On 25 November 2025, the CJEU delivered its ruling in the Cupriak-Trojan case. The issue in this case arose when Poland refused to recognize a same-sex marriage legally concluded in another Member State. The ECtHR had already convicted Poland because same-sex partners cannot formalize their relationship in any way under Polish law. Following these ECtHR convictions, the CJEU similarly ruled that Poland has to recognize same-sex marriages concluded in other Member States. By ruling so, the CJEU effectively took the ECtHR convictions and provided them with extra ammunition for enforcement. This ammunition comes in two forms: mobilizing the national judges to recognize foreign same-sex marriages – even if national law would not allow so – and gently pushing the Polish legislator towards passing the civil partnership bill into legislation.

Facts of the case

In the Cupriak-Trojan-case, two Polish men had moved to Germany under EU free movement law. While residing in Germany, the couple got married. However, upon return to Poland, the Polish government refused to register their marriage, arguing that Polish law only recognizes marriages between a man and a woman. The couple argued that the lack of recognition restricted their free movement rights read in the light of their fundamental right to family life. Three ECtHR judgments (Przybyszewska a.o. v Poland , Formela a.o. v Poland and Andersen v Poland) already confirmed that Polish law violates the right to family life of same-sex couples by not providing any legal framework to recognize and protect their relationship.

Ruling by the CJEU

Advocate-General Richard de la Tour argued in his Opinion that Article 21 TFEU (the right to free movement and residence for every EU citizen within other Member States) does not require full recognition of same-sex marriages concluded in another Member State, but instead requires a more limited recognition. (For a criticism on this Opinion: see here, here, here and here) The Advocate-General based this reasoning partially on the apparent limitations of the Coman case. (A-G Opinion, paras 27-31 and 53) In that case, the CJEU found that Member States only had to recognize same-sex marriages concluded in another Member State to “enabl[e] such persons to exercise the rights they enjoy under EU law” (Coman, para 45).

The CJEU did not follow the Advocate-General’s Opinion. In its motivation, the CJEU instead argued that the right to free movement of EU citizens includes the “right to lead a normal family life, together with their family members”. (Cupriak-Trojan para 43) This right to lead a normal family life implies an obligation on the Member States to fully recognize the civil status of an EU citizen lawfully established in another Member State. (para 48 and further) Not recognizing a marriage legally concluded in another Member State therefore forms an obstacle to the right of free movement (para 53).

Free movement rights are however not absolute. Obstacles to free movement can be justified if three conditions are fulfilled (para 55). First, the restrictive measure needs to pursue a legitimate objective in the general public interest. Second, the restriction of the right to free movement needs to be proportionate to this legitimate objective. Third, the restrictive measure cannot violate fundamental rights.

Applied to the Cupriak-Trojan-case, the measure already fails on the first condition. The Polish government argued that the lack of recognition intends to protect the institution of marriage framing their objective as one of public policy and national identity (para 57 et seq.). However, the CJEU stated that the recognition of a same-sex marriage concluded abroad does not undermine the institution of marriage (para 61), and therefore dismissed both public policy and national identity as relevant objectives (para 62). As the restriction to the right of free movement could not be justified in this case, the Polish refusal to recognize the marriage between Mr. Cupriak-Trojan and Mr. Trojan violated their rights to free movement under Article 21 TFEU.

Free movement as opening for rainbow (family) rights

The CJEU could have simply stopped there, but instead, it continued for 14 more paragraphs. In an extensive obiter dictum, the CJEU explained that even if there would exist a legitimate objective to not recognize a same-sex marriage concluded in another Member State, then still the restriction to free movement would need to comply with fundamental rights obligations (para 63). In that regard, the CJEU emphasized how the ECtHR has already convicted Poland at least three times in very similar cases as Cupriak-Trojan for not providing any form of recognition to same-sex couples (para 66).

By spending so much attention on the fundamental rights obligations, the CJEU seemed to admit that the case inherently is one of fundamental rights. Framing the issue as a restriction of free movement in the sense of Article 21 TFEU, it brought the matter within the scope of EU law. From a fundamental rights perspective, this free movement angle is crucial. After all, the EU Charter of Fundamental Rights only applies to issues falling within the scope of EU law (Article 51(1) of the EU Charter).

From an LGBT rights perspective, Cupriak-Trojan is a game changer. In 2023, the Grand Chamber of the ECtHR ruled in its Fedotova judgment that the right to family life includes a positive obligation for all State Parties to provide same-sex couples with a legal framework through which they can get their relationship recognized. (For a criticism on Fedotova, see here, here, here and here.) Since then, the ECtHR has convicted several States – including the EU Member States Poland, Bulgaria and Romania – for not providing any form of legal recognition. Unfortunately, none of these States have already adopted the necessary legislation to provide such a legal framework.

With Cupriak-Trojan, the CJEU used free movement law as a hook to claim jurisdiction over the issue. In addition, by going further than Coman in what is considered an “obstacle to free movement”, the fundamental right to family life of all EU citizens in a cross-border situation now potentially falls entirely within the scope of EU law. Therefore, Cupriak-Trojan basically took the earlier convictions by the ECtHR and turned them into EU law.

In that sense, Cupriak-Trojan shows many similarities with the Mirin case. In Mirin, a Romanian national had legally changed gender while residing in another Member State. Upon return to Romania, the Romanian government refused to recognize the legal gender change. Similarly, Romania had been previously convicted by the ECtHR in a very similar case. Similarly, Advocate-General Richard de la Tour argued that EU free movement law only required limited recognition of the gender change by Romania. And similarly, the CJEU instead ruled that free movement law requires full recognition of a gender change lawfully established in another Member State.

Empowering national judges – constitutional clash upcoming?

Since the CJEU (only) confirmed the earlier convictions by the ECtHR, one could wonder about the added value of Cupriak-Trojan. The added value is twofold. First, the Cupriak-Trojan judgment might empower the national judges to recognize foreign same-sex marriages. The Cupriak-Trojan judgment explicitly stated that Article 21 TFEU in conjunction with Articles 7 and 21 of the EU Charter have direct effect (para 76). Direct effect implies that anyone can invoke these provisions in front of a national judge. Same-sex spouses in a similar position as Mr. Cupriak-Trojan and Mr. Trojan can thus directly rely on this judgment before a national court to have their same-sex marriage recognized across all the Member States in the EU. Since EU law has supremacy over national law, national courts can even put conflicting national rules aside, including the national constitution.

At the same time, the Trybunał Konstytucyjny (Polish Constitutional Tribunal) might not be pleased with the Cupriak-Trojan judgment. After all, the Polish Constitution explicitly provides that “marriage” can only be a “union between a man and a woman” (Article 18 of the Polish Constitution). Furthermore, the Trybunał has openly defied the supremacy of EU law over the Polish Constitution before (for a commentary on this ruling, see here and here).

The CJEU instructed the referring judge to interpret the national law in line with EU law if possible, and to put aside the national law if needed (para 76). In other words, the CJEU asked of the national judge to recognize the marriage between Mr. Cupriak-Trojan and Mr. Trojan even if this goes against the Polish Constitution. The referring judge will thus be forced to publicly declare which supreme court they pledge allegiance to: the one in Luxembourg or the one in Warsaw. A constitutional clash might be upcoming.

An extra incentive for the Polish legislator to consider registered partnerships

Second, the Cupriak-Trojan judgment also created added value by gently pushing the Polish legislator towards adopting the civil partnership bill. The convictions in the ECtHR cases required Poland to adopt a legal framework to recognize and protect same-sex relationships. In reaction to these judgments, the government thus proposed to introduce registered partnerships for same-sex couples. So far, Poland has not managed to adopt any legislation, as president Nawrocki has threatened to veto any proposal where registered partnerships would be too similar to marriage. Therefore, the ECtHR judgments de facto remained dead letter, with limited incentives for the Polish legislature to adopt the proposed legislation.

The Cupriak-Trojan judgment now creates an extra incentive for the Polish legislator to act. If Poland does not implement any form of recognition through legislation, mobile same-sex couples can get married in another Member State and get their marriage recognized upon return. So, if Poland does not want same-sex couples to get access to marriage recognized in Poland, they will have to pass the civil partnership bill into law.

Currently, the Polish government seems to blow hot and cold about whether and how they will implement the ruling. On the one hand, the government has confirmed they will abide by the CJEU ruling. On the other hand, prime minister Tusk also warned the EU that “Poland won’t be pressured to recognize same-sex marriages.” President Nawrocki even spoke of a “terror of rainbow rulings” fiercely opposing both the rulings from Strasbourg and Luxembourg on rainbow rights. We shall see if they manage to find a compromise in the end.

Conclusion

The fight for marriage equality in Europe is not over yet. However, with Cupriak-Trojan the proponents have won a significant battle. Member States now need to give at least some recognition to same-sex marriages concluded in another Member State. Furthermore, the case clearly indicates that both Strasbourg and Luxembourg are allies in the fight. Strasbourg leads the charges and convicts States that refuse to recognize same-sex relationships. Luxembourg is providing the ammunition to get these judgments enforced within the European Union.

Furthermore, the CJEU has interpreted the concept of “restriction to free movement” more broadly, making potentially the entire fundamental right to family life of mobile citizens fall within the scope of EU law. At the same time, the impact of Luxembourg’s contribution is currently limited by the personal scope of free movement law. The Cupriak-Trojan case does not have any effect (yet) for static citizens who want to get married with their same-sex partner. Similarly, third country nationals that reside in the EU also cannot benefit from this judgment yet. The victory for rainbow family rights is thus relatively small, but nevertheless significant.

I would like to thank Türkan Ertuna Lagrand, Ton van den Brink and Hanneke van Eijken for their feedback and thoughts on an earlier draft. Additionally, I extend my gratitude to Fulvia Ristuccia, Chiara Raucea and Maria Haag for the opportunity to discuss the different aspects of the case within the CIRCLES meeting.