All EU member states are obliged to respect the marriage rights ofsame-sex couples, Europe’s highest court has ruled, including countries without marriage equality legislation.
Tuesday’s far-reaching ruling by the European Court of Justice (ECJ) indirectly extends marriage equality across the bloc and creates agrave political dilemma for the divided coalition of Donald Tusk in Poland, where the case originated.
After Milosz Przepiórkowski married his husband Mateuzs Urban in Berlin in 2018, the civil authorities in their native Poland refused to enter their marriage in the civil register because Poland does not recognise same-sex unions.
“We felt like second- or third-class citizens, as strangers before the law, who were dependent, for instance, on the good will of a doctor to get information about each other in hospital,” said Mr Przepiórkowski to German national radio.
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Polish courts referred their complaint to to the ECJ in Luxembourg, asking whether the country’s stance respects or undermines EU rights of freedom of movement and respect for private and family life. The Luxembourg court ruled on Tuesday that while member states are not obliged to introduce marriage equality – a matter of domestic and not European law – they must recognise and apply rights conferred on its citizens by other EU member states.
Procedures relating to marriage, in particular transcription in a country’s civil register, must be equal for all, including same-sex couples.
“When they create a family life in a host member state, in particular by virtue of marriage, they must have the certainty to be able to pursue that family life upon returning to their member state of origin,” the ruling continued.
Poland’s approach to date “infringes not only the freedom to move and reside, but also the fundamental right to respect for private and family life”.
The court added that member states have a margin of discretion to choose the procedures for recognising such unions.
The ruling follows years of campaigning by LGBT+ couples in Poland and a European Court of Human Rights ruling a year ago that the lack of legal protection for a same-sex couple violated their fundamentalrights.
Poland’s prime minister, Mr Tusk won the 2023 election promising to legislate for same-sex marriage. However, disagreement within his coalition partners has stalled the issue. Poland’s nationalist conservative president, Karol Nawrocki, has promised to veto “any Bill that would undermine the constitutionally protected status of marriage”.
Under EU law, however, a ECJ ruling cannot be vetoed by a head of an EU member state.
Milosz Przepiórkowski, a Warsaw-based LGBT+ campaigner, is pessimistic that the ruling will soon bring concrete change or additional rights. “Such rights are for women and men,” he said, “because many [Polish]politicians ... interpret the constitution in a way that marriage is a relationship between a man and woman.”
More than half of the 27 member states in the EU recognise same-sex marriage. The Netherlands made history in 2001 by becoming the first nation in the world to do so. Most other member states, including Italy, Hungary, Latvia, Lithuania and Estonia, recognise same-sex civil unions. Poland, however, does not.
