All EU member states are obliged to respect the marriage rights of same-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) extends indirectly marriage equality across the bloc and creates a grave political dilemma for the divided coalition of Donald Tusk in Poland, where the case originated.
Meanwhile European conservative and populist leaders have seized on the ruling as proof of further interference in national affairs and cultural traditions by progressive European institutions.
The ruling has its origins in 2018, when two Polish men, married in Germany, were refused permission for their marriage certificate to be entered in the civil register in their native Poland, which does not recognise same-sex unions.
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Polish courts referred the case to the ECJ in Luxembourg, asking whether this stance respects or undermines EU rights of freedom of movement and respect for private and family life.
It ruled that procedures relating to marriage, in particular transcription in a country’s civil register, must be equal for all, including same-sex couples.
Member states are not obliged to introduce marriage equality – a matter of domestic and not European law – but must recognise and apply rights conferred on its citizens by other EU member states.
“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 for legal recognition and a series of cases at the CEJU and the European Court of Human Rights.
Poland’s prime minister, Mr Tusk, took office in December 2023 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.
In a speech in Prague on Monday, president Nawrocki said that “contrary to popular belief, Poland – including the conservative camp to which it proudly belongs – is not an enemy of the European Union”.
However, he added that “this is not the union of our dreams.”
In his speech on the future of the European Union in Prague, Mr Nawrocki proposed abolishing the head of the European Council, a role previously occupied by Mr Tusk.
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.
