29 lis, 2025
OPINION OF ADVOCATE GENERAL RICHARD DE LA TOUR delivered on 3 April 2025 (1) Case C‑713/23 Jakub Cupriak-Trojan, Mateusz Trojan v Wojewoda Mazowiecki other parties to the proceedings Prokurator Prokuratury Okręgowej w Warszawie, Prokurator Regionalny w Warszawie (Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland))
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OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 3 April 2025 (1)

Case C‑713/23

Jakub Cupriak-Trojan,

Mateusz Trojan

v

Wojewoda Mazowiecki

other parties to the proceedings

Prokurator Prokuratury Okręgowej w Warszawie,

Prokurator Regionalny w Warszawie

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland))

( Reference for a preliminary ruling – Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Marriage between two citizens of the Union of the same sex – Obligation on the part of the Member State of origin of those citizens to recognise and transcribe the marriage certificate drawn up in another Member State – National legislation or practice of the Member State of origin not permitting the recognition and entry in a civil register of a certificate of marriage between persons of the same sex )

I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union (2) and Article 2(2) of Directive 2004/38/EC. (3)

2.        It forms part of the Court’s line of case-law on the recognition of documents or decisions which alter a Union citizen’s identity, obtained in a host Member State, for the purposes of their entry in the civil registers of the Member State of origin. (4)

3.        The Court is now called upon to decide whether to extend to marriage certificates its case-law relating to the civil registration of a surname or change of gender identity obtained in another Member State, specifically where the Member State of origin of the person concerned, which is the Member State of his or her place of birth, does not recognise and even prohibits marriages between persons of the same sex. From a more general perspective, it is the question of the limits of the scope of the relevant EU law which is raised, since the rules on marriage and civil status fall within the competence of the Member States and EU law does not detract from that competence.

4.        As the positive law stands, I consider that the answer must be qualified. The Member State of origin of a Union citizen should recognise his or her marriage concluded in another Member State with a person of the same sex, even if the purpose is not to obtain from the first Member State a derived right of residence, or an identity card or even a passport. However, the obligation to enter a marriage certificate in the civil register should remain within the competence of each Member State. It would, therefore, be for them to decide whether such registration is the only way to meet the requirements of Article 7 of the Charter, interpreted in the light of the case-law of the European Court of Human Rights. (5)

II.    Legal framework

A.      European Union law

5.        Article 21(1) TFEU reads as follows:

‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’

6.        According to Article 7 of the Charter, entitled ‘Respect for private and family life’:

‘Everyone has the right to respect for his or her private and family life, home and communications.’

B.      Polish law

7.        Article 18 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) provides:

‘Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.’

8.        Article 47 of that constitution provides:

‘Everyone has the right to legal protection of his or her private and family life, dignity and reputation and the right to make decisions concerning his or her personal life.’

9.        Article 1(1) of the ustawa Kodeks rodzinny i opiekuńczy (Law establishing the Family and Guardianship Code) (6) of 25 February 1964 (consolidated version), (7) as amended, provides:

‘Marriage is contracted when a man and a woman, who are simultaneously present, declare before the Head of the Civil Registry Office that they are joined by the bonds of marriage.’

10.      Article 3 of the ustawa Prawo o aktach stanu cywilnego (Law on Civil Status Records) (8) of 28 November 2014 (consolidated version) (9) is worded as follows:

‘Civil status records constitute the sole proof of the facts recorded therein; they can be proven to be false only in legal proceedings.’

11.      According to Article 104 of that law:

‘1.      A foreign civil status document, constituting proof of an event and of its registration, may be transcribed into the civil register.

2.      Transcription consists in a faithful and literal transfer of the content of the foreign civil status document, both in linguistic and formal terms, without any change in the spelling of the first names and surnames of the persons designated on the foreign civil status document.

…

5.      Transcription shall be compulsory if the Polish citizen concerned by a foreign civil status document has a civil status record confirming previous events which was drawn up in Poland and if he or she requests that actions be performed with regard to the registration of civil status or applies for a Polish identity document or a PESEL number. [(10)]

…’

12.      Article 105(1) of that law provides:

‘The content of the foreign civil status document shall be transcribed into the civil register by means of a material and technical action; an entry concerning the transcription shall be made in the civil status record.’

13.      Article 107 of the Law on Civil Status Records provides:

‘The Head of the Civil Registry Office shall refuse to transcribe a document where:

…

(3)      transcription would be contrary to the fundamental principles of the legal order of the Republic of Poland.’

14.      Article 7 of the ustawa Prawo prywatne międzynarodowe (Law on Private International Law) (11) of 4 February 2011 (consolidated version) (12) is worded as follows:

‘Foreign law shall not apply if the effects of its application would be contrary to the fundamental principles of the legal order of the Republic of Poland.’

15.      Under Article 1138 of the ustawa Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) (13) of 17 November 1964 (consolidated version): (14)

‘Foreign public documents shall have the same probative value as Polish public documents. …’

III. The facts in the main proceedings and the question referred for a preliminary ruling

16.      Mr Jakub Cupriak-Trojan, a Polish and German national, and Mr Mateusz Trojan, a Polish national, were married in Berlin (Germany) on 6 June 2018 and currently reside in Poland. (15) After their marriage, Mr Cupriak-Trojan decided to add to his birth name, in accordance with German law, the birth name of his spouse. (16) Since the decision of the Kierownik Urzędu Stanu Cywilnego m.st. Warszawy (Head of the Civil Registry Office of Warsaw, Poland), taken at the request of Mr Cupriak-Trojan, his birth name has been identical in Poland.

17.      By decision of 8 August 2019, the Head of the Civil Registry Office of Warsaw, where their birth certificates are held, rejected the request by Mr Cupriak-Trojan and Mr Trojan for their German marriage certificate to be transcribed on the ground that Polish law does not provide for marriage between persons of the same sex. He considered that the transcription of such a certificate would be contrary to the fundamental principles of the Polish legal order.

18.      The Wojewoda Mazowiecki (Governor of Masovia Province, Poland), hearing an administrative appeal brought by Mr Cupriak-Trojan and Mr Trojan, confirmed that decision and also found that the German form of the marriage certificate was inconsistent with its Polish equivalent. He considered, first, that, in the event of transcription of a German marriage certificate, the Head of the Civil Registry Office would have to enter the first names and surnames of the two men, one of whom would be entered under the heading ‘woman’. Secondly, in Poland, since a marriage can be concluded only between a man and a woman, it would be unlawful to enter in the civil register two men as spouses.

19.      By judgment of 1 July 2020, the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland) dismissed the action brought by Mr Cupriak-Trojan and Mr Trojan on the ground, inter alia, that neither the Polish Constitution nor Polish law provides for the co-existence in national public policy of marriages between persons of the same sex and those between persons of different sexes. Accordingly, the effects of transcribing a foreign certificate of marriage between persons of the same sex would be contrary to the fundamental principles of the Polish legal order, within the meaning of Article 107(3) of the Law on Civil Status Records. That court also held that the refusal to transcribe the certificate did not infringe Articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (17) read in conjunction with Article 12 thereof and Article 21(1) TFEU, since the dispute in the main proceedings concerned a question of civil status unrelated to the right to move and reside within a Member State.

20.      Mr Cupriak-Trojan and Mr Trojan brought an appeal in cassation against that judgment before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), the referring court, in which they supported a request for a preliminary ruling on the interpretation of Article 7 and Article 21(1) of the Charter and Article 21 TFEU. Noting the needs expressed by the appellants, who are Union citizens, as to their intention to move and reside in Poland using the civil status resulting from their marriage in Germany, including the subsequent change of surname for one of them, and the absence of case-law of the Court of Justice on the transcription of marriage certificates, the referring court has doubts as to the interpretation to be given to Article 20(2)(a) and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter. That court states that, after examining the Court’s response, it will have to examine whether the absence in the Polish legislation of provisions providing for the possibility of registering a same-sex marriage precludes the obligation to recognise certain effects of the conclusion of such a marriage.

21.      In those circumstances the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of [the Charter] and Article 2(2) of Directive [2004/38], be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State [(18)] does not provide for same-sex marriage?’

22.      Mr Cupriak-Trojan and Mr Trojan, the Wojewoda Mazowiecki, the Prokurator Regionalny w Warszawie (Regional Prosecutor, Warsaw, Poland), the Prokurator Prokuratury Okręgowej w Warszawie (District Prosecutor, Warsaw, Poland), the Polish, German, Spanish, Hungarian and Netherlands Governments and the European Commission submitted written observations.

23.      At the hearing, which was held on 3 December 2024, those parties, with the exception of the Wojewoda Mazowiecki, presented oral arguments and responded to the questions for oral answer put by the Court.

IV.    Analysis

24.      By its question, the referring court asks, in essence, the Court whether Article 20 and Article 21(1) TFEU, read in the light of Article 7 of the Charter, (19) must be interpreted as precluding a Member State’s legislation or practice which permits neither the recognition of a Union citizen’s marriage, concluded lawfully in another Member State in the exercise of his or her freedom of movement and residence, nor the transcription of his or her marriage certificate into a civil register, on the ground that marriage between persons of the same sex is not provided for in the first Member State.

25.      The dispute concerns the recognition by the competent authorities in Poland of a marriage concluded in Germany between two Polish nationals, one of whom is also a German national, with a view to the transcription of the marriage certificate into a Polish civil register.

26.      Since they are lawfully married in a Member State other than the one which drew up their birth certificates, they may rely on the rights attaching to the status of citizen of the Union, (20) including vis-à-vis their Member State of origin. (21)

27.      As EU law currently stands, the status of persons, which includes the rules on marriage, is a matter falling within the competence of the Member States, and EU law does not affect that competence. However, in exercising that competence, each Member State must comply with EU law and, in particular, with the provisions of the FEU Treaty relating to the freedom of every citizen of the Union to move and reside within the territory of the Member States, by recognising for that purpose the status of persons established in another Member State in accordance with the law of that State. (22)

28.      By virtue of those principles, the case-law of the Court has developed at two different levels, so far as concerns the consequences to be drawn in civil status matters, depending on whether the context is the identity which a Union citizen has obtained or the ties which he or she has been able to establish, in a Member State other than the Member State of origin.

29.      Accordingly, in the case of marriage (23) or the establishment of parentage, (24) the Court has held that the ties resulting from marriage certificates or birth certificates drawn up in one Member State must be recognised for the sole purpose of exercising the rights which the persons concerned derive from EU law, (25) without any obligation on the part of other Member States to ensure that such recognition produces effects in terms of civil status. (26)

30.      By contrast, where the decision or document lawfully drawn up in a Member State other than the Member State of origin concerned the Union citizen’s identity details recorded on his or her birth certificate, the Court held that a Member State’s refusal to recognise and enter in a civil register the surname or first name or the change of gender identity obtained by a national of that Member State is liable to hinder the exercise of the right, enshrined in Article 21 TFEU, to move and reside freely within the territory of the Member States. (27)

31.      The Court’s case-law is based, in essence, on the finding that, ‘like a name, gender defines a person’s identity and personal status’, and that, consequently, the refusal in one Member State to recognise changes to them obtained by a Union citizen in another Member State is liable to cause ‘serious inconvenience’ for that citizen at administrative, professional and private levels, within the meaning of its case-law. (28)

32.      Following on from that case-law, I consider that the absence of any recognition in one Member State of the marital relationship established between two persons of the same sex registered in another Member State creates a restriction on the exercise of the right deriving from Article 21(1) TFEU. That restriction justifies the limitation laid down by the Court on the competence of the Member States in matters of personal status, even if, in my view, it is a question of the exercise of rights which, unlike in the cases which gave rise to the judgments in Coman and Pancharevo, are not given concrete expression in Directive 2004/38. (29) Union citizens, such as Mr Cupriak-Trojan and Mr Trojan, whose situation falls within the scope of EU law, (30) must be able to reside and move freely within the territory of the Member States as well as when they return to their Member State of origin, (31) while being recognised as being married persons.

33.      In that situation, the right to respect for private and family life guaranteed by Article 7 of the Charter is also fundamental.

34.      According to Article 52(3) of the Charter, the rights guaranteed in Article 7 of the Charter are to have the same meaning and scope as those guaranteed in Article 8 ECHR.

35.      With regard to the case-law of the European Court of Human Rights based on Article 8, in addition to that referred to in the judgment in Coman, (32) it should be noted that, in its judgment of 12 December 2023, Przybyszewska and Others v. Poland, (33) that court held – taking into account in particular its case-law as clarified and consolidated in the judgment of 17 January 2023, Fedotova and Others v. Russia (34) – that the Republic of Poland had overstepped its margin of appreciation and had failed to comply with its positive obligation to ensure that the applicants had a specific legal framework providing for the recognition and protection of their same-sex unions. That court concluded that that failure, which resulted in the applicants’ inability to regulate fundamental aspects of their lives, amounted to a breach of their right to respect for their private and family life. (35) In support of that decision, the European Court of Human Rights recalled that:

–        it had confirmed on several occasions that Article 8 ECHR was applicable under both its ‘private life’ and ‘family life’ aspects in cases concerning the alleged lack of legal recognition and/or protection for same-sex couples; (36)

–        it had held that the unavailability of a legal regime for recognition and protection of same-sex couples affects both the personal and the social identity of the applicants as homosexual people wishing to have their relationships as couples legitimised and protected by law, (37) and

–        Article 8 ECHR requires Member States to ensure legal recognition and protection of same-sex couples by putting in place a ‘specific legal framework’. (38)

36.      It follows that, within the European Union, it is for the Member States, where they do not provide for, or even prohibit, the institution of marriage between persons of the same sex in their national law, to establish appropriate procedures for the recognition of ties thus established in another Member State. It should be recalled that the Court of Justice has already held that such an obligation of recognition does not undermine the national identity or pose a threat to the public policy of the Member State concerned. (39)

37.      However, must that obligation to recognise marriages under EU law have the effect, on the same basis, namely Article 21 TFEU in particular, of requiring the Member State of origin to enter in a civil register a marriage certificate lawfully obtained by its national(s) in another Member State, where no national provision permits this, or national legislation even prohibits it, in equivalent circumstances? (40)

38.      I would point out that, as the Court’s case-law currently stands, the Member States’ obligations in terms of civil status relate only to the determination of a Union citizen’s identity. (41)

39.      The Court has held that confusion and inconvenience are liable to arise from a divergence between two surnames or first names used by the same person or two registered gender identities, since many daily actions, both in the public and in the private domains, require a person to provide evidence of his or her own identity (42) and also, in the case of a family, evidence of the nature of the links between different family members. (43) Therefore, in giving its ruling, the Court took into consideration a real risk, inherent in the difference between elements which are essential for identifying a person, of having to dispel doubts as to the person’s identity and the authenticity of the documents submitted or the veracity of their content. Those considerations were also taken into account in the case of a change in name of spouses following a marriage lawfully concluded by Union citizens in a Member State other than their Member State of origin, (44) in which that change was not recognised. Therefore, if the surname of one or both of the spouses were changed, difficulties could no longer arise, since the new name must be recognised in each of the Member States. (45)

40.      However, as regards proof of status as a married person, this cannot, for the purpose of creating rights, arise solely from the use of a common surname, where that is the case. Consequently, in what circumstances, under EU law, should a Member State be required to enter a marriage in a civil register, where its rules do not provide for the conclusion on its territory of a marriage between persons of the same sex or the registration of such a marriage when it has been concluded in another Member State, whether or not one of the married persons is a national of the first Member State? (46)

41.      Proof of status as a ‘married person’ enables the Union citizens concerned, in particular when they return to their Member States of origin, (47) to benefit from the effectiveness of the rights which they derive from Article 21(1) TFEU. (48) Accordingly, it is necessary, in my view, to determine at the outset the context in which the obligation of registration in a civil register must be assessed.

42.      With regard to the rights deriving from EU law and in particular from Directive 2004/38, (49) it should be pointed out that a Union citizen does not have to prove that he or she has the status of ‘married person’ in order to move freely within the territory of the Member States. (50) Only the spouse’s right of residence as a family member (51) may be impeded by non-recognition of that status. (52) In that situation, the Court held in the judgment in Coman that no obligation in terms of personal status could be imposed on the Member State of residence. (53) That decision, which concerned a spouse who was a third-country national, can be applied to the case of a Union citizen residing in a host Member State. Consequently, in that context, the choice of the manner of registering the foreign marriage certificate for the purposes of authorising residence falls within the exclusive competence of the Member States.

43.      With regard to the right of married persons of the same sex to lead a family life without encountering administrative obstacles, (54) I would point out that the question referred to the Court relates specifically to the exercise, by nationals of the Member State concerned, of rights provided for by national legislation. As confirmed at the hearing, the request by Mr Cupriak-Trojan and Mr Trojan to have their marriage certificate transcribed into the civil registers is intended to enable them to prove their status as ‘spouses’, specifically in Poland. (55)

44.      Although, according to the applicable Polish legislation, the transcription of a foreign marriage certificate is not mandatory for the completion of everyday administrative formalities (56) and that certificate, exempt from all legalisation if it has been drawn up in a Member State, must have the equivalent probative value as a Polish certificate, (57) those rules are not, in practice, applied by the competent authorities. Moreover, the Polish Government acknowledged in its written observations, supplemented at the hearing, that transcription of the marriage certificate is the only way of overcoming the difficulties invoked by same-sex couples married abroad, whatever their nationality.

45.      In the absence of alternative solutions in Poland, such as the submission of any other official document (58) which is acceptable to the Polish administrative services, that Member State is, therefore, under an obligation to transcribe the foreign marriage certificate into a civil register.

46.      However, by reason of that particular context and, a fortiori, in the light of the subject matter of the dispute in the main proceedings, which does not fall within the scope of Directive 2004/38, (59) the obligation to enter in the civil register a marriage certificate drawn up in a Member State cannot, in my view, be imposed on any other Member State if the marriage produces its effects without its being necessary to complete that formality.

47.      Moreover, finding that it is for each Member State to define the appropriate means of guaranteeing the right to respect for the private and family life of same-sex couples is consistent with the scope of the rights guaranteed by Article 8 ECHR, as defined by the European Court of Human Rights.

48.      In the judgment in Przybyszewska and Others v. Poland, with regard to the obligation to establish a ‘specific legal framework’, (60) that court provided the following clarifications:

–        Articles 8, 12 and 14 ECHR have to date not been interpreted as imposing a positive obligation on the States Parties to make marriage available to same-sex couples; (61)

–        the States Parties’ margin of appreciation is significantly reduced when it comes to affording same-sex couples the possibility of legal recognition and protection. It is more extensive with respect to the ‘choice of the means’ to be used in discharging their positive obligations inherent in Article 8 ECHR, (62) and

–        since the ECHR is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, it is important that the protection afforded by States Parties to same-sex couples should be adequate. In this connection, the European Court of Human Rights states that it has already had occasion to refer in certain judgments to aspects, in particular material (maintenance, taxation or inheritance) or moral (rights and duties in terms of mutual assistance), that are integral to life as a couple and would benefit from being regulated within a legal framework available to same-sex couples. (63)

49.      With regard to the absence, under Polish law, of any possibility of legal recognition and protection for same-sex couples, as found by the European Court of Human Rights, (64) that court pointed out that, in spite of some positive developments in the case-law in this field, same-sex partners are unable to regulate fundamental aspects of their life, such as those concerning property, maintenance, taxation, and inheritance, as an officially recognised couple. In the majority of situations, they are not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities. The European Court of Human Rights held that, in accordance with the principle of subsidiarity underpinning the ECHR, it is not for that court itself to determine the legal regime to be accorded to same-sex couples. (65)

50.      Specifically, as regards the registration of marriages between persons of the same sex contracted abroad, that court noted, in the judgment of 14 December 2017, Orlandi and Others v. Italy, (66) the lack of consensus in Europe, which confirms that the States must in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad. (67)

51.      In the judgment in Orlandi and Others v. Italy, the European Court of Human Rights held, in paragraph 210, that the Italian State could not reasonably disregard the situation of the applicants – who were persons of the same sex married under the law of a foreign State – which corresponded to a family life within the meaning of Article 8 ECHR, without offering them a means to safeguard their relationship. Since, until 2016, the Italian authorities had failed to recognise that situation or provide any form of protection to the applicants’ union, that court concluded that the Italian State had failed to strike a fair balance between any competing interests. (68) It held that that State had failed to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions, in violation of Article 8 ECHR. The State’s obligation was not extended to that of registering the marriage contracted abroad as a marriage in Italy, since that country does not recognise marriage between persons of the same sex.

52.      To the same effect, very recently, in the judgment in Formela and Others v. Poland, the European Court of Human Rights concluded that by refusing to register the applicants’ marriages under any form and failing to ensure that the applicants have a specific legal framework providing for recognition and protection of their unions, the Polish authorities have left them in a legal vacuum and have not provided for the core needs of recognition and protection of same-sex couples in a stable and committed relationship. (69)

53.      Consequently, I am of the view that the specific requirement to transcribe or, more generally, enter a certificate of marriage between persons of the same sex drawn up in a Member State in a civil register of the Member State of origin of the person(s) concerned cannot arise from EU law, as interpreted by the Court, (70) so as to grant a more extensive protection than that resulting from the case-law of the European Court of Human Rights. I therefore consider that the principle set out by that court should apply. I conclude from this that each Member State is competent to define the appropriate arrangements for ensuring that official recognition of same-sex couples confers an existence and a legitimacy on them vis-à-vis the outside world, to use the wording of Przybyszewska and Others v. Poland, (71) without being obliged to enter certificates of marriage between persons of the same sex in a civil register if such marriages are not provided for in the law of that Member State.

54.      Accordingly, in the present case, the transcription of the German marriage certificate into the Polish civil registers is required by virtue of specific national circumstances, as is clear from the observations of the Polish Government. (72) However, allowing both spouses to bear a usual surname could also, in some everyday situations, be a way of satisfying the requirement for the marriage to be made public with respect to third parties. The same applies to the option of producing in one Member State a marriage certificate drawn up in another Member State, which is translated and exempt from legalisation, on account of the probative value it is recognised as having in accordance with EU law. (73)

55.      It seems to me that drawing a distinction between the obligation to recognise a marriage between persons of the same sex lawfully concluded in the host Member State, on the one hand, and the obligation to enter the marriage certificate in a civil register in the Member State of origin, on the other hand, makes it possible to provide an interpretation of Article 21 TFEU which is in strict compliance with the division of competences between the European Union and the Member States. On that basis, that distinction is consistent with the case-law of the Court on civil status documents drawn up in one Member State, relating to same-sex couples or their children, which must produce their effects in another Member State that does not recognise such legal situations.

56.      A contrary approach could be based only on the finding that EU law recognises a freedom of movement and residence of Union citizens which may be exercised without limit so far as concerns personal status, with the exception of the prohibition of the abuse of rights. In particular, concerning marriage, the question will arise as to whether that solution will apply in situations in which the refusal to register the foreign marriage certificate is based on grounds other than the absence of a difference in the sex of the spouses. (74)

57.      In terms of civil status, the Court would, therefore, move from an approach based on the principle of free movement of a Union citizen that is limited to his or her identity, to an approach based solely on the right to respect for his or her family life. That right would become a principle incorporated into the right of free movement and residence and would be detached from any derived right, (75) combined, where appropriate, with the prohibition of discrimination on grounds of sexual orientation.

58.      I would note, first, that even in a situation in which the best interests of the child had to be paramount, the Court did not adopt that approach. (76)

59.      Secondly, it should be noted that, in matters of parenthood, the Commission has drawn up a proposal for a regulation (77) aimed at requiring Member States to recognise the parenthood of a child as established in another Member State for national purposes other than the exercise of rights deriving from EU law, in particular from provisions relating to freedom of movement.

60.      Accordingly, I propose that the Court should hold that the entry of a certificate of a marriage concluded in one Member State between two persons of the same sex, at least one of whom is a citizen of the Union, in a civil register of another Member State which does not recognise such a marriage, cannot be required under EU law, unless it is the only way a person can prove his or her status as a married person. In other words, the Member States’ obligation of civil registration linked to the freedom of movement and residence should, in my view, remain confined to cases in which there is uncertainty as to the identity of the Union citizen and that uncertainty can be dispelled by that means alone.

V.      Conclusion

61.      In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) as follows:

Article 20 and Article 21(1) TFEU, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union,

must be interpreted as not precluding legislation of the Member State of which a Union citizen is a national that does not permit the transcription into a civil register of his or her certificate of marriage to a person of the same sex, which was drawn up lawfully in another Member State, when exercising his or her freedom of movement and residence, where there are other means in the first Member State of ensuring that persons of the same sex are able to obtain recognition of their marriage by third parties.

By contrast, they preclude legislation or the practice of a Member State of which a Union citizen is a national that does not permit the recognition of his or her marriage – by any means or document that proves a marital relationship and the chosen surname of the married persons – which was lawfully concluded in another Member State with a person of the same sex, when exercising his or her freedom of movement and residence, on the ground that the first Member State does not provide for such a marriage.

1      Original language: French.

2      ‘The Charter’.

3      Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).

4      In the sense that the Member State of origin is the Member State of which the Union citizen is a national. See judgment of 5 June 2018, Coman and Others (C‑673/16, ‘the judgment in Coman’, EU:C:2018:385, paragraph 31).

5      ‘The ECtHR’.

6      Dz. U. of 1964, No 9, item 59.

7      Dz. U. of 2020, item 1359.

8      Dz. U. of 2014, item 1741.

9      Dz. U. of 2023, item 1378; ‘the Law on Civil Status Records’.

10      An identification number for natural persons who are Polish nationals.

11      Dz. U. of 2011, No 80, item 432.

12      Dz. U. of 2023, item 503.

13      Dz. U. of 1964, No 43, item 296.

14      Dz. U. of 2023, item 1550; ‘the Code of Civil Procedure’.

15      Although the referring court indicates that they live in Germany, the applicants, in their written observations and at the hearing, have stated that this is no longer the case. They are currently living and working in Poland and have been since December 2021.

16      At the hearing, Mr Cupriak-Trojan and the German Government stated that in Germany, this is the ‘usual surname’ which a spouse may bear by reason of his or her marriage, whereas in Poland, the birth name is changed either so as to be identical to that of the spouse or by the addition of a common name, which the Polish Government has confirmed.

17      Signed in Rome on 4 November 1950; ‘the ECHR’.

18      This is the Member State of origin, having regard to the definition of the term ‘host Member State’ in Article 2(3) of Directive 2004/38, namely ‘the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence’, and to the wording of Article 3(1) of that directive.

19      With reference to the judgment in Coman (paragraphs 17 and 28), I propose that the Court limit its examination to the existence of an obstacle to the exercise by the persons concerned of the right of free movement and residence with respect for their private and family life, rather than to the existence of discrimination.

20      On the basis of each of their nationalities, they enjoy the status of a Union citizen under Article 20(1) TFEU, which is destined to be the fundamental status of nationals of the Member States (see judgment of 4 October 2024, Mirin (C‑4/23, ‘the judgment in Mirin’, EU:C:2024:845, paragraphs 50 and 51 and the case-law cited). The fact that nationals of one Member State are lawfully resident in the territory of another Member State of which they are also nationals is irrelevant (see, to that effect, judgment of 8 June 2017, Freitag (C‑541/15, EU:C:2017:432, paragraph 34)).

21      See, to that effect, judgment in Mirin (paragraph 41 and the case-law cited).

22      See judgment in Coman (paragraphs 36 to 38) and, to the same effect, judgment in Mirin (paragraph 53 and the case-law cited).

23      See judgment in Coman (paragraph 45).

24      See judgment of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, ‘the judgment in Pancharevo’, EU:C:2021:1008, paragraphs 45 and 46).

25      The judgment in Coman concerned the recognition of a marriage between persons of the same sex for the purpose of granting to the spouse, a third-country national, a derived right of residence (paragraphs 45 and 46), based on Article 21 TFEU (paragraph 23) and granted under conditions analogous to those laid down by Directive 2004/38 (paragraph 25). The judgment in Pancharevo concerned the recognition of a parent-child relationship established with two mothers, both Union citizens, on their child’s birth certificate, for the purpose of obtaining an identity card or passport (see paragraphs 46, 49, 56 and 57).

26      In the judgment in Pancharevo, the Court set out the principle of the recognition by all Member States of a birth certificate drawn up in another Member State, albeit solely for the purpose of issuing an identity card or passport. No obligation in terms of national civil status was inferred from this, even though the child is a national of the Member State concerned (paragraphs 45 and 50). See also, for the application of that case-law to the case of a refusal by the Polish authorities to issue a travel document for a Polish child whose birth certificate, issued by the authorities of a Member State, designates as that child’s parents two persons of the same sex, on the ground that the prior transcription of that certificate was impossible, order of 24 June 2022, Rzecznik Praw Obywatelskich (C‑2/21, EU:C:2022:502, paragraphs 43, 44 and 52).

27      See judgment in Mirin (paragraphs 54, 55 and 57).

28      See judgment in Mirin (paragraph 55 and the case-law cited).

29      See point 29 of this Opinion.

30      See point 26 of this Opinion.

31      See judgment in Pancharevo (paragraph 47).

32      See paragraph 50.

33      CE:ECHR:2023:1212JUD001145417; ‘the judgment in Przybyszewska and Others v. Poland’, delivered by the First Section, composed of seven judges. The case which gave rise to that judgment, which arose out of the choice of same-sex couples to marry (§§ 4 and 106), concerned the absence in Polish law of any possibility of legal recognition and protection of the relationship between same-sex couples (§ 107). See, also to the same effect, judgment of 19 September 2024, Formela and Others v. Poland (CE:ECHR:2024:0919JUD005882812); ‘the judgment in Formela and Others v. Poland’, delivered by the same section composed of three judges. In the case which gave rise to that judgment, the applications of two same-sex couples concerned the failure to recognise their relationships as couples in Poland and their marriages contracted abroad (§ 10).

34      CE:ECHR:2023:0117JUD004079210.

35      See judgment in Przybyszewska and Others v. Poland (§§ 123 and 124).

36      See judgment in Przybyszewska and Others v. Poland (§ 39 and the case-law cited).

37      See judgment in Przybyszewska and Others v. Poland (§ 39 and the case-law cited).

38      See judgment in Przybyszewska and Others v. Poland (§§ 98 and 103 and the case-law cited).

39      See judgment in Coman(paragraph 46).

40      See judgment in Mirin (paragraph 57).

41      See points 30 and 31 of this Opinion.

42      See judgment in Mirin (paragraphs 54 to 56 and the case-law cited).

43      See judgments of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 52 and the case-law cited), and of 8 June 2017, Freitag (C‑541/15, EU:C:2017:432, paragraph 37 and the case-law cited).

44      See, to that effect, judgment of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 76). In that regard, so far as concerns the main proceedings, I would point out that the Polish Government explained at the hearing that, under national law, spouses have the option of changing their surname by substituting the surname of one of them for their birth name or by adding it to that name. According to the German Government, the same option exists under national law, but only for the usual name. The birth name is not changed. See, also, footnote 16 to this Opinion.

45      See point 30 of this Opinion. Accordingly, the change obtained by Mr Cupriak-Trojan in Poland should produce the same effects in Germany.

46      At the hearing, the Polish Government explained that a certificate of marriage between nationals of other Member States in which marriage between persons of the same sex is permitted cannot be registered in Poland, whereas the transcription of such a certificate is possible in the case of persons of different sexes.

47      See, to that effect, judgment in Coman (paragraphs 24, 32, 40 and 53).

48      See point 32 of this Opinion.

49      See point 29 of this Opinion.

50      See Article 4(1) of Directive 2004/38. In that regard, the Polish Government stated at the hearing that marriage is referred to neither on the passport nor on the national identity card. Moreover, I would point out that, since the present case concerns nationals of the Member State concerned, who are adults and hold travel documents which do not impede their freedom of movement, no right derived from Directive 2004/38 on that basis is relied upon. This can be compared with the situations at issue in the judgments in Coman and Pancharevo. See footnote 25 to this Opinion.

51      See judgment in Coman (paragraphs 33 to 35).

52      See, to that effect, judgment of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 73). It should be noted that this is not the case with respect to Mr Cupriak-Trojan and Mr Trojan, who live in Poland. As citizens of the Union, the freedom of movement and residence of neither of them is impeded in their State of origin (see, to that effect, judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 37), and order of 24 June 2022, Rzecznik Praw Obywatelskich (C‑2/21, EU:C:2022:502, paragraph 36 and the case-law cited).

53      See judgment in Coman (paragraphs 45 and 46). The Court thus held that the recognition of a marriage between persons of the same sex is limited to the sole purpose of granting a derived right of residence to a third-country national.

54      See points 32 and 35 of this Opinion.

55      The appellants argued that they cannot continue their family life in Poland under the same conditions as in Germany. They gave the following examples concerning Poland: first, from the beginning of March to the beginning of September 2022, while residing in Poland, Mr Cupriak-Trojan was unemployed and was not covered by public health insurance. During that period, Mr Trojan lived and worked in Poland. However, an employed spouse has the option of providing health insurance cover for a spouse who is not employed. Mr Trojan did not have that opportunity, since the appellants’ marriage had no effect in Poland, with the result that Mr Cupriak-Trojan was deprived of public health insurance throughout that period. Secondly, after their marriage in Germany, Mr Cupriak-Trojan requested that his surname be updated in the land register, in relation to the immovable property belonging to him in Poland. The court with jurisdiction over one of his properties rejected that request on the ground that a certificate of marriage between persons of the same sex could not be accepted. By contrast, another court granted that request in respect of a second property and entered his change of surname. See also the similar findings of the ECtHR in the judgment in Przybyszewska and Others v. Poland (§§ 102 and 108) and in the judgment in Formela and Others v. Poland (§ 24).

56      See Article 104(5) of the Law on Civil Status Records, cited in point 11 of this Opinion.

57      See Article 1138 of the Code of Civil Procedure, cited in point 15 of this Opinion, and Article 4 of Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 (OJ 2016 L 200, p. 1). See, also, Article 9 of that regulation and Annex IV thereto, which contains the multilingual standard form concerning marriage. That form facilitates translation of the public document relating to marriage. See, by way of comparison, Form B annexed to the International Commission on Civil Status (ICCS) Convention (No 16) on the issue of multilingual extracts from civil status records, signed in Vienna on 8 September 1976, to which the Republic of Poland has acceded.

58      See, by analogy, judgment in Pancharevo (paragraph 50).

59      See point 43 of this Opinion.

60      See point 35 of this Opinion.

61      See judgment in Przybyszewska and Others v. Poland (§ 99 and the case-law cited).

62      See judgment in Przybyszewska and Others v. Poland (§§ 100 and 101 and the case-law cited).

63      See judgment in Przybyszewska and Others v. Poland (§ 102 and the case-law cited).

64      See judgment in Przybyszewska and Others v. Poland (§ 105) and judgment in Formela and Others v. Poland (§ 27).

65      See judgment in Przybyszewska and Others v. Poland (§ 114). On the more extensive margin of appreciation available to the States Parties in determining the exact nature of the legal regime to be made available to same-sex couples, see judgment in Formela and Others v. Poland (§ 28).

66      CE:ECHR:2017:1214JUD002643112; ‘the judgment in Orlandi and Others v. Italy’ (§ 205). In the case which gave rise to that judgment, the pleas raised under Article 8 ECHR related primarily to the refusal in Italy to register a marriage contracted abroad, either as a marriage or under any other form, which deprived the persons concerned of any legal protection or associated rights (see § 191).

67      In paragraph 205 of the judgment in Orlandi and Others v. Italy, the ECtHR stated that the comparative law information available to it (limited to 27 countries where same-sex marriage was not permitted) showed that only 3 of those 27 States allowed such marriages to be registered. For further details, dating from July 2015, see that judgment in Orlandi and Others v. Italy (§ 113). This should be compared with the other elements of comparative law concerning the legal recognition of same-sex couples, though without further details concerning civil status, described in the judgment of the ECtHR of 17 January 2023, Fedotova and Others v. Russia (CE:ECHR:2023:0117JUD004079210, §§ 65 to 67), to which reference is made in the judgment in Przybyszewska and Others v. Poland (§ 31).

68      See, to the same effect, judgment in Formelaand Others v. Poland, which also concerns the lack of recognition and registration of certificates of marriages contracted abroad (§§ 10, 22, 25 and 29).

69      See judgment in Formelaand Others v. Poland (§ 26).

70      See points 27 to 31 of this Opinion.

71      See § 109 in fine.

72      See point 44 of this Opinion.

73      See, to that effect, point 44 of this Opinion. See also, by analogy, judgment of 8 December 2022, Caisse nationale d’assurance pension (C‑731/21, EU:C:2022:969, paragraphs 39 to 41 and the case-law cited).

74      Such as, for example, the capacity to marry, the dissolution of previous unions or the age difference between married persons, governed by provisions of private international law.

75      See, to the same effect, Opinion of Advocate General Kokott in Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, EU:C:2021:296, points 99 and 100).

76      See judgment in Pancharevo (paragraphs 45 and 50) and order of 24 June 2022, Rzecznik Praw Obywatelskich (C‑2/21, EU:C:2022:502, paragraphs 43, 44 and 52).

77      Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022) 695 final).

Source:

https://curia.europa.eu/juris/document/document_print.jsf?mode=lst&pageIndex=0&docid=297549&part=1&doclang=EN&text=&dir=&occ=first&cid=11503913