Reflections on the CJEU's Judgment in Wojewoda Mazowiecki

Assoc. Prof. Ivan Šimović                    Josipa Kokić, PhD Candidate      

https://doi.org/10.63189/UXAY3239

On November 25, the Court of Justice of the EU (hereinafter: the CJEU) passed a highly anticipated judgment in caseJakub Cupriak-Trojan and Mateusz Trojan v Wojewoda Mazowiecki (C-713/23),^[1] eliciting debate both within the academic community and among the general public. While some welcomed the decision as a significant victory for the rights of LGBTIQ+ persons within the EU, others questioned the extent to which Member States retain the sovereignty to independently regulate substantive Family law matters – which they have never conferred upon the EU and which have long been shaped by the traditions, customs, culture, as well as religion of the given nation.

The case involved two men – Mr. Jakub Cupriak-Trojan, a Polish and German citizen, and Mr. Mateusz Trojan, a Polish citizen – who married in Germany, in 2018. Following the marriage, Mr. Cupriak-Trojan took Mr. Trojan’s surname as the second part of his own. The surname was amended in Poland as well. Wishing to reside in Poland as a married couple, Mr. Trojan and Mr. Cupriak-Trojan submitted a request to the Polish authorities to have their marriage certificate transcribed into the Polish civil register, seeking recognition of their marriage in Poland. The competent authorities dismissed their request on the grounds that same-sex marriage is not permitted under Polish law and that, as a result, such transcription would be contrary to the fundamental principles of the Polish legal order.^[2] 

Dissatisfied with the outcome, Mr. Cupriak-Trojan and Mr. Trojan decided to take the next step and bring the case before the courts. However, the first-instance court reached the same conclusion, dismissing their claim. On that account, the couple proceeded to lodge an appeal with the Supreme Administrative Court in Warsaw (Naczelny Sąd Administracyjny). Aware of the complexity of the situation – in particular the couple’s intention to reside in Poland relying on the civil status acquired through their marriage as well as the absence of CJEU case law on the transcription of marriage certificates – the Supreme Administrative Court stayed the proceedings and referred a request for a preliminary ruling to the CJEU.^[3]

The Supreme Court questioned whether the relevant provisions of EU law – Arts. 20(2)(a) and 21(1) TFEU (the right of EU citizens to move and reside freely within the Member States) read in conjunction with Arts. 7 (the right to respect for private and family life) and 21(1) of the Charter (prohibition of discrimination), and Art. 2(2) of Directive 2004/38 (definition of a “family member”) – should be interpreted as precluding the competent authorities of a Member State (in this case Poland) from refusing to recognise a same-sex marriage concluded in another Member State (in this case Germany) on the ground that such marriages are not permitted under its national law.^[4]

In addressing that question, the CJEU relied on its previous case law reasoning.  It recalled that the status of EU citizenship constitutes the fundamental status of nationals of the Member States^[5] and that every EU citizen enjoys the right to lead a normal family life with their family members – including spouse – ‘both in the host Member State and in the Member State of which they are nationals when they return to that Member State’.^[6] It further affirmed that rules on marriage fall within the competence of the Member States, which indeed are free to decide whether or not to allow same-sex marriage.^[7] Nevertheless, they still need to comply with EU law – in particular the provisions of the TFEU, which guarantee every EU citizen the right to move and reside freely within the territory of the Member States and the right to respect for private and family life – by recognising his/her civil status established in another Member State.^[8]

As in this case, the civil status of Mr. Trojan and Mr. Cupriak-Trojan – established or merely  strengthened through marriage in Germany – was not recognised by the Polish authorities, the CJEU questioned whether they would nevertheless be able to pursue family life in Poland. Having regard to their statements concerning the obstacles Mr. Cupriak-Trojan encountered with public health insurance, as well as with the change of surname in the land register, the CJEU found that the refusal of the competent polish authorities to recognise their marriage is ‘liable to cause serious inconvenience at administrative, professional and private level’. Not only has it placed Mr. Trojan and Mr. Cupriak-Trojan in a position where they cannot rely on their marital status – a situation that may affect their daily life in both the private and public spheres – but it has also likely hindered the exercise of their right guaranteed under Art. 21(1) TFEU.^[9] Hence, the CJEU underscored that, the effectiveness of the right of the EU citizens – who lived together and got married in another Member State – to move and reside freely within the territory of the Member States ‘a fortiori requires those citizens to have the certainty to be able to pursue in their Member State of origin the family life that they have created or strengthened in the host Member State, in particular by virtue of their marriage.’ ^[10]

On that basis, the CJEU concluded that the refusal by a Member State of origin to recognise a marriage between two EU citizens, lawfully concluded in a host Member State, constitutes a breach of EU law – specifically, the provision which guarantees all EU citizens the right to respect for private and family life. Member State – in this case Poland – has, therefore, the obligation to recognise a marriage between two EU citizens of the same sex that has been lawfully concluded in another Member State in which they have exercised their right to move and reside freely – in this case Germany.^[11] The means by which a Member State chooses to recognise such a marriage fall within its margin of discretion. Given that, in Poland, the only mechanism provided for recognition is transcription, the CJEU clarified that Poland ‘is required to apply that procedure without distinction to marriages between persons of the same sex and those between persons of the opposite sex.’^[12]

Lastly, the CJEU reiterated what it had held in Coman and Others v Romania, namely that such an obligation does not require a Member State to introduce same-sex marriage or to adopt legislation in that regard.^[13] Likewise, such an obligation does not undermine national identity nor does it pose a threat to public policy, which can only be interpreted strictly and can only be invoked ‘if there is a genuine and sufficiently serious threat to a fundamental interest of society.’^[14]

Upon analysing the judgment and its far-reaching implications, it goes without saying that the CJEU continued along the path that was set out in Coman and Others v. Romania. However, whereas in Coman the CJEU imposed an obligation on Romania to recognise the legal effects of a same-sex marriage solely for the purpose to move and reside freely within the territory of the Member States, in the present case it went a step further, obliging Poland to recognise it for all purposes, invoking the need to ensure the effective exercise of  the right to respect for private and family life and the right to free movement and residence. In doing so, it seems to have overlooked one of the three fundamental principles that define and limit EU competences – the principle of conferral, according to which the EU has only those competences that Member States have conferred upon it^[15]– and the fact that substantive Family law matters have never been conferred on the EU by the Member States.^[16]

By obliging a Member State to recognise an institute which doesn’t exist under its national law and which is obviously contrary to its public policy, and whose implementation and regulation would, in turn, fall exclusively under its competence, by justifying it with the need to ensure the proper functioning of the internal market, the CJEU has effectively called into question the Member States’ sovereignty and their ability to decide on these matters independently, relying solely on their national law.^[17] Moreover, it has once again stepped into an area which – due to its deep roots in the traditions, customs, culture, and religion of a given nation – can by no means become a subject of unification. Finally, with this decision, the CJEU has called into question the motto under which the EU operates – ‘United in Diversity’ – and reaffirmed what was already evident, namely that ‘the sovereignty of one Member State to regulate same-sex marriage nevertheless has a (restrictive) influence on the sovereignty of other Member States, which do not regulate this institution or recognize its legal effects.’^[18]

^[1] Court of Justice of the European Union, C-713/23, Jakub Cupriak-Trojan and Mateusz Trojan v Wojewoda Mazowiecki, 25 November 2025.

^[2] Ibid., paras. 20–23.

^[3] Ibid., paras. 24–35.

^[4] Ibid., para. 36.

^[5] Court of Justice of the European Union, Grzelczyk, C‑184/99, 20 September 2001, para. 31; Court of Justice of the EU, Commission v Malta, C‑181/23, 29 April 2025, para. 92.

^[6] Court of Justice of the European Union, Lounes, C‑165/16, 14 November 2017, para. 52; Court of Justice of the European Union, Coman and Others, C‑673/16, 5 June 2018, paras. 32 and 34.

^[7] Court of Justice of the European Union, Coman and Others, para. 37; Court of Justice of the European Union, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, 14 December 2021, para. 52.

^[8] Court of Justice of the European Union, Stolichna obshtina, rayon ‘Pancharevo’, para. 52; Court of Justice of the European Union, Mirin, C‑4/23, 4 October 2024, para. 53.

^[9] Court of Justice of the European Union, Wojewoda Mazowiecki, C-713/23, paras. 50–54.

^[10] Ibid., para. 46.

^[11] Ibid., para. 67.

^[12] Ibid., paras. 69 and 75.

^[13] Ibid., para. 61.

^[14] Court of Justice of the European Union, C-673/16, Coman, para. 44.

^[15] European Commission, Areas of EU action, Available at https://commission.europa.eu/about-european-commission/what-european-commission-does/law/areas-eu-action_en. See also: Josipović, 2005, p. 10.

^[16] Majstorović, 2013, p. 14. See also: Lowe, 2009, p. 283.; Antokolskaia, 2010, p. 412; Rutgers, 2011, p. 315; Martiny, 2011, pp. 429–457, 432–433, 436–437, 451–452.; Boele-Woelki, 2014, pp. 17–28, p. 26; Tomljenović and Kunda, 2014, p. 231.; Ćurić, Šimović, 2015, p. 175; Winkler, 2021, p. 443, 446, 455 and 465; Marino and Carrascosa González, 2024, p. 419.

^[17] See: Hoško, Majstorović, Šimović, 2022, pp. 782–783.

^[18] Ibid., p. 783.