Case C-713/23 has shed new light on a classic theme of EU law: the circulation of family status within the Union’s territory.

The proceedings before the Court of Justice of the European Union draw upon a request for a preliminary ruling submitted by the Polish Supreme Administrative Court in Warsaw. That court was seised by the applicants, Mr Trojan and Mr Cupriak-Trojan, a married couple of Polish nationality, in the context of a dispute with the Warsaw civil registry office concerning the transcription of a marriage certificate. More specifically, the proceedings concerned the decision of the head of the Warsaw civil registry office refusing the applicants’ request to have transcribed the marriage certificate relating to their marriage celebrated in Germany. The refusal was based on the argument that same-sex marriage is not recognised under national law and that transcription would therefore infringe the fundamental principles of the legal order of the Republic of Poland.

The referring court asked the Court of Justice to interpret Articles 20 and 21 TFEU on the right of Union citizens to move and reside freely, read in conjunction with Articles 7 and 21 of the Charter of Fundamental Rights regarding, respectively, the right to respect for private and family life and the prohibition of discrimination.

Reaffirming that the EU citizenship constitutes the fundamental status of nationals of the Member States, and reiterating the importance of the rights that flow from that status, the Court added that these rights include «the right to lead a normal family life, together with their family members, including their spouse, both in the host Member State and in the Member State of which they are nationals when they return to that Member State» (para. 43).

Considering the applicants’ situation – namely, a couple of Polish citizens who contracted marriage in Germany, a Member State in which they exercised their free movement rights and where they resided on a stable basis – the Court specified that the effet utile of the rights derived from Article 21 TFEU «a fortiori requires those citizens to have the certainty to be able to pursue in their Member State of origin the family life that they have created or strengthened in the host Member State, in particular by virtue of their marriage» (para. 46).

While the regulation of marriage falls within the competence of the Member States which remain free to allow or prohibit same-sex marriage, the Court recalled that, according to settled case-law, that competence must be exercised in compliance with EU law, including the rules on free movement of persons. Accordingly, the failure of the Member State of origin to recognise a marriage contracted in another Member State constitutes a restriction on free movement for those citizens whose transcription request is rejected. Indeed, the impossibility of obtaining recognition of a marriage contracted abroad may either deter citizens from exercising their free movement rights by moving to another Member State or discourage them from returning to their Member State of nationality, where the status acquired abroad would not be recognised. Such a restriction is allowed only if justified by objective considerations of general interest and proportionate to the legitimate aim pursued.

Although the referring court invoked the need to safeguard the fundamental principles of the Polish legal order, the judgment emphasises that recognition would serve only to allow the applicants to return to the Member State of which they are nationals, without in any way interfering with the substantive rules governing marriage in that legal system. The Court notes that recognition of marriages contracted abroad is necessary to protect private and family life – whose respect is guaranteed by Article 7 of the Charter – even for citizens who have exercised their free movement and residence rights.

While the obligation of recognition applies, Member States retain a certain margin of discretion as to the modalities. Although transcription in the civil registry – the sole procedure available under Polish law – is in principle compatible with EU law, it is limited to marriages between persons of the opposite sex. For this reason, the Court held that Polish law on transcription penalises same-sex couples thus infringing Article 21(1) of the Charter, which prohibits discrimination based, inter alia, on sexual orientation. Assessing the Polish legislation in light of the Charter, the Court clarified that Member States may, within their margin of discretion, establish a single procedure for recognising marriages contracted abroad, provided that the chosen procedure applies equally to same-sex marriages and marriages between persons of the opposite sex.

In conclusion, Articles 20 and 21 TFEU, read together with Articles 7 and 21 of the Charter, are interpreted as precluding the legislation of a Member State which, on the ground that national law does not contemplate same-sex marriage, refuses to recognise a marriage lawfully contracted by two of its nationals while exercising their free movement and residence rights in another Member State in which they developed and consolidated a family life.

 

(Comment by Valeria Salese)