CJEU Advocate General Questions Member States’ Authority Over Marriage

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• The Advocate General of the Court of Justice of the European Union (CJEU) has issued an opinion in a case involving a same-sex couple’s demand for their German marriage to be recognized as a marriage in Poland.

• Jean Richard de la Tour argues that Poland is obliged to transcribe their “marriage” into the civil registry.

• A CJEU Advocate General plays an advisory role, providing independent legal opinions on cases before the Court. While they do not issue binding decisions, their opinions can significantly influence the Court’s judgments.

Case Background

The case (C-713/23) concerns two Polish citizens (one of whom also holds German citizenship) who “married” in Berlin in 2018. They subsequently applied to have their German marriage certificate transcribed into the Polish civil registry. Their request was denied on the grounds that Polish law does not recognize same-sex marriage, and granting such a request would violate fundamental principles of the Polish legal order.

The two men challenged this refusal, arguing that they intended to live in Poland as legally recognized spouses. Poland’s Supreme Administrative Court (NSA) referred the matter to the Court of Justice of the European Union (CJEU) to determine whether an EU member state’s refusal to recognize or transcribe a same-sex marriage violates EU law.

Family Law Falls Within the Exclusive Competence of Member States

According to Article 9 of the Charter of Fundamental Rights of the European Union (CFR), annexed to the Treaty on the Functioning of the European Union (TFEU), “the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of those rights.” Article 81(3) of the TFEU further underscores this principle by exempting family law from the ordinary legislative procedure, instead requiring unanimity in the Council—effectively granting each member state a veto.

The Polish Constitution Prohibits Other Personal Arrangements Similar to Marriage

Article 18 of the Polish Constitution of 1997 explicitly grants special status to marriage and was designed to prevent the legal recognition of unions resembling marriage. During the drafting of the Constitution, this intent was clearly stated.

Following its enactment, both Poland’s Supreme Court and its Constitutional Tribunal repeatedly affirmed this interpretation. For instance, in a judgment dated December 6, 2007 (ref. IV CSK 301/07), the Polish Supreme Court ruled:

“Given the constitutional principle of marriage protection and the lack of legal grounds for considering the absence of legal regulation for extramarital relationships as a legislative gap, it is impermissible to apply matrimonial law (including community property and inheritance division) even by analogy to relationships other than marriage, which are characterized by personal and property ties.”

Similarly, in an October 17, 2012 opinion, the Supreme Court’s Office of Studies and Analyses reaffirmed that any legal framework analogous to marriage for same-sex couples would require a constitutional amendment.

The Advocate General’s Opinion Challenges Member States’ Sovereign Right to Define Family Law

The Advocate General’s opinion contradicts both EU and Polish legal principles. While acknowledging that matters of civil status, including marriage, fall within member states’ competence, he argues that “in exercising that competence, they are required to comply with EU law.” He claims that Poland’s refusal to recognize the German same-sex “marriage” restricts the couple’s EU-guaranteed freedom of movement and residence and may also infringe on their right to private and family life.

However, Poland’s regulations on residency do not impose for nationals of other EU countries any obstacles based on marriage law. The Law on Foreigners provides a legal basis for issuing residence permits, which are regularly granted to individuals intending to stay in Poland for over three months, including those in informal relationships with Polish citizens.

Regarding private and family life, the Advocate General referred to the December 12, 2023 ruling in Przybyszewska and Others v. Poland by the European Court of Human Rights (ECHR), which found that Poland had failed to fulfill its positive obligation to establish a legal framework for recognizing and protecting same-sex unions.

However, this ruling reflects judicial activism rather than the Convention’s text. The original post-war legal framework viewed the state as an extension of society, formed by families—where the family precedes the state. The modern reinterpretation reverses this, with the state redefining family structures. The ECHR actively seeks to lead this shift, despite the fact that only 49% of its “leading” judgments (those requiring legislative changes) have been implemented across Europe.

Moreover, the Strasbourg Court’s ruling does not necessarily mandate the institutionalization of same-sex unions in Poland. Instead, it suggests recognizing them ex lege—granting specific legal benefits in daily matters without redefining marriage or creating civil unions.

“From an EU legal perspective, the Advocate General’s opinion is an unfounded attempt to usurp power—potentially leading to a CJEU ruling that would force Poland to transcribe foreign same-sex marriage certificates,”
points out attorney Rafał Dorosiński of the Ordo Iuris Board.