That EU Member States have “an obligation to recognize marriages between two EU citizens of the same sex, legally performed in another Member State.where they exercise freedom of movement and residence”. This is the latest decision of the European Court of Justicerelates to the case of two Polish citizens who married in Germany and requested that their marriage certificate be registered in the Polish civil registry so that it could be recognized.
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The competent authorities refused to do so because Polish law does not allow same-sex marriage: therefore, a national judge consulted with the Luxembourg Court, which ruled that the refusal was “contrary to Union law” as this undermines partners’ freedom to move and reside in the EU, as well as the right to respect for private and family life.
“Member States are therefore obliged to recognize, for the purpose of exercising the rights conferred by Union law, marital status legally acquired in another Member State”, reads the decision, underlining that this obligation “does not violate national identity or threaten public order” in the State of origin as it does not amount to the inclusion of same-sex marriage in domestic law. Apart from that, the decision continued, member countries have the freedom to choose the method for recognizing this union. However, if they only provide one for marriages performed in another Member State, such as the recording of a marriage certificate in the civil status register in the case of Poland, they are required to apply it also to marriages between persons of the same sex.
The court reminded that, although regulations relating to marriage fall within American competence, capital countries must still respect EU law when exercising this competence. In this case both partners enjoy freedom of movement and residence within the territory of the Member States and “the right to lead a normal family life during the exercise of this freedom, as well as after returning to their home Member State. Thus, when they establish a family life in the host Member State, especially as a result of marriage, they must be sure that they can continue it after returning to their Home State”. Therefore, refusal to recognize a contracted marriage and residence in another Member State “may cause serious administrative, professional and personal inconveniences, forcing the couple to live as unmarried in their home Member State”, which according to the Luxembourg Court makes it incompatible with the rights at issue and contrary to community law.
