the case
In 2018, Mr Jakub
Cupriak-Trojan, a Polish and German national, and Mr Mateusz Trojan, a
Polish national, got married in Berlin. They currently reside in Poland. After
their marriage, Mr Cupriak-Trojan decided to add to his birth name, in
accordance with German law, the surname of his spouse. Upon the request of Mr
Cupriak-Trojani, the Head of Civil Registry Office of Warsaw reflected this
change in his birth name in Poland as well.
In 2019, the Head of the Civil
Registry Office of Warsaw, where the birth certificates are held, refused to transcribe
the German marriage certificate of Mr Cupriak-Trojan and Mr Trojan on
the grounds that Polish law does not allow same-sex marriages and the
transcription of such a certificate would be contrary to the fundamental principles
of the Polish legal order. This decision was upheld by other Polish authorities
and courts until the case reached the Supreme Administrative Court of Poland.
The latter subsequently referred
a preliminary question to the Court of Justice (ECJ) asking whether EU law
(Articles 20, 21 TFEU, Article 21(1) of the Charter of Fundamental Rights of
the EU and Directive 2004/38) should be interpreted as precluding Member States
from refusing to recognise a same-sex marriage and transcribe a foreign
marriage certificate into the national civil registry when it prevents those
persons from residing in that Member State as a married couple, on the ground
that the law of the host Member State does not provide for same-sex marriage?
Opinion of Advocate General Richard
de la Tour
The analysis of the AG Richard de
la Tour started in the classical way by pointing out that under the current state
of EU law, the status of persons is a matter falling within the competence of
the Member States and EU law does not affect that competence. However, when exercising that competence,
Member States must comply with EU law, particularly with the free movement
rights of Union citizens.
AG Richard de la Tour opined that
the absence of any recognition in one Member State of the marital relationship
established between two persons of the same sex registered in another Member
State creates a restriction on the exercise of the right deriving from
Article 21(1) TFEU. Thus, the applicants who are both Union citizens and
whose situation falls within the scope of EU law must be able to reside and move
freely within the territory of the Member States as well as when they return to
their Member State of origin, while being recognised as married persons.
Referring to Article 7 of the
Charter and its alignment with Article 8 ECHR, the AG invoked the case law of
the European Court of Human Rights (ECtHR). The latter has interpreted Article
8 ECHR as requiring Member States to ensure legal recognition and protection of
same-sex couples by putting in place a ‘specific legal framework’. While
putting that conclusion in the EU law context, the AG Richard de la Tour
reasoned that it is for the Member States, where they do not provide for, or
even prohibit, the institution of marriage between persons of the same sex in
their national law, to establish appropriate procedures for the
recognition of ties established in another Member State.
At this juncture, the AG framed an
important question: under what conditions, according to EU law, can a Member
State be required to register a same-sex marriage in its civil registry, even
if its national legal framework neither permits the conclusion of such
marriages on its territory nor provides for the registration of same-sex
marriages concluded in another Member State—regardless of whether one of the
spouses holds the nationality of the Member State in question?
In the view of the AG Richard de
la Tour, as long as Polish national law does not offer any alternative form of
recognition for same-sex couples, it is consequently obliged to transcribe the
foreign marriage certificate into its civil register. The obligation to
register a foreign marriage certificate does not apply where the marriage’s
effects are otherwise ensured, and it is for each Member State to define the appropriate
means of guaranteeing the right to respect for the private and family life of
same-sex couples.
In conclusion, AG Richard de la
Tour held that Articles 20 and 21(1) TFEU, in light of Article 7 of the
Charter, do not require a Member State to transcribe a same-sex marriage
certificate lawfully issued in another Member State, provided that alternative
forms of recognition are available. However, they preclude national laws or
practices that deny any form of recognition of such marriages solely because
same-sex marriage is not permitted under domestic law.
Comment
Once again, the Court of Justice
has been called to address the contentious issue of same-sex marriage recognition
within the European Union. In the present case, Wojewoda Mazowiecki (C-713/23),
the ECJ is asked whether a Member State must record in its civil registry a
same-sex marriage legally concluded abroad, even if national law does not recognise
such unions.
At first glance, the facts echo
those of Coman
in 2018 (on the application of free movement law to same sex marriages,
discussed here),
but the present case is different, as both applicants- a same-sex couple- are
Union citizens. As such, their right to move and reside freely within the EU is
not contingent upon the recognition of their marriage for the purpose of family
reunification under free movement provisions.
Notably, this element (i.e. both
of them being Union citizens) influenced the Opinion of AG Richard de la Tour,
which did not centre its analysis on free movement rights but rather anchored
its reasoning in the fundamental right to private and family life, guaranteed by
Article 7 of the Charter. When interpreting Article 7 of the Charter and
Article 8 of the ECHR, AG Richard de la Tour drew upon the case law of the ECtHR
-(Przybyszewska
and Others v. Poland, Fedotova
and Others v. Russia, Orlandi
and Others v. Italy and Formela
and Others v. Poland) – which has established that contracting States
are required to provide a “specific legal framework” for the
recognition and protection of same-sex unions. Nevertheless, the ECtHR does not
impose a direct obligation on Member States to recognise same-sex marriages.
A few key points in the Opinion
of AG Richard de la Tour are particularly significant for understanding the
broader legal implications of the case.
Firstly, the right of same-sex
spouses to lead a family life without encountering administrative obstacles
relates specifically to the exercise of rights provided for spouses by national
legislation (para. 43). Meanwhile, as regards rights deriving from EU law, a
Union citizen does not have to prove that he or she has the status of married
person in order to move and reside freely within the territory of the Member
States (para.42). Thus, the applicants’ approach may be interpreted as an
attempt to reinforce their reliance on free movement rights by invoking
additional protection and benefits granted to spouses under national law. This
understanding is further supported by their request during the hearing of the
case to have their marriage certificate transcribed into the civil register,
thereby enabling them to prove their status as spouses, specifically in Poland.
Rightfully, one may ask whether the issue of recognition of such a same-sex
marriage would have reached the ECJ if Polish law had provided an alternative form
of recognition, such as registering them as a civil union, given that the
latter would result in the downgrade of their relationship status and rights. AG
Richard de la Tour appears to overlook this issue in his Opinion.
Secondly, the Opinion of AG Richard
de la Tour in this case seems to reflect a fragmented approach towards the
recognition and registration of civil status elements. He interpreted the ECJ’s
case law as distinguishing between familial ties – such as marriage and
parenthood – which must be recognised only for the purpose of exercising
EU-derived rights, and identity-related matters – such as name or gender
changes – which, following the Mirin
judgment, must be recognised and entered into civil registers without such
a limitation (para. 28, 29, 30). The ECJ has held that ‘like a name, gender
defines a person’s identity and personal status’, and the refusal in one Member
State to recognise changes to them obtained by a Union citizen in another
Member State is liable to cause ‘serious inconvenience’ for that citizen at
administrative, professional and private levels. When comparing the ECJ’s
approach in the Mirin and Coman rulings, it can be implied that
familial statuses, like marriage and parenthood, go beyond the personal sphere
and may entail broader normative frameworks, including national conceptions of
family law. Consequently, Member States have been afforded greater discretion
in regulating and recognising these statuses within their legal systems. Nevertheless,
this fragmentation appears both ambiguous and somewhat inconsistent. Although both
identity-related matters (such as changes in name or gender) and familial
statuses (like marriage and parenthood) remain under the competence of Member
States, the non-recognition of either can create serious inconveniences for
Union citizens, potentially violating their rights under Article 21 TFEU.
Lastly, AG Richard de la Tour advocated
for a clear distinction between, on the one hand, the obligation of the Member
States to offer some form of recognition to same-sex couples (derived from the
ECtHR case law) and, on the other hand, the obligation to transcribe a foreign
same-sex marriage certificate into the civil register. He supports the latter
obligation only in situations where no alternative legal framework exists, as
is the case in Poland (para. 55). In his view, disregarding this distinction
and requiring automatic registration of such marriage certificates would lead
to an interpretation of freedom of movement and residence of Union citizens as
a right that can be exercised without limit in matters of personal status (para.56).
At this point, I concur with his viewpoint, as EU law does not provide for such
an expansive interpretation. According to him, it would imply a purely
fundamental rights-based approach detached from any link to EU free movement
provisions, and such a position would contravene Article 51(2) of the Charter. As
noted by the AG Richard de la Tour, the ECJ has refrained from adopting such an
expansive view even in cases when the best interests of the child were at stake
(para. 58). It is obvious that AG Richard de la Tour aimed to strike a balance
between fundamental rights of individuals and the division of competences
between EU and Member States- a fault line that has repeatedly tested the ECJ
and other EU bodies. However, his proposed solution raises questions, such as
whether the transcription of foreign marriage certificates implies full
recognition of same-sex marriage-which, in my view, it does- and, if so,
whether this could lead to reverse discrimination.
It now falls to the ECJ to deliver
its ruling and determine whether to adopt the Opinion of AG Richard de la Tour.