(de) la Tour fait le cavalier

On 3 April 2025, Advocate General de la Tour handed down his Opinion in C-713/23, Wojewoda Mazowiecki, a case that further advances the path opened by Coman on the protection of rainbow families through the exercise of free movement and EU citizenship rights. The referring court demanded clarification on the recognition and transcription of same-sex marriage contracted in another Member State between two nationals of the State where recognition was sought.

The Opinion of AG de la Tour commendably advances the Coman trajectory by acknowledging that even EU Member States where same-sex marriage is not permitted must recognise a family bond lawfully established in another Member State – including for purposes beyond mere residence. Yet, akin to a knight’s leap in chess, the Opinion sidestepped the question of marriage transcription in civil status registry with a reasoning that does not seem entirely convincing. It insulates the national competence on civil status register from the reach of EU law, without a sound explanation, and is liable to create hurdles for LGBTIQA+ families seeking recognition.

Recognition of LGBTIQA+ rights beyond the right to move and reside

With Coman in 2018, the Court defined the term “spouse” in Article 2(2)(a) CRD as encompassing also same-sex married couples (Coman, para 35). Under that provision, the same-sex spouse of a Union citizen, lawfully married during genuine residence in another Member State, has a right to reside irrespective of whether the State of residence recognises same-sex marriage (Coman, para 36).

Coman constituted a first – crucial – step in the protection of LGBTIQA+ family rights through EU citizenship. Yet, as the Court stressed that the recognition of same-sex marriage is limited to the right to reside (Coman, para 40), it left many questions unanswered regarding the families’ rights for purposes beyond free movement (Tryfonidou and the Opinion of de la Tour himself in Mirin, para 96). The case Wojewoda Mazowiecki aimed at confronting the CJEU precisely with those issues.

Facts

Polish civil status authorities refused to transcribe the marriage certificate for a same-sex couple of Polish nationals (one of whom also with German nationality) married in Germany and residing in Poland. Since Polish law does not allow same-sex marriage, one of the spouses would be wrongly recorded under the heading “woman”. Moreover, according to the Polish authorities, registering such a marriage would be “contrary to fundamental principles of the Polish legal order”. Finally, in their view, refusal to register the marriage would not conflict with EU law, as the recognition was not being requested for the purposes of residence or passport issuance.

The referring court (the Polish Supreme Administrative Court), on appeal, asked the CJEU whether EU law (in particular Art. 20 and 21 TFEU, and Art. 7 and 21 EU Charter, and 2(2) CRD) preclude a Member State from refusing to recognize the marriage and transcribe it into the civil status registry, thus preventing the applicants from living under their marital status in their State.

The Opinion of AG de la Tour: one step ahead

The AG separated from the outset the question of recognition of the marriage from that of its transcription. Regarding the former, whilst Member States retain their competence on civil status, they have to exercise it in compliance with EU law and recognise the change of status legitimately occurred in the exercise of free movement under Article 21 TFEU (para 27).

The AG started by distinguishing the recognition of family ties (inter-personal status) from personal status (paras 28-30). Amendments to the latter, such as recognition of gender transition, must be transcribed in civil status records (Mirin para 57). Conversely, following Coman on same-sex marriage and Pancharevo on same-sex parenthood, Member States are required to recognise changes in inter-personal status, but only for purposes related to movement, residence, or the issuance of travel documents.

Going beyond the reasoning in those cases, the AG held that in situations falling within the scope of EU law – because the applicants exercised their right to free movement and lawfully got married in another Member State – the refusal to recognise that marriage constitutes a restriction to the rights under Article 21 TFEU (para 32). As in Coman, the applicants were invoking rights against their State of nationality in a circular migration context. However, unlike Coman, the issue at hand did not concern the definition of the term spouse and the residence right under the CRD applied by analogy, even though the CRD was referenced in the preliminary question. In fact, recognition of the marriage was not necessary for the right to reside since both applicants were Polish nationals. Rather, the question was whether a family bond, once lawfully established in another Member State, must be recognised and protected throughout the EU. The main concern, therefore, revolved around the right to return – based solely on Article 21 TFEU. For this right to be effective, it must include the ability to return to one’s Member State of origin after having genuinely exercised free movement (a point not addressed by the AG), and to live there with one’s family status fully recognised and protected.

Despite being anchored in Article 21 TFEU, the core of the case arguably lies in the effective safeguard of the right to family life under Article 7 EU Charter (para 33), extending beyond a free-movement-only solution, as the recognition of the effects of the marriage is not limited to residence or the issuance of travel documents. Commendably, the AG examined the potential violation of fundamental rights – more thoroughly than the free movement aspects – focusing on the lack of any form of legal recognition for same-sex families. This echoes the ECtHR’s ruling in Przybyszewska and Others v. Poland (para 35), where such non-recognition was deemed incompatible with the Convention.

Consequently, the AG concluded that where a Member State does not provide a specific legal framework for rainbow families – thereby denying individuals the right to autonomously determine a fundamental aspect of their private and family life – it must, under EU law, at least “establish appropriate procedures for the recognition of ties established in another Member State” through the exercise of free movement (para 36). Remarkably, mutual recognition seems to compensate for the absence of domestic protection or even the explicit prohibition of same-sex marriage. This suggests that Treaty rights may chart an alternative route to safeguard the fundamental rights of rainbow families when national avenues are barred (see, on Coman, Belavusau). Moreover, in line with Coman, such an obligation does not violate the national identity of the Member State (para 36), and it is submitted that it offers a balanced solution: fundamental rights are protected through EU citizenship without requiring the Member State to provide for same-sex marriage domestically.

Two steps sideways

On the transcription of marriage in civil status records, Wojewoda Mazowiecki seems to serve as a test case for the evolution witnessed in Mirin, where the Court held that Member States have a strict duty of mutual recognition and transcription in civil status records of a gender transition recognised in another Member State. The AG acknowledged the obligations stemming from that case but distinguished the transcription of changes to personal status (e.g., gender identity or name) from those regarding inter-personal status (e.g., marriage, parenthood). Regarding family ties, de la Tour followed the stance he had anticipated in Mirin: the transcription of changes to inter-personal status does not ensue automatically from the obligation of mutual recognition (Mirin, Opinion, paras. 87 and ff.).

This conclusion takes two steps sideways from the first part of the Opinion. First, it distinguishes between the recognition of the effects of a marriage and the obligation to transcribe it – the latter applying only to matters of personal identity, and not to inter-personal statuses (para 38). Second, the AG asserted that transcription is not required unless the recognition of the marriage’s effects would be ineffective without it. In Poland, the administrative practice is such that transcription is the only way of proving a marriage. Hence, to guarantee the effective enjoyment of the right to family life without undue administrative obstacles, Polish authorities must transcribe the marriage (para 45). However, this obligation does not apply to all Member States, provided that they foresee alternative mechanisms to secure the rights under Article 7 EU Charter and that the “formality” of transcription is not necessary for the marriage to be proven and produce legal effects (para 46).

This turn in the reasoning is not persuasive for several reasons. The distinction between the transcription of changes to personal identity and those relating to family status is difficult to sustain. In both cases, “serious inconveniences” may arise. Family ties are inherently linked to “the personal and the social identity of the applicants as homosexual people wishing to have their relationships as couples legitimised and protected by law” (para 35, referring to ECtHR case law on the lack of legal recognition of same-sex couples).

Moreover, the Opinion insufficiently explains the reasons for the strong insulation of national competence over the transcription of civil status – which the Opinion itself describes as a “formality” – in contrast to the recognition, prescribed by EU law, of the substantive effects of the same-sex marriage. While the AG read the scope of Member States’ obligations through the lens of their administrative procedural autonomy, he failed to acknowledge the unconvincing practical consequences of recognition without transcription. How would that work in practice? The alternatives proposed (para 54) – i.e. presenting the marriage certificate, which does not require legalisation, or allowing the spouses to use the same surname – are not as effective as transcription. Would individuals be expected to carry their marriage certificate – duly translated, one might imagine – in their wallet at all times? De la Tour overlooked the hurdles that the lack of transcription of inter-personal status would cause in the daily life of individuals, as well as in the exercise of their (fundamental) rights as a family.

Even considering the division of competences between the EU and the Member States, this part of the reasoning remains doubtful. Noting that the applicants sought recognition of their marriage to exercise domestic rights (para 43), the AG highlighted that civil status records fall within national “exclusive competence”. However, the recognition of the legal effects of marriage does not fall within the scope of EU competences either, and still, Member States must exercise their retained competences in compliance with EU law, and, as the AG held, recognise the same-sex marriage lawfully contracted in another Member State – beyond free movement purposes. Accordingly, it is unclear why transcription should be treated any differently?

The Opinion does not convincingly justify this differentiation, which creates significant obstacles to the effectiveness of EU citizens’ rights. In the AG’s view, a general obligation to transcribe the marital status would “move from an approach based on the principle of free movement of a Union citizen that is limited to his or her identity, to an approach based solely on the right to respect for his or her family life”, which would be “incorporated into the right of free movement and residence and would be detached from any derived right” (para 57). However, as the Court repeatedly stated, in the exercise of free movement, EU citizens have a right to lead a normal family life (Lounes, para 52 and Lazzerini). Accordingly, that right is already “incorporated” into free movement law. Leaving Member States a margin to decide which degree of administrative burden can they impose on LGBTIQA+ families seems like an unnecessary formal compensation for the substantive obligation to recognise the marriage.

The AG laudably relied on Member States’ international commitments under the ECHR to reinforce EU Charter rights that touch upon politically sensitive areas (Spaventa). Nevertheless, the fact that transcription falls within the States’ margin of appreciation under the Convention – and is therefore not mandated by the latter (paras 51-52) – is of limited relevance. Under Article 52(3) EU Charter, EU law can go beyond the ECHR protection (compare to para 53). Furthermore, the margin of appreciation doctrine, as developed by the ECtHR, is not entirely congruent in this context. Unlike Orlandi v Italy, the issue at hand is not about the duty to enact domestic reforms to introduce a legal framework on same-sex marriage or partnership. Rather, the present situation concerns the obligation to recognise a family bond lawfully established in another Member State and ease the administrative burdens to ensure effective protection of the applicants’ rights, particularly non-discrimination and respect for family life (on the different nature of those obligations, see Nic Shuibhne and Bacic). Such a duty is grounded in EU citizenship and the logic of mutual recognition, which may simultaneously require more – such as recognition and transcription – and less – by not imposing domestic reforms – than what is demanded under the ECHR.

Conclusion

Overall, the Opinion seeks to find a balance between the different interests at stake: the fundamental rights of the applicants – and of the many families in similar circumstances – the politically sensitive concerns of certain Member States, and, ultimately, the division of competences between the EU and its Member States. Despite taking a step ahead in a fundamental-rights-oriented direction regarding the recognition of same-sex marriage beyond the free movement purposes, de la Tour chose a rather cautious and unconvincing approach to transcription. By holding that the latter is not required under EU law unless recognition would be ineffective without it, the AG shifted laterally, evading challenging questions with significant practical and fundamental rights implications for individuals.