Advocate General EU Court

Same-sex marriage, yes to recognition but no transcription requirement

On the other hand, the transcription obligation exists for member states that have no alternative solution for recognising the status of spouses

by Patrizia Maciocchi

4 April 2025

3' min read

Key points

Freedom of movement
The absence of alternative solutions
The Italian precedent

3' min read

A Member State must recognise themarriage between persons of thesame sex contracted in another Member State, but is not obliged totranscribe the marriage act in a civil status register. The transcription obligation exists instead when this is the only way to recognise same-sex marriage if the EU country does not provide for it. These are the conclusions of Attorney General Jean Richard de la Tour in relation to case C-713/23.

Freedom of movement

It was the Supreme Administrative Court of Poland, to which two Polish citizens, one of whom also holds German citizenship, had appealed - after having received a double "no" from the head of the civil status office in Warsaw and from the Administrative Court of Warsaw - regarding their request to have their marriage, celebrated in Berlin in 2018, recognised. The way was to be the transcription of the German act in the Polish civil status register. A step denied because neither the Polish Constitution nor internal laws provide for the possibility ofcoexistence of same-sex and different-sex marriages within the national system. The effects of the transcription of the German marriage thus violated the principles of the Polish legal system.

A refusal against which the spouses appealed because of the limits placed on theirfreedom of movement and establishment in EU countries due to the impossibility of proving their status as spouses. This obstacle is even greater in Poland, where it is particularly difficult to overcome administrative difficulties in the absence of alternatives to transcription. Apprehending the problem, the Polish Supreme Administrative Court referred a number of questions to the Court of Justice for a preliminary ruling. The Polish judges asked whether a Member State's legislation or practice, which allows neither the recognition of same-sex marriages nor the transcription of the marriage record in the civil-status register, is compatible with Union law.

In his opinion, Advocate General Jean Richard De la Tour recalls that the status of persons, including the rules on marriage, falls within the competence of the Member States. A discretion that does not, however, exempt them from compliance with Union law.

De la Tour emphasises that the absence of any recognition of a marriage bond established in another member state restricts the freedom of movement and residence of EU citizens, guaranteed to them by EU law. Moreover, the non-recognition of the bond may undermine the respect for private and family life, protected by Article 8 of the European Convention on Human Rights.

In aumento le unioni civili fra coppie dello stesso sesso. In calo separazioni e divorzi

The absence of alternative solutions

Therefore, it is up to Member States that do not provide for same-sex marriage to introduce appropriate procedures to ensure that marriages contracted in another EU country are publicised to third parties. Useful measures in order not to leave same-sex couples in a legal vacuum and to regulate fundamental aspects of their lives, relating to property, taxation or succession.

Each EU country is competent to define the modalities for the recognition of homosexual couples. A recognition that does not require the transcription of the foreign marriage record in a civil-status register, provided, however, that the marriage produces its effects even without this formality. This is not the case in Poland, given the absence of alternative solutions in Poland, such as the presentation of another official document that can be recognised by the internal authorities. For this reason, the Advocate General concludes that the marriage record must be transcribed in the state of the two applicants.

The Italian precedent

In his conclusions, which, however, are not binding on the EU Court, the Advocate General recalls the precedent of the Orlandi v. Italy case. And the similar refusal to register a marriage between two women. In that case, which preceded the introduction of the Cirinnà on civil unions law in 2016, the Strasbourg Court had sanctioned Italy for failing to strike a fair balance between competing interests, refraining from offering any protection to the union between the two applicants that could not be ignored.