EU Court: no discrimination on gay marriages between Member States

A Member State is obliged to recognise a marriage between two Union citizens of the same sex, legally contracted in another Member State where they have exercised their freedom of movement and residence. This was decided by the Court of Justice of the EU.

The case concerns two Polish citizens, married in Germany, who had requested that their marriage certificate be transcribed in the Polish civil register in order for their marriage to be recognised in Poland. The competent authorities rejected their request, arguing that Polish law does not allow same-sex marriages.

The Court of Justice, in response to a question referred to it for a preliminary ruling by a national court, finds that the refusal to recognise a marriage between two citizens of the Union, lawfully contracted in another Member State where they have exercised their freedom of movement and residence, is contrary to European Union law in so far as it infringes that freedom and the right to respect for private and family life. Member States are therefore required to recognise, for the purposes of the exercise of the rights conferred by Union law, the civil status legally acquired in another Member State.

The Court emphasises, however, that this obligation does not require same-sex marriage to be introduced into national law. Moreover, Member States have a margin of appreciation in the choice of procedures for the recognition of such marriages. However, when a Member State chooses to provide for a single procedure for the recognition of marriages contracted in another Member State, such as the transcription of the marriage record in the civil register, it is obliged to apply that procedure also to marriages contracted between persons of the same sex.

The Court recalls that, although the rules relating to marriage fall within the competence of the Member States, the latter are bound to respect European Union law when exercising that competence. The spouses in question, as citizens of the Union, enjoy the freedom to move and reside in the territory of the Member States and the right to lead a normal family life in the exercise of that freedom and on their return to their Member State of origin. In particular, when they establish a family life in a host Member State, in particular by virtue of marriage, they must have the certainty of being able to continue that family life upon their return to their Member State of origin. The refusal to recognise a marriage between two citizens of the Union of the same sex, legally contracted in another Member State where they have exercised their freedom to move and reside, may cause serious administrative, professional and private inconveniences, forcing the spouses to live as unmarried persons in their Member State of origin. For that reason, the Court considers that such a refusal is contrary to European Union law. It infringes not only freedom of movement and residence, but also the fundamental right to respect for private and family life.