What Can the Wojewoda Mazowiecki Ruling (C-713/23) Show Us?

https://doi.org/10.63189/GDDV4813

The judgment of the Court of Justice of the European Union (hereinafter referred to as “the CJEU”) in case C-713/23, also commonly referred to as “Trojan” or “Wojewoda Mazowiecki”, rendered on 25 November 2025, undoubtedly provoked a significant scientific and political discussion, raising certainly justified concerns. The principal matter in this case was, in brief, the issue of recognizing in Poland the same-sex marriage concluded in Germany between two Polish nationals, whose respective request had been dismissed by the competent Polish authorities.^[1] Essentially, the CJEU obliged Poland to recognize same-sex marriages concluded between two EU citizens in a Member State where these persons “have exercised their freedom to move and reside” and where such a marriage is legally permitted. It stated that the failure to do so, justified by resorting to national law as the law of a Member State not allowing same-sex marriage, of which the two spouses are nationals, and where they want to pursue their private and family life (in this specific case – the Polish law), is “contrary to fundamental rights which Art. 7 of the Charter guarantees to same-sex couples.”^[2] The CJEU went further than the European Court of Human Rights (hereinafter referred to as “the ECtHR”) in its judgment in the case of Przybyszewska and Others v. Poland, where it was established that Poland did not 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”, thus requiring some form of legal protection for same-sex couples, however, not necessarily marriage.^[3]     

The author, in this article, intends to reflect on a comment on the judgment of the CJEU, provided by the French Professor Louis d’Avout in his article “Post-national and contentious democracy. How is family law now written in Europe?”. Professor d’Avout, interpreting this judgment and noting that it constitutes “the second phase” of the dispute initiated with the above-mentioned judgment of the ECtHR, concluded that it gave precedence to the citizenship of the European Union over the national (Polish) citizenship, in matters of human rights and family law, notwithstanding the circumstance that the Polish legal order does not recognize same-sex marriage. In particular, the Constitution of the Republic of Poland mentions marriage as “a union of a man and a woman”, which is to be “placed under the protection and care of the Republic of Poland”.^[4] Consequently, this causes the breaking of Polish civil law and hinders Polish institutions from applying their domestic legal rules, as “the choice of society – good or bad – reflected in the statute or Constitution” to a certain category of Polish citizens.^[5]

Namely, this judgement rendered possible the exclusion of the application of the fundamental rules of the Polish legal framework for those Polish citizens who choose to reside abroad for a determined period of time, conclude same-sex marriage there according to the domestic procedure, and after that come back to Poland as the state of their nationality. Using the words of Professor d’Avout, “the individual mobility will thus allow to erase, in the particular case, the law of the state of nationality”, leading to the creation of “an individualized and totally permissive system due to mobility”.^[6] It may be stated that this judgment could be subsumed into a wider post-modern tendency developed in the previous decades, expressed in the extension of the application of the principle of deregulation, as one of the fundamental principles of the neoliberal economy, to the field of anthropology, leading to the weakening of societal links through the stimulation of extreme individualism.^[7]

The problematic nature of this possibility to consciously avoid the application of domestic law in this specific case is notably amplified by the fundamental constitutional importance of marriage, as a union between a man and a woman, in the Polish legal framework. In this way, the ability of some Polish citizens to spend a certain period of time abroad and conclude a (same-sex) marriage according to the rules of the chosen Member State would extinguish such fundamental significance of the marriage, as articulated by the Polish Constitution, in their regard. In essence, due to the influence of the CJEU, as a foreign factor, and not for the first time when it comes to Poland, the mere foundations of the national constitutional system are undermined, using the sovereign power of other Member States to regulate the issue of marriage according to their will as the pretext, which has the potential of causing mutual interference among the countries in how they regulate certain relevant issues.     

The interpretation of Professor d’Avout, by referring to “the choice of society”, and “fracturing of civil law”, and especially by leaving room to the possibility of the upcoming breaking of “state societies” in the individualist and post-national age,^[8] immediately reminded me of the well-known theory of the social contract, developed by Jean-Jacques Rousseau (1712-1778), or, more precisely, of how supranational institutions, by instilling the individualistic approach “from above”, undermine the foundations of the modern statehood. In that regard, this judgment of the CJEU may constitute a dangerous precedent.                                     

Namely, if we acknowledge that the social contract, with which “each of us puts his person and all his power in common under the supreme direction of the general will; and we as a body receive each member as an indivisible part of the whole”,^[9] is a basis of each state or sovereign power, it would be possible to discern better what kind of problems the commented judgment of the CJEU raises. Additionally, following the Rousseauian line of thought, the constitution or fundamental law, as an act of sovereignty and the authentic act of the general will, “creates an obligation or a benefit for all the citizens equally, so that the sovereign authority has jurisdiction exclusively over the body of the nation, without giving special treatment to any of its members.”^[10] In the Polish case, for example, the Constitution, in a Rousseauian manner, envisages that “supreme power in the Republic of Poland shall be vested in the People”,^[11] while, as previously noted, a special protection is provided to marriage as a union between a man and a woman.

However, with the application of the judgment of the CJEU, the same foundation of state sovereign powers are being eroded, in the sense that it deliberately introduces distinctions between the citizens of the same Member State, imposing on it to differentiate or literally exclude a certain category of citizens to which the fundamental constitutional principles, as an expression of the general will, shall not be applicable. Essentially, this operation leads to the prevalence of the personal will of certain individuals/citizens over the general will. 

The sovereign state authority is, thus, forced to give special treatment to some of its citizens, under certain specific conditions, contrary to its fundamental constitutional precepts, breaking its own integrity, as well as the unity of the application of the Constitution. In that manner, it may be considered an intrusion on the justified self-understanding of a given political community (or “the body politic”), as well as a kind of pressure to modify the constitutional principles, in order to avoid the unacceptable differentiation regarding the application of the Constitution to the citizens, as members of the same political community. In addition, the existence of a certain way of regulation in one Member State, which had been independently and sovereignly introduced, without the need, of course, to consult other state subjects, becomes an instrument of indirect pressure on other Member States to introduce the same or similar measure, today in the matters of family law or how the institution of marriage is to be defined, and tomorrow potentially in multiple legal fields, to prevent the differentiation in application of the fundamental domestic legal acts to their own citizens.                 

^[1] More about the details of this case on this blog here: Ivan Šimović, Josipa Kokić, Reflections on the CJEU's Judgment in Wojewoda Mazowiecki (C-713/23).

^[2] C-713/23, para. 67.

^[3] Przybyszewska and Others v. Poland, para. 123.

^[4] Constitution of the Republic of Poland, Art. 18.

^[5] Louis d’Avout,  Démocratie postnationale et contentieuse. Comment s'écrit, désormais, le droit de la famille en Europe?, Recueil Dalloz, 2025, 44, p. 2163. The English translation of the title and citations from the original piece is done by the author of the present post.

^[6] Ibid.  

^[7] Diego Fusaro, Sinistrash – Contro il neoliberismo progressista, Piemme, Segrate (Milano), 2023, pp. 22-23.

^[8] Ibid.  

^[9] Jean-Jacques Rousseau, Discourse on Political Economy and the Social Contract, Oxford University Press, 1994,  p. 55.

^[10] Ibid, p. 69.

^[11] Constitution of the Republic of Poland, Art. 3.