EU Member States must recognize any marriage performed in another country of the Union, including those of same-sex couples, even if equal marriage is not part of their legislation. The European Court of Justice (CJEU) published a ruling this Tuesday in which “The refusal to recognize the marriage legally contracted by two citizens of the Union of the same sex in another Member State is contrary to Union Law. It not only violates the freedom of movement and residence, but also violates the fundamental right to respect for private and family life,” the CJEU concluded.
Although the court recognizes that the rules relating to marriage are the responsibility of the Member States, it also recalls that they “must respect Union law when exercising such jurisdiction.” The CJEU emphasizes that the imposed recognition obligation “does not threaten the national identity or threaten the public order of the Member State of origin of the spouses, since it does not imply that that State must contemplate marriage between two people of the same sex in its national law.”
The origin of this sentence is a complaint from a couple of Polish men who lived in Germany and who got married in 2018 in Berlin. One of the spouses also had German nationality. They got married with the idea of moving to Poland and residing there as married couples. However, when they requested the transcription of the certificate (the legal procedure for the recognition of the marriage) at the Polish Civil Registry, they saw how this was denied using the argument that Polish law does not authorize marriage between people of the same sex. The Registry considered that the petition violated fundamental principles of the Polish legal system.
That decision was appealed by the couple before the Supreme Court of Poland, which elevated it to the CJEU. “The refusal to recognize a marriage legally contracted in another Member State can cause serious administrative, professional and private inconveniences, forcing the spouses to live as singles in the Member State from which they originate,” the court explained in its ruling. To which he added that when a couple creates a family life in an EU country, “they must be certain of being able to continue it upon returning to their State of origin.”
Furthermore, the CJEU considers that Member States have discretion to choose the means of recognizing a homosexual marriage. “However, when a Member State chooses to establish a single means for the recognition of marriages [heterosexuales] contracted in another Member State, such as the transcription of the marriage certificate in the Civil Registry, this means must also apply to marriages between people of the same sex”, it explained in its ruling. As in Poland, the transcription “is the only means provided for a marriage contracted in another Member State to be effectively recognized by the administrative authorities, Poland is obliged to apply it to marriages contracted by people of the same sex”, the CJEU has stated.
the European court and to adopt measures in this regard. If a country fails to comply with a ruling, the CJEU can impose a fine on the offending state.
“This ruling represents a significant step towards the protection of same-sex couples throughout the EU, especially in those countries that still do not offer any legal recognition or protection, such as Bulgaria, Romania, Slovakia and Poland, in contradiction with their obligations derived from the European Convention on Human Rights, as well as in all EU countries in which same-sex couples do not have access to marriage,” they point out from ILGA-Europe. The international organization for the defense of LGTBI+ rights has celebrated the ruling.
The situation in the rest of the EU
“The decision of the CJEU reaffirms the essence of the European project where fundamental rights are not negotiable,” explains Óscar Rodríguez, member of foreign relations of the LGTBI+ State Federation (Felgtbi+): “Recognizing the marriage legally contracted by two citizens of the Union, without discriminating based on sexual orientation, is complying with the principle of equality that underpins the European construction from its origins.”
“I can’t help but remember what the approval of equal marriage meant for Spain two decades ago. A small change in the Civil Code that transformed the lives of thousands of families and, even more importantly, changed society’s view of them. Today, in our country, the idea that all families deserve the same recognition and the same protection is a deeply rooted value,” Rodríguez explains.
This year, Spain celebrated the approval by the Government of José Luis Rodríguez Zapatero (PSOE) that placed the country at the forefront of LGTBI+ rights: it was the third country in the world to develop this legislation. Since its legalization, more than 75,000 same-sex couples have married, according to official data. In September 2005, just a few months after approval, the PP filed an appeal before the Constitutional Court, arguing that this law “denaturalized” the institution of marriage. Seven years later, on November 6, 2012, the appeal was rejected. Currently, in Spain there are 14.1 same-sex marriages per 100,000 inhabitants, according to the INE. The communities with the highest proportion are the Canary Islands, the Balearic Islands and Madrid (all with 21.7). Those with the least, Castilla y León (7.5), Galicia (7.9) and Extremadura (8.1). Catalonia, with 13.4, is in the middle.
Currently, 17 of the 27 Member States recognize same-sex marriage. In others, alternative legislative figures are offered (such as de facto unions), while there are also territories that lack protection regulations, or even that put all kinds of obstacles to their recognition, such as . In the recent past, Poland, under the far-right PiS government, declared zones “free of LGBT ideology” in the country. The current Polish Executive, , has tried to promote the recognition of unions between people of the same sex, although the project has been delayed by the reluctance of some parties in its coalition.
