Critical commentary on the judgment of the Supreme Administrative Court of 20 March 2026, II OSK 216/21

https://doi.org/10.63189/OKOR8891

The judgment of the Supreme Administrative Court of 20 March 2026 (II OSK 216/21)^[1], concerning the transcription of a foreign same-sex marriage certificate, must be viewed critically.^[2] This ruling is not limited to a one-off determination of the effects of a specific civil status document in a particular administrative case. In fact, it touches upon a number of issues of constitutional significance; however, given the scope of this paper, I shall focus on only three: firstly, the normative content of Article 18 of the Polish Constitution^[3]; secondly, the place of case law (or rather its absence) within the Polish system of sources of law; thirdly, the limits of pro-EU interpretation in a situation where its outcome leads to the weakening of the constitutionally established model of a legal institution. In my view, the Supreme Administrative Court, in seeking to ensure the effectiveness of European Union law following the judgment of the Court of Justice of the European Union of 25 November 2025 in Case C-713/23^[4], over-interpreted the EU court’s ruling, exceeded the permissible limits of interpretation and, in practice, led to a functional circumvention of Article 18 of the Polish Constitution.

The starting point must be to determine whether Article 18 of the Polish Constitution is purely axiological and programmatic in nature, or whether it contains a norm with a more specific constitutional significance. Contrary to positions that relativise its content (especially in recent years), the view has long prevailed in legal doctrine and case law that this provision not only mandates the protection of marriage but also constitutionally defines its model. It is no coincidence that the framers of the Constitution used the phrase “marriage as a union between a woman and a man”, placing it in the first chapter of the Constitution, and thus amongst the fundamental principles of the political system. The very location of the provision alone determines that this is not a mere reference to the legislature, but a norm of particular constitutional significance. This was aptly emphasised by Bogusław Banaszak, who pointed out that Article 18 of the Constitution adopted and enshrined the fundamental model of marriage as a union between a woman and a man, and restricted the legislature’s freedom to alter it^[5]. Similarly, Bartosz Zalewski convincingly demonstrated that a linguistic, systemic and functional interpretation of Article 18 leads to the conclusion that, under the Polish legal system, marriage can only be a union between a man and a woman entered into in the manner prescribed by law^[6].

The established case law of the Constitutional Tribunal follows the same line. In its judgment of 11 May 2005, issued in the context of a review of the constitutionality of the Accession Treaty, the Constitutional Tribunal clearly stated that Article 18 of the Constitution defines marriage as a union between a man and a woman and that it is precisely this characteristic which gives it a distinct constitutional status^[7]. In a subsequent judgment of 9 November 2010, the Tribunal once again emphasised the normative dimension of Article 18, pointing out that it is not merely an axiological declaration, but a provision establishing the constitutional status of specific values and institutions^[8]. It is therefore impossible to agree with an interpretation of Article 18 that would reduce it solely to an obligation to protect existing heterosexual marriages, leaving the way open for the administrative and judicial recognition within the national legal order of other forms of marriage under the name and with the effects proper to a constitutional marriage.

In analysing the case law of the Polish Constitutional Tribunal concerning marriage, I pointed out several years ago that the constitutional protection of marriage and the family is based on a set of mutually complementary provisions, but Article 18 plays a central role, as it expresses one of the fundamental principles of the system and establishes the special position of marriage within the hierarchy of constitutional values^[9]. Marriage, as a union between a man and a woman, also serves as a point of reference for the protection of the family, motherhood and parenthood, and the Constitutional Tribunal’s case law consistently interprets Article 18 as a constitutional norm, rather than merely a programmatic one. It is particularly valuable to emphasise that the Constitutional Tribunal explicitly links the protection under Article 18 with the obligation of public authorities to take measures that genuinely strengthen marriage, rather than neutralising its constitutional identity^[10].

Against this background, the case law of the Supreme Court takes on fundamental importance. In its judgment of 6 December 2013, the Supreme Court unequivocally stated that Article 18 of the Constitution precludes the existence of same-sex marriage within the Polish legal order, not only at the time of its conclusion but throughout its entire duration^[11]. More recent judicial statements and communications relating to cases concerning gender recognition have also emphasised that maintaining a situation in the legal system leading to the sanctioning of same-sex marriage would be incompatible with Article 18 of the Constitution^[12]. If, therefore, the Supreme Court explicitly derives from Article 18 a prohibition on maintaining same-sex marriage in the national legal system, it is difficult to accept the position that an administrative body, and subsequently an administrative court, may, on the basis of the institution of transcription, bring about the official entry of a same-sex marriage certificate into the Polish civil registry without thereby infringing Article 18 of the Constitution.

The legal nature of transcription is key to assessing the judgment under consideration. The argument that transcription is purely technical and record-keeping in nature does not stand up to scrutiny. The Civil Status Records Act treats transcription as a faithful transfer of a foreign record to the Polish register, rather than a purely informational recording of an event without legal consequences^[13]. The very structure of this institution demonstrates that it involves the formal ‘incorporation’ of a given event into the national registration system. It is rightly pointed out in the literature that transcription serves to stabilise civil status in legal transactions and paves the way for the use of a Polish civil status record as the basis for further legal and administrative proceedings^[14]. It is precisely for this reason that it cannot be maintained that the provision on transcription is a neutral technical instrument which can be applied entirely independently of the constitutional identity of the institution to which it relates.

It is at this point that the fundamental flaw in the Supreme Administrative Court’s reasoning becomes apparent. The Court based its reasoning on the assumption that, since the CJEU in Case C-713/23 recognised the refusal to recognise and transcribe a foreign marriage certificate as a problem from the perspective of EU law, the national obligation to transcribe must be derived through a pro-EU interpretation, even if national law does not provide for same-sex marriages. However, it follows from the CJEU’s earlier case-law, in particular the Coman judgment, that there is at most an obligation to recognise certain effects of a marriage contracted in another Member State for the purposes of exercising specific rights under EU law, in particular the freedom of movement, and not a general obligation to ‘transcribe’ a foreign marriage into the national civil status system as a marriage within the meaning of domestic law^[15]. In the Pancharevo case, too, the Court emphasised the need to ensure the effectiveness of EU law without prejudging that a Member State must fully transform its own family law or civil status system in accordance with a model adopted elsewhere^[16]. The Supreme Administrative Court, relying on C-713/23, thus went further than is apparent from the core of EU case law to date, as it effectively held that EU law justifies interference with the national model of marriage itself.

Such a ‘specific’ interpretation applied by the Supreme Administrative Court raises an even more serious problem: the relationship between case law and the sources of law. In the Polish constitutional system, the list of sources of generally applicable law is set out in Article 87 of the Polish Constitution and is exhaustive. It includes the Constitution, statutes, ratified international treaties and regulations. Court rulings (whether national, international or EU) are not listed therein. This does not, of course, mean that case law is legally irrelevant. It fulfils a fundamental interpretative, organising and clarifying function. However, it cannot be regarded as a separate source of generally applicable norms on a par with the acts listed in Article 87 of the Constitution. Otherwise, this would amount to circumventing both Article 87 itself and Article 7 of the Constitution, which requires public authorities to act on the basis of and within the limits of the law^[17].

It is precisely on this point that the judgment under discussion raises the most serious concerns. The Supreme Administrative Court did not confine itself to interpreting the applicable national law in the light of EU law, but effectively constructed a new legal norm: since the national law provides for transcription, and the CJEU requires the effectiveness of EU law, transcription must also be carried out in the case of a foreign same-sex marriage certificate, even though the Polish constitutional and statutory order does not recognise such a marriage. Such a result is not a mere interpretation. It is an example of the quasi-legislative use of case law. Lech Morawski rightly emphasised that the limit of interpretation is the legal text and its systemic context. Interpretation cannot lead to the establishment of a norm which the legislator has not expressed and which conflicts with a higher-ranking norm^[18]. Yet in this case, a pro-EU interpretation was used to achieve an effect which cannot be reconciled with the constitutionally defined model of the institution of marriage.

The counter-argument that the principle of the primacy of European Union law requires precisely this result is not convincing. Firstly, the CJEU itself does not assert in its case-law that Member States have completely lost the ability to invoke their constitutional identity and fundamental institutional arrangements. Secondly, EU law itself contains Article 4(2) TEU, which requires respect for the national identities of Member States, inextricably linked to their fundamental political and constitutional structures^[19]. EU legal doctrine has rightly pointed out that, following the Treaty of Lisbon, it is no longer possible to maintain a vision of ‘absolute’ primacy that completely disregards the fundamental elements of national constitutional identity^[20]. Armin von Bogdandy and Stephan Schill wrote explicitly about the need to overcome the concept of absolute primacy by taking into account Article 4(2) TEU^[21]. In turn, the German Federal Constitutional Court, in its Lisbon judgment of 30 June 2009, emphasised that European integration does not abolish a state’s constitutional identity and does not authorise a violation of its core^[22]. This is not a matter of simply transplanting German legal constructs into the Polish legal order, but rather of pointing out that European constitutional culture is founded on the premise that not every conflict between EU law and national law can be resolved by the courts ‘stretching’ the meanings of constitutional concepts.

In the Polish legal system, these limits are set out in Article 8(1) of the Constitution of the Republic of Poland. The Constitutional Tribunal has repeatedly emphasised that the Constitution retains supreme legal force, and that European integration does not lead to its losing this position^[23]. This means that even the obligation to interpret the law in a manner favourable to EU law cannot lead to an interpretation contra constitutionem. If it follows from Article 18 of the Constitution and the established case law of the Constitutional Tribunal and the Supreme Court that, within the Polish constitutional order, marriage is a union between a woman and a man, then the court cannot, by invoking the effectiveness of EU law, lead to such an application of the institution of transcription that would functionally recognise same-sex marriage in the country as ‘marriage’ in the civil registry. Such an outcome would require either an amendment to the Constitution or, at the very least, the statutory creation of a separate mechanism for recognising the specific effects of unions entered into abroad without interfering with the constitutional model of marriage.

It is precisely here that a broader systemic threat is most clearly revealed, which can be described as ‘precedentisation’ or ‘judicial substitution of sources of law’. In practice, this means a situation in which courts, by referring to axiology, international standards or supranational case law, begin not so much to apply existing law as to create new general norms, even though they have not been formally authorised to do so. This phenomenon has already been described by Alec Stone Sweet, who demonstrated that, in the context of European integration, the judiciary is increasingly becoming a co-creator of the normative order^[24]. However, whilst in the common law system the law-making role of precedent is a structural element of the system, in the Polish constitutional model the principle is the primacy of the normative act, not of judicial precedent. This makes it all the more dangerous to accept in practice that a single judgment – particularly one issued under the influence of a specific line of CJEU case law – may in effect neutralise the constitutionally established meaning of family law institutions.

In this sense, the judgment in question can be seen as a symptom of a broader phenomenon, which I refer to as ‘normative chaos’. This is not merely about an axiological dispute concerning same-sex marriage. It concerns the erosion of a clear hierarchy of sources of law and the shifting of the normative centre of gravity from the framers of the constitution and the legislature to the bodies applying the law. When a court, instead of reconstructing the norm from the Constitution and statute, begins to use case law as the primary basis for its decision, the system of sources of law loses its clarity, and the citizen is no longer certain whether they are bound primarily by statutory provisions or by dynamically changing lines of case law. From the perspective of legal safeguards, this is a highly dangerous phenomenon, as it undermines the predictability of the law and the democratic legitimacy of normative decisions.

This does not mean that the issue of protecting the rights of persons in same-sex relationships entered into abroad should be ignored. On the contrary, it can reasonably be argued that the legislator should develop mechanisms to ensure their protection to the extent that this is, first and foremost, consistent with the Polish Constitution, and only subsequently required by European Union law, particularly in the areas of freedom of movement, residence permits or certain derived rights. However, it is one thing to create statutory instruments for the implementation of EU obligations, and quite another to redefine the constitutional concept of marriage through the courts using the institution of transcription. The former falls within the framework of the rule of law. The latter leads to a weakening of the Constitution itself.

In view of the above, the conclusion of this commentary must therefore be unequivocal. The judgment of the Supreme Administrative Court of 20 March 2026 does not merit approval. It leads to a circumvention of Article 18 of the Polish Constitution by assigning to the institution of transcription a function that is incompatible with the constitutional model of marriage. At the same time, this judgment violates the principles of the supremacy of the Constitution and legality, as in practice it grants case law (primarily the case law of the CJEU) the role of a substitute source of generally binding norms. In a state based on the primacy of the Constitution and a closed system of sources of law, such a tendency should be regarded as constitutionally improper. The requirements arising from EU law can and should be implemented, but not at the cost of a judicial revision of the constitutionally defined identity of marriage.

^[1] See A. Warston, Między konstytucyjną ochroną małżeństwa a prawem unijnym: analiza podstaw pytania prejudycjalnego NSA w sprawie II OSK 216/21, „Przegląd Prawa i Administracji”, vol. 143, pp. 149–159. M. Matusiak-Frącczak, Komentarz do wyroku TSUE z 25.11.2025 r., C-713/23, „Europejski Przegląd Sądowy”, 2026, no. 2, https://assets.contenthub.wolterskluwer.com/api/public/content/M-Matusiak-Fracczak-Transkrypcja-aktow-malzenstwa-par-jednoplciowych-a-swoboda-przeplywu-osob-komentarz-do-wyroku-Trybunalu-Sprawiedliwosci-z-25-11-2025-C-713-23-Cupriak-Trojan-and-Trojan?v=40a2d8f8.

^[2] At the time of writing this commentary, the full written grounds for the Supreme Administrative Court’s judgment of 20 March 2026 had not yet been published; consequently, this summary of the grounds for the decision is based on the operative part of the judgment and the available information regarding the oral grounds for the decision.

^[3] Dz.U. Nr 78, poz. 483 z późn. zm.

^[4] Judgment of the CJEU of 25 November 2025, C-713/23, Jakub Cupriak-Trojan and Mateusz Trojan v the Governor of the Mazovia Province.

^[5] B. Banaszak, Konstytucyjna regulacja małżeństwa a prawo do zawarcia małżeństwa, [w:] Prawa i wolności jednostki w Konstytucji RP, M. Jabłoński, S. Jarosz-Żukowska (eds.), vol. I, Wrocław 2014, p. 81 et seq.

^[6] B. Zalewski, Kilka uwag na temat wykładni i znaczenia art. 18 Konstytucji RP, “The Legal Culture” 2018, No. 1, p. 97 et seq.

^[7] Constitutional Tribunal judgment of 11 May 2005, K 18/04, OTK-A 2005, No. 5, item 49.

^[8] Judgment of the Constitutional Tribunal of 9 November 2010, SK 10/08, OTK-A 2010, No. 9, item 94.

^[9] P. Sobczyk, Małżeństwo i rodzina w orzeczeniach Trybunału Konstytucyjnego. Art. 18, 48 i 71 Konstytucji RP, [w:] Małżeństwo i rodzina w prawie kanonicznym, polskim i międzynarodowym, T. Płoski, J. Krzywkowska (eds.), Olsztyn 2008, pp. 381–393.

^[10] P. Sobczyk, Małżeństwo i rodzina…, pp. 382–386.

^[11] Supreme Court judgment of 6 December 2013, I CSK 146/13.

^[12] See discussion of the Supreme Court’s case law: Office of the Ombudsman, Uchwała Izby Cywilnej SN: postępowania w sprawach uzgodnienia płci, 5 March 2025.

^[13] Ustawa z dnia 28.11.2014 r. – Prawo o aktach stanu cywilnego, consolidated text: Dz.U. 2023, item 1378; see also the CJEU order of 24 June 2021, C-2/21, concerning Polish regulations on transcription.

^[14] M. Węglarz, Niedopuszczalność transkrypcji zagranicznych aktów małżeństwa osób tej samej płci a prawo UE i Konstytucja RP, ‘The Legal Culture’ 2021, No. 2.

^[15] Judgment of the CJEU of 5 June 2018, C-673/16, Coman.

^[16] Judgment of the CJEU of 14 December 2021, C-490/20, V.M.A. v. Stolichna obshtina, rayon Pancharevo; see also the commentary: G. Marinkás, Some Remarks on the CJEU’s Pancharevo Decision With Special Regard to National Identity and the Primacy of EU Law, 2023.

^[17] See further L. Garlicki, Polskie prawo konstytucyjne. Zarys wykładu, Warszawa 2018, pp. 121 et seq.; Konstytucja RP. Tom I. Komentarz. Art. 1–86. Volume I. Commentary. Articles 1–86, M. Safjan, L. Bosek (eds.), Warsaw 2016, commentary on Articles 8.

^[18] L. Morawski, Zasady wykładni prawa, Toruń 2010, pp. 73 et seq., 301 et seq.

^[19] Article 4(2) TEU.

^[20] See generally A. von Bogdandy, S. Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’, Common Market Law Review 2011, vol. 48, no. 5, pp. 1417–1454.

^[21] A. von Bogdandy, S. Schill, Overcoming Absolute…, pp. 1417–1454.

^[22] BVerfG, judgment of 30 June 2009, 2 BvE 2/08 (Lisbon Judgment).

^[23] Constitutional Tribunal judgment of 11 May 2005, K 18/04; cf. also the established case law of the Constitutional Tribunal concerning the supremacy of the Constitution in the domestic legal order.

^[24] A. Stone Sweet, The Judicial Construction of Europe, Oxford 2004, p. 1 et seq.