Helga Luku, PhD
researcher, College of Antwerp
Photograph credit score: Jakub Halun,
through Wikimedia
commons
On the third of April 2025,
Advocate Normal (AG) Richard de la Tour delivered his Opinion
in C-713/23, Wojewoda Mazowiecki, in regards to the recognition and
entry in a civil register of a international certificates of marriage between individuals
of the identical intercourse. Whereas aiming to adjust to the division of competences
between the EU and Member States, AG Richard de la Tour took a practical
strategy by opining that the EU legislation doesn’t oblige Member States to register
international same-sex marriage certificates after they present different means to
guarantee recognition and safety of same-sex {couples}. Nevertheless, the place no
different type of recognition exists, Member States are obliged to register
international same-sex marriage certificates of their civil registry.
Info of the case
In 2018, Mr Jakub
Cupriak-Trojan, a Polish and German nationwide, and Mr Mateusz Trojan, a
Polish nationwide, acquired married in Berlin. They at the moment reside in Poland. After
their marriage, Mr Cupriak-Trojan determined so as to add to his beginning identify, in
accordance with German legislation, the surname of his partner. Upon the request of Mr
Cupriak-Trojani, the Head of Civil Registry Workplace of Warsaw mirrored this
change in his beginning identify in Poland as properly.
In 2019, the Head of the Civil
Registry Workplace of Warsaw, the place the beginning certificates are held, refused to transcribe
the German marriage certificates of Mr Cupriak-Trojan and Mr Trojan on
the grounds that Polish legislation doesn’t enable same-sex marriages and the
transcription of such a certificates can be opposite to the elemental ideas
of the Polish authorized order. This resolution was upheld by different Polish authorities
and courts till the case reached the Supreme Administrative Courtroom of Poland.
The latter subsequently referred
a preliminary query to the Courtroom of Justice (ECJ) asking whether or not EU legislation
(Articles 20, 21 TFEU, Article 21(1) of the Constitution of Elementary Rights of
the EU and Directive 2004/38) must be interpreted as precluding Member States
from refusing to recognise a same-sex marriage and transcribe a international
marriage certificates into the nationwide civil registry when it prevents these
individuals from residing in that Member State as a married couple, on the bottom
that the legislation of the host Member State doesn’t present for same-sex marriage?
Opinion of Advocate Normal Richard
de la Tour
The evaluation of the AG Richard de
la Tour began within the classical manner by declaring that below the present state
of EU legislation, the standing of individuals is a matter falling inside the competence of
the Member States and EU legislation doesn’t have an effect on that competence. Nevertheless, when exercising that competence,
Member States should adjust to EU legislation, notably with the free motion
rights of Union residents.
AG Richard de la Tour opined that
the absence of any recognition in a single Member State of the conjugal relationship
established between two individuals of the identical intercourse registered in one other Member
State creates a restriction on the train of the proper deriving from
Article 21(1) TFEU. Thus, the candidates who’re each Union residents and
whose scenario falls inside the scope of EU legislation should be capable of reside and transfer
freely inside the territory of the Member States in addition to after they return to
their Member State of origin, whereas being recognised as married individuals.
Referring to Article 7 of the
Constitution and its alignment with Article 8 ECHR, the AG invoked the case legislation of
the European Courtroom of Human Rights (ECtHR). The latter has interpreted Article
8 ECHR as requiring Member States to make sure authorized recognition and safety of
same-sex {couples} by putting in a ‘particular authorized framework’. Whereas
placing that conclusion within the EU legislation context, the AG Richard de la Tour
reasoned that it’s for the Member States, the place they don’t present for, or
even prohibit, the establishment of marriage between individuals of the identical intercourse in
their nationwide legislation, to ascertain acceptable procedures for the
recognition of ties established in one other Member State.
At this juncture, the AG framed an
necessary query: below what situations, in keeping with EU legislation, can a Member
State be required to register a same-sex marriage in its civil registry, even
if its nationwide authorized framework neither permits the conclusion of such
marriages on its territory nor supplies for the registration of same-sex
marriages concluded in one other Member State—no matter whether or not one of many
spouses holds the nationality of the Member State in query?
Within the view of the AG Richard de
la Tour, so long as Polish nationwide legislation doesn’t supply any different type of
recognition for same-sex {couples}, it’s consequently obliged to transcribe the
international marriage certificates into its civil register. The duty to
register a international marriage certificates doesn’t apply the place the wedding’s
results are in any other case ensured, and it’s for every Member State to outline the suitable
technique of guaranteeing the proper to respect for the non-public and household lifetime of
same-sex {couples}.
In conclusion, AG Richard de la
Tour held that Articles 20 and 21(1) TFEU, in mild of Article 7 of the
Constitution, don’t require a Member State to transcribe a same-sex marriage
certificates lawfully issued in one other Member State, supplied that different
types of recognition can be found. Nevertheless, they preclude nationwide legal guidelines or
practices that deny any type of recognition of such marriages solely as a result of
same-sex marriage is just not permitted below home legislation.
Remark
As soon as once more, the Courtroom of Justice
has been referred to as to deal with the contentious subject of same-sex marriage recognition
inside the European Union. Within the current case, Wojewoda Mazowiecki (C-713/23),
the ECJ is requested whether or not a Member State should report in its civil registry a
same-sex marriage legally concluded overseas, even when nationwide legislation doesn’t recognise
such unions.
At first look, the information echo
these of Coman
in 2018 (on the appliance of free motion legislation to identical intercourse marriages,
mentioned right here),
however the current case is totally different, as each applicants- a same-sex couple- are
Union residents. As such, their proper to maneuver and reside freely inside the EU is
not contingent upon the popularity of their marriage for the aim of household
reunification below free motion provisions.
Notably, this factor (i.e. each
of them being Union residents) influenced the Opinion of AG Richard de la Tour,
which didn’t centre its evaluation on free motion rights however moderately anchored
its reasoning within the basic proper to personal and household life, assured by
Article 7 of the Constitution. When decoding Article 7 of the Constitution and
Article 8 of the ECHR, AG Richard de la Tour drew upon the case legislation of the ECtHR
-(Przybyszewska
and Others v. Poland, Fedotova
and Others v. Russia, Orlandi
and Others v. Italy and Formela
and Others v. Poland) – which has established that contracting States
are required to offer a “particular authorized framework” for the
recognition and safety of same-sex unions. However, the ECtHR doesn’t
impose a direct obligation on Member States to recognise same-sex marriages.
Just a few key factors within the Opinion
of AG Richard de la Tour are notably vital for understanding the
broader authorized implications of the case.
Firstly, the proper of same-sex
spouses to steer a household life with out encountering administrative obstacles
relates particularly to the train of rights supplied for spouses by nationwide
laws (para. 43). In the meantime, as regards rights deriving from EU legislation, a
Union citizen doesn’t should show that she or he has the standing of married
individual in an effort to transfer and reside freely inside the territory of the Member
States (para.42). Thus, the candidates’ strategy could also be interpreted as an
try to strengthen their reliance on free motion rights by invoking
extra safety and advantages granted to spouses below nationwide legislation. This
understanding is additional supported by their request through the listening to of the
case to have their marriage certificates transcribed into the civil register,
thereby enabling them to show their standing as spouses, particularly in Poland.
Rightfully, one might ask whether or not the problem of recognition of such a same-sex
marriage would have reached the ECJ if Polish legislation had supplied an alternate kind
of recognition, corresponding to registering them as a civil union, on condition that the
latter would consequence within the downgrade of their relationship standing and rights. AG
Richard de la Tour seems to miss this subject in his Opinion.
Secondly, the Opinion of AG Richard
de la Tour on this case appears to replicate a fragmented strategy in direction of the
recognition and registration of civil standing components. He interpreted the ECJ’s
case legislation as distinguishing between familial ties – corresponding to marriage and
parenthood – which should be recognised just for the aim of exercising
EU-derived rights, and identity-related issues – corresponding to identify or gender
adjustments – which, following the Mirin
judgment, should be recognised and entered into civil registers with out such
a limitation (para. 28, 29, 30). The ECJ has held that ‘like a reputation, gender
defines an individual’s identification and private standing’, and the refusal in a single Member
State to recognise adjustments to them obtained by a Union citizen in one other
Member State is liable to trigger ‘critical inconvenience’ for that citizen at
administrative, skilled and personal ranges. When evaluating the ECJ’s
strategy within the Mirin and Coman rulings, it may be implied that
familial statuses, like marriage and parenthood, transcend the non-public sphere
and should entail broader normative frameworks, together with nationwide conceptions of
household legislation. Consequently, Member States have been afforded larger discretion
in regulating and recognising these statuses inside their authorized programs. However,
this fragmentation seems each ambiguous and considerably inconsistent. Though each
identity-related issues (corresponding to adjustments in identify or gender) and familial
statuses (like marriage and parenthood) stay below the competence of Member
States, the non-recognition of both can create critical inconveniences for
Union residents, doubtlessly violating their rights below Article 21 TFEU.
Lastly, AG Richard de la Tour advocated
for a transparent distinction between, on the one hand, the duty of the Member
States to supply some type of recognition to same-sex {couples} (derived from the
ECtHR case legislation) and, then again, the duty to transcribe a international
same-sex marriage certificates into the civil register. He helps the latter
obligation solely in conditions the place no different authorized framework exists, as
is the case in Poland (para. 55). In his view, disregarding this distinction
and requiring automated registration of such marriage certificates would lead
to an interpretation of freedom of motion and residence of Union residents as
a proper that may be exercised with out restrict in issues of private standing (para.56).
At this level, I concur along with his viewpoint, as EU legislation doesn’t present for such
an expansive interpretation. In keeping with him, it will indicate a purely
basic rights-based strategy indifferent from any hyperlink to EU free motion
provisions, and such a place would contravene Article 51(2) of the Constitution. As
famous by the AG Richard de la Tour, the ECJ has avoided adopting such an
expansive view even in instances when the perfect pursuits of the kid have been at stake
(para. 58). It’s apparent that AG Richard de la Tour aimed to strike a stability
between basic rights of people and the division of competences
between EU and Member States- a fault line that has repeatedly examined the ECJ
and different EU our bodies. Nevertheless, his proposed answer raises questions, corresponding to
whether or not the transcription of international marriage certificates implies full
recognition of same-sex marriage-which, in my opinion, it does- and, if that’s the case,
whether or not this might result in reverse discrimination.
It now falls to the ECJ to ship
its ruling and decide whether or not to undertake the Opinion of AG Richard de la Tour.
