The highest instance of the Court of Justice of the European Union has ruled that a member state is obliged to recognize a same-sex marriage lawfully concluded in another member state, in order to ensure citizens’ freedom of movement and residence.
The European Court of Justice (ECJ) examined a dispute in which the Polish authorities refused to transfer/recognize in the Polish civil registry the marriage certificate of two Polish citizens (a same-sex couple) who had married in Germany.
In 2018, two Polish citizens who were living in Germany one of whom also held German citizenship married in Berlin. Wishing to move to Poland and live there as a married couple, they requested the transfer of their German marriage certificate into the Polish civil registry so that their marriage would be recognized in Poland. Their request was refused on the grounds that Polish law does not allow marriage between persons of the same sex.
The Court ruled that a member state (in this case Poland) is required to recognize a same-sex marriage lawfully concluded in another member state, in order to guarantee EU citizens’ freedom of movement and residence. This does not oblige the country to change its domestic legislation and legalize same-sex marriage at the national level; however, it does require recognition of such marriages for the purpose of exercising rights granted by the European Union.
In addition, member states have a margin of discretion (freedom of choice) to select the procedures for recognizing such marriages. Nevertheless, when a member state chooses a uniform procedure for recognizing marriages concluded in other member states such as transferring the marriage certificate into the civil registry it must apply this procedure equally to marriages between persons of the same sex.