EU Law vs. National Identity: The Polish Dimension of the CJEU’s Judgment in Case C-713/23

https://doi.org/10.63189/EMIS9092

In its judgment in Case C-713/23, the CJEU pointed out that Article 20 and Article 21(1) TFEU, read in the light of Articles 7 and 21(1) of the Charter of Fundamental Rights of the European Union, preclude legislation of a Member State which, because the law of that Member State does not permit same-sex marriages,  do not authorise the recognition of a marriage lawfully contracted by two nationals of the same sex of that Member State in the course of exercising their freedom of movement and residence in another Member State in which they have developed or strengthened their family life, or the transcription for that purpose of the marriage certificate in the civil status register of that first Member State;  where that transcription is the only means provided for by that State to enable such recognition.

The CJEU's judgment is another ruling of this type issued by this court in a situation where nationals of a Member State, within the framework of freedom of movement and residence, enter into another Member State in which, in accordance with the national law of that State, they marry persons of the same sex and then seek its recognition in their Member State of origin.  Of course, the authorities of the country of origin refuse to transcribe such a marriage, because their legal system recognizes only a relationship between a woman and a man as marriage. Therefore, there is a problem of recognizing such a relationship on the basis of rights under EU law, in particular the freedom of movement of persons and the right of residence.

It should be emphasized that the issue of recognition of same-sex marital relations has already been the subject of CJEU case-law. Namely, in the Coman case of C-673/16 concerning Romanian legislation. However, the Court ruled in this case on the issue of the recognition of marriage between persons of the same sex in the country of origin, having regard to the provisions of Article 7(1) of Directive 2004/38/EC 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. It inferred from those provisions that, where a national of the Member State of origin has developed or strengthened a family life on that occasion with a third-country national of the same sex with whom he has entered into a marriage lawfully entered into in the host Member State, Article 21(1) TFEU must be interpreted as precluding the  the competent authorities of the Member State of which the Union citizen is a national should refuse the right of residence of the third-country national concerned on the ground that the law of that Member State does not provide for same-sex marriage.

According to the Romanian Civil Code, i.e. its Article 277 paragraphs 1, 2 and 4 "1. It is forbidden to marry people of the same sex. 2. Same-sex marriages contracted abroad by both Romanian citizens and nationals of other countries shall not be recognised in Romania. […] 4. The provisions of law relating to freedom of movement within the territory of Romania by nationals of Member States of the European Union and the European Economic Area shall apply.'

However, in the Coman judgment, the CJEU clearly indicated that the recognition of marital relations by the country of origin serves only to grant a derived right of residence to a third-country national with whom the EU citizen has married. He also separated issues concerning the rights of the state. By stating clearly that 'it is true that matters of marital status and the rules on marriage attaching to it are a matter which falls within the competence of the Member States and EU law does not infringe that competence (see, to that effect, judgments of 2 October 2003, Garcia Avello, C-148/02, EU:C:2003:539, paragraph 25; of 1 April 2008, Maruko, C-267/06, EU:C:2008:179, paragraph 59; and of 14 October 2008, Grunkin and Paul, C-353/06, EU:C:2008:559, paragraph 16). As the Court went on to hold, the Member States are therefore free to introduce same-sex marriage (judgment of 24 November 2016, Parris, C-443/15, EU:C:2016:897, paragraph 59).

Analysing the refusal to recognise marital ties on the basis of freedom of movement, the CJEU pointed out that the consequence of such a refusal would be to deprive the EU citizen of the possibility of returning to the Member State of which he or she is a national, together with his or her spouse.

Therefore, as it seems, the CJEU clearly indicated in this ruling that the recognition of marital relations results from the exercise of EU rights – and the spouse of an EU citizen obtaining the right to reside in the spouse's country of origin. On the other hand, issues concerning the definition of marriage and marital status have been left to the competence of the Member States. The Court therefore admitted that the EU does not have competence in this area because it has not been delegated in accordance with the principle of conferral under Article 5(1) and (2) of the Treaty on European Union. It should be emphasized that the Treaties provide for the principle of presumption of competence of the Member States, which means that competences not granted in the EU Treaties belong to the Member States. Thus, in the Coman judgment, the CJEU clearly indicated that the civil status of a person remains outside the competences of the EU - including outside the competences of the CJEU.

Thus, in the currently analysed judgment of the CJEU issued in case C-713/23 – by obliging the Member State, Poland to transcribe a foreign marriage certificate of persons of the same sex – it indisputably violated the exclusive competence of the Member State in the area of civil status rights.  Indirectly, there is also a violation of the provisions of substantive law – including the Polish Family and Guardianship Code, as well as constitutional provisions – Article 18 – which establish marriage as a union between a woman and a man.  It should be emphasized that the regulations concerning civil status certificates do not constitute an autonomous entity and are a derivative of the solutions provided for in national law – including the institution of marriage. Therefore, having a Polish civil status certificate at their disposal – and this is what the obligation of a Member State to transcribe a foreign marriage certificate of same-sex persons amounts to – these persons acquire the rights and obligations of spouses under Polish law. In the Polish Family and Guardianship Code, according to Article 115, only spouses can adopt a child. Thus, the CJEU's judgment opens the way for the adoption of children by same-sex spouses with a Polish civil status certificate.

It should be emphasized that the protection of marriage – as an institution also regulated in the Polish Constitution – against institutional interference is guaranteed (or was supposed to be guaranteed) by Article 4(2) of the Treaty on European Union, according to which the Union respects the equality of the Member States and their national identity resulting from the basic political and constitutional structures. The inviolability of the institution of Polish marriage, and thus also of Polish civil status documents reflecting this institution, is also guaranteed by Article 51 of the Charter of Fundamental Rights of the European Union. It follows from that provision that the provisions of the Charter apply to the institutions, bodies, offices and agencies of the Union, with due regard for the principle of subsidiarity, and to the Member States only in so far as they are implementing EU law (...). The Charter does not extend the scope of Union law beyond the competences of the Union, it does not establish new competences or tasks of the Union, nor does it alter the competences or tasks set out in the Treaties.

Additional protection in the case of Polish is provided by Protocol No. 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. In accordance with Article 1 thereof, the Charter does not extend the jurisdiction of the Court of Justice of the European Union or any court or tribunal of Polish or the United Kingdom to declare that laws, regulations or administrative provisions, practices or administrative actions of Polish or the United Kingdom are incompatible with the fundamental rights, freedoms and principles enshrined therein. On the other hand, in accordance with Article 2 of that Protocol, if a provision of the Charter relates to national laws and practices, it shall apply to Polish or the United Kingdom only to the extent that the rights and principles contained in that provision are recognised by the laws or practices of Polish or the United Kingdom.

As far as the legal force of the Protocol is concerned, in accordance with Article 51 of the Treaty on European Union, the  protocols and annexes annexed to the Treaties form an integral part thereof.

Thus, in its judgment in Case C-713/23, the Court unjustifiably interfered with the institution of marriage and equated the status of same-sex spouses with marriage between a woman and a man. This raises the issue of the lack of legal solutions – both on the basis of EU law and national law – concerning the legal effectiveness of the Tribunal's rulings issued ultra vires, in violation of the constitutional identity guaranteed by Article 4(2) of the Treaty on European Union. These violations occur not only in the area of family law – hence the issue of resolving them seems to be a necessary element not only at the level of academic discussion, but also on the legislative grounds.