C-713/23 Wojewoda Mazowiecki judgment: Abandoning the ‘Free Movement Purpose’ Approach to Civil Status Recognition?

Table of Contents: 1. Introduction – 2. Case C-713/23 Jakub Cupriak-Trojan and Mateusz Trojan v Wojewoda Mazowiecki – 2.1. Facts of the case – 2.2. Opinion of the Advocate General Richard de la Tour – 2.3. Reasoning and decision of the CJEU – 3. Articles 20 and 21 TFEU: What is new about Union citizenship and free movement rights? – 4. The CJEU redraws the boundaries of recognition of civil status components: Moving beyond the free movement purpose – 5. National identity and public policy – 6. Conclusion.

Abstract: More than seven years after the Coman judgment prompted sustained scholarly discussion, the CJEU has revisited the issue of same-sex marriage recognition in Wojewoda Mazowiecki, further strengthening the protection afforded to Union citizens. Delivered on 25 November 2025, the ruling is noteworthy for two principal reasons. Unlike Coman, which concerned recognition primarily for residence purposes of a third-country national spouse, the present case involves two Union citizens whose free movement rights arise directly from Articles 20 and 21 TFEU. In addition, the CJEU departed from the limited recognition model adopted in Coman, extending the obligation of recognition to encompass the full legal effects of a same-sex marriage lawfully concluded in another Member State. The judgment, therefore, signals a shift in the CJEU’s approach to civil status recognition. This article examines the ruling after outlining the facts, the AG’s Opinion, and the CJEU’s reasoning. It analyses the judgment from three angles: Union citizenship and free movement, the evolving boundaries of civil status recognition, and the role of national identity and public policy.

Keywords: EU free movement rights – same-sex marriage recognition – Union citizenship – fundamental rights – civil status– national identity. 

1.   Introduction

Seven years after the Coman judgment sparked intense academic debate among EU law scholars, the Court of Justice of the European Union (CJEU) has returned to the field with a judgment that not only confirms its earlier position but edges the protection of Union citizens forward. The Wojewoda Mazowiecki judgment, delivered by the CJEU on 25 November 2025, represents a long-anticipated development for two main reasons. Firstly, the concerned applicants in this case are Union citizens, who have concluded a same-sex marriage, unlike in the Coman judgment, where the recognition of marriage was mainly important for granting a residence right, in a Member State of the EU, for the third-country national spouse. Thus, the concerned applicants in the present case have their own individual right to move and reside freely in the territory of the EU without needing a derived right of residence due to marriage with a Union citizen. 

Secondly, the present ruling transcends the Coman framework, which limited recognition to free movement purposes, and paves the way for full recognition. In other words, it mandates the recognition of a same sex marriage, concluded between two Union citizens in another Member State, and all its legal effects as a family law instrument. 

The CJEU’s decision in Wojewoda Mazowiecki represents a significant step forward in the protection of Union citizens’ rights. However, the CJEU’s reasoning needs closer examination to better understand its interpretation of EU law and to anticipate its effects in future cases. 

After setting out the facts of the case, the Opinion of the Advocate General (AG), and the judgment of the CJEU, this article analyses the ruling from three perspectives. First, it examines Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) to assess what the judgment reveals about Union citizenship and free movement rights. Second, it considers how the CJEU has redrawn the boundaries of recognition of civil status components, moving beyond a strictly free–movement purpose. Third, it explores the role of national identity and public policy in shaping the CJEU’s reasoning. These angles are discussed in light of the CJEU’s previous case law and relevant legal doctrine.

2.   C–713/23 Jakub Cupriak–Trojan and Mateusz Trojan v Wojewoda Mazowiecki

2.1.  Facts of the case 

In 2018, Mr Jakub Cupriak-Trojan, a Polish and German national, and Mr Mateusz Trojan, a Polish national, got married in Berlin. After their marriage, Mr Cupriak-Trojan decided to add to his birth name, in accordance with German law, the surname of his spouse. Upon the request of Mr Cupriak-Trojan, the Head of the Civil Registry Office of Warsaw reflected this change in his birth name in Poland as well.

In 2019, the Head of the Civil Registry Office of Warsaw, where the birth certificates are held, refused to transcribe the German marriage certificate of Mr Cupriak-Trojan and Mr Trojan on the grounds that Polish law does not allow same-sex marriages and the transcription of such a certificate would be contrary to the fundamental principles of the Polish legal order. This decision was upheld by other Polish authorities and courts until the case reached the Supreme Administrative Court of Poland.

The latter subsequently referred a preliminary question to the CJEU asking whether EU law, namely Articles 20 and 21 TFEU, Article 21(1) of the Charter of Fundamental Rights of the EU (the Charter) and 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 (Directive 2004/38/EC), should be interpreted as precluding Member States from refusing to recognise a same-sex marriage and transcribe a foreign marriage certificate into the national civil registry when it prevents those persons from residing in that Member State as a married couple, on the ground that the law of the host Member State does not provide for same-sex marriage? [1]

2.2.  Opinion of Advocate General Richard de la Tour

The analysis of AG Richard de la Tour started in the classical way by pointing out that under the current state of EU law, the status of persons is a matter falling within the competence of the Member States and EU law does not affect that competence. However, when exercising that competence, Member States must comply with EU law, particularly with the free movement rights of Union citizens.[2]

AG Richard de la Tour opined that the absence of any recognition in one Member State of the marital relationship established between two persons of the same sex, registered in another Member State, creates a restriction on the exercise of the rights deriving from Article 21(1) TFEU. Thus, the applicants who are both Union citizens and whose situation falls within the scope of EU law must be able to reside and move freely within the territory of the Member States, as well as when they return to their Member State of origin, while being recognised as married persons.

Referring to Article 7 of the Charter and its alignment with Article 8 ECHR, the AG invoked the case law of the European Court of Human Rights (ECtHR). The latter has interpreted Article 8 ECHR as requiring Member States to ensure legal recognition and protection of same-sex couples by putting in place a ‘specific legal framework’.[3] While putting that conclusion in the EU law context, AG Richard de la Tour reasoned that it is for the Member States, where they do not provide for, or even prohibit, the institution of marriage between persons of the same sex in their national law, to establish appropriate procedures for the recognition of ties established in another Member State.[4]

In the view of AG Richard de la Tour, as long as Polish national law does not offer any alternative form of recognition for same-sex couples, it is consequently obliged to transcribe the foreign marriage certificate into its civil register. The obligation to register a foreign marriage certificate does not apply where the marriage’s effects are otherwise ensured, and it is for each Member State to define the appropriate means of guaranteeing the right to respect for the private and family life of same-sex couples.[5]

In conclusion, AG Richard de la Tour held that Articles 20 and 21(1) TFEU, in light of Article 7 of the Charter, do not require a Member State to transcribe a same-sex marriage certificate lawfully issued in another Member State, provided that alternative forms of recognition are available. However, they preclude national laws or practices that deny any form of recognition of such marriages solely because same-sex marriage is not permitted under domestic law.[6]

2.3.  Reasoning and decision of the CJEU

The CJEU refined the AG’s conclusion, producing a preclusive outcome, yet the substantive outcome remained the same. It first recalled some general considerations before explaining more specifically the existence of an obstacle and its justification.

Given that both spouses in the present case were Union citizens, specifically Polish nationals, the CJEU immediately clarified the legal basis of the dispute. It noted that the dispute does not come within the scope of Directive 2004/38, which governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he or she is a national.[7] Consequently, the CJEU centred its analysis on EU primary law, namely Article 20 and Article 21(1) TFEU, Article 7 and Article 21(1) of the Charter.

The CJEU reaffirmed that the status of Union citizenship is a fundamental status of nationals of the Member States and Articles 20(2), 21 and 22 TFEU attach a series of rights to that status.[8] Article 21 (1) TFEU accords to a national of a Member State, who as a Union citizen has exercised his free movement rights, to rely on the rights pertaining to Union citizenship, including, where appropriate, against his or her Member State of origin. Amongst others, nationals of Member States enjoy through their Union citizenship status the right to lead a normal life, together with their family members, including their spouses, both in the host Member State and in the Member State of their nationality.[9]

In support of this argument, the CJEU drew upon the Coman judgment,[10] noting that there is an obligation to grant a derived right of residence to the spouse of a Union citizen, in a situation where that spouse is a third-country national of the same sex as the Union citizen and where the marriage with the Union citizen had been lawfully concluded in the host Member State.[11]

In the present case, since two Union citizens are married in accordance with the law of the host Member State, the effectiveness of the rights which those citizens derive from Article 21(1) TFEU require those citizens to be able to pursue in the Member State of origin the family life that they have created and strengthened in the host Member State by virtue of their marriage.[12] The refusal to recognise such a marriage causes serious inconvenience for those citizens at administrative, professional and private levels. Additionally, such a refusal prevents Union citizens, who have created and strengthened family life while residing in the host Member State by living there as married persons, from pursuing family life and, at the same time, benefiting from that legal status and forces them to live as unmarried persons after their return to their Member State of origin.[13]

The recognition of marriage was refused in Poland on the grounds that Polish law does not allow marriage between persons of the same sex and that the transcription of their marriage certificate in the Polish civil register would be contrary to the fundamental principles enshrined in the Polish legal order.[14]

In response to this argument, the CJEU invoked the concept of national identity under Article 4(2) of the Treaty on European Union (TEU) and public policy. It emphasised that the obligation on the Member State of origin to recognise a marriage concluded between Union citizens of the same sex in the host Member State in the exercise of their freedom to move and reside, in order to enable them to return to the Member State of which they are nationals to pursue their family life there, benefiting from their marital status, does not undermine the institution of marriage in the Member State of origin, which is defined by national law and falls within the competence of the Member States. Therefore, such an obligation does not undermine the national identity or pose a threat to the public policy of the Member State of origin.[15] Moreover, a restriction to freedom of movement in such situations may be justified only if it is consistent with fundamental rights guaranteed by the Charter, particularly the right to respect for private and family life under Article 7 and the prohibition of any discrimination based on sexual orientation under Article 21(1) Charter.[16]

The CJEU also referred to the case law of the ECtHR, which, based on Article 8 ECHR, has imposed a positive obligation on Member States to establish a legal framework providing for the legal recognition and protection of same-sex couples, and Poland has failed to comply with that obligation.[17]

Similarly, as AG Richard de la Tour in his Opinion, the CJEU accepted that the procedures for recognising marriages entered into by Union citizens in another Member State fall within the discretion of the Member States. Thus, the transcription of foreign marriage certificates is only one of several possible procedures for such recognition. Nevertheless, that competence should be exercised by the Member States in full compliance with Article 21 TFEU and Article 21(1) of the Charter. It is pointed out that the prohibition of any discrimination on grounds of sexual orientation is mandatory as a general principle of EU law.[18] Transcription of a marriage certificate in the Polish civil register is the only means provided by Polish law for a marriage concluded abroad. And, Polish law allows the transcription of the foreign marriage certificates between heterosexual couples but refuses that of same-sex couples.[19] Hence, it follows that where a Member State, acting within its margin of discretion, provides in its national law a single procedure for recognising marriages concluded by Union citizens in the exercise of their free movement rights, namely, the transcription of the marriage certificate in the civil register, that Member State must apply that procedure without distinction to marriages between persons of the same sex and those between persons of the opposite sex. [20]

After confirming the direct effect of the relevant provisions,[21] the CJEU concluded its judgment by stating that Articles 20 and 21(1) TFEU, read in the light of Articles 7 and 21(1) of the Charter, preclude legislation of a Member State which, on the ground that its law does not allow marriage between persons of the same sex, does not allow the recognition of a marriage between two of its nationals of the same sex, legally concluded in the exercise of their freedom of movement and residence in another Member State, in which they have developed or consolidated a family life, or to transcribe the marriage certificate in the civil registry of the first Member State for that purpose, where such transcription is the only means provided by that Member State for such recognition.[22]

3.   Articles 20 and 21 TFEU: What is new about Union citizenship and free movement rights?

Three decades ago, AG Jacobs in the Konstantinidis case stated that a Union citizen who exercises his freedom to move and reside within the EU should be entitled to say: ‘I am a European citizen – civis europaeus sum – and invoke that status to oppose any violation of his fundamental rights’. [23] A few years later, in Grzelczyk, the CJEU famously declared that Union citizenship is ‘destined to be the fundamental status of nationals of the Member States’. [24] Since then, the CJEU has repeatedly reaffirmed that formula. In the present ruling, Wojewoda Mazowiecki, the CJEU appears to develop further its case law, such as Coman and Pancharevo, where it had already linked Union citizenship and free movement rights to the protection of family life. In the present judgment, however, the CJEU provides a more concrete indication of what this protection entails and of the obligations it imposes on Member States in relation to the recognition of family relationships established in another Member State.[25]

Article 20 (1) TFEU defines who a Union citizen is, i.e. every person holding the nationality of a Member State. Article 20 (2) states that ‘citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties’ and then enumerates their rights. According to the wording of the provision ‘they shall have, inter alia…’, the list of rights is not exhaustive. Article 21(1) TFEU confers the right to move and reside freely within the territory of the Member States. Neither provision explicitly guarantees a right to recognition of civil status, nor do they expressly define the substance of Union citizenship through reference to the fundamental rights protected under the Charter, even though those rights form part of the broader constitutional framework of Union law. In light of these provisions and the present ruling in Wojewoda Mazowiecki, the central question is whether the unenumerated rights of Union citizens must derive from other Treaty provisions or whether the CJEU can extend these rights through its case law to rights guaranteed by the Charter, thus reshaping the relationship between Union citizenship, free movement and fundamental rights protection.

The coupling of free movement rights with the right to respect for family life under Article 7 of the Charter does not derive from an explicit Treaty mandate; rather, it results from the CJEU’s interpretative approach, which reads free movement provisions in light of fundamental rights. However, while in the earlier case law, the connection to Union citizenship was required solely to safeguard the effectiveness of free movement, limiting recognition to what was necessary for citizens and their family members to move freely, in the present judgment, that link is deployed for a broader purpose.[26] It ensures the effectiveness of the marriage itself, namely the recognition of a marriage concluded in another Member State and the full range of its legal consequences, by protecting the right to family life of the Union citizens concerned as an integral element of the effective exercise of their free movement rights. 

This development must be situated within the CJEU’s broader citizenship jurisprudence. In Ruiz Zambrano, the CJEU introduced the notion of the ‘genuine enjoyment of the substance of the rights conferred by virtue of Union citizenship’.[27] It held that Article 20 TFEU precludes national measures which deprive Union citizens of such genuine enjoyment. [28] However, the CJEU did not define exhaustively what constitutes the substance of rights, nor did it expressly refer to fundamental rights or the Charter in its reasoning. Nevertheless, in the aftermath of that judgment, legal scholarship increasingly interpreted the Charter as forming a significant component of the said ‘substance of rights attached to the status of Union citizenship’ articulated by the CJEU in Ruiz Zambrano.[29]

Subsequent judgments, such as McCarthy[30], Dereci[31] and Iida,[32] clarified the limits of the Ruiz Zambrano principle, confining the application of Article 20 TFEU to situations where Union citizens would otherwise be compelled to leave the territory of the Union. In those cases, the CJEU resisted an expansive reading that would transform Union citizenship into a general vehicle for fundamental rights review. It seemed that it aimed to decisively sever the (hypothetical) ties between the substance of Union citizenship rights and fundamental rights enshrined in the Charter, specifically the right to private and family life.[33] Hence, it was noted that the right to respect for family life can be included in the assessment of the substance of the rights under Article 20 TFEU only indirectly, when the Union citizenship’s effet utile is at risk.[34]

Although the idea of building a bridge between the substance of Union citizenship rights and the essence of Charter fundamental rights was appealing to some authors due to the existence of a mutual empowering and fulfilling relationship between the two concepts of citizenship and fundamental rights in the constitutional traditions of the Member States, Lenaerts has argued against such an approach.[35] He has put forward the argument that the rights attached to the status of Union citizenship are to be distinguished from the fundamental rights recognised by the Charter. The reason is that whilst public policy and public security grounds may justify measures depriving Union citizens of the genuine enjoyment of the substance of rights conferred by virtue of that status, the same does not hold true regarding the measures depriving a fundamental right of its essence.[36] Moreover, other authors have maintained that citizenship is a powerful tool for the promotion and protection of rights, but it does not serve the same purpose as fundamental rights. Thus, we should resist conflating the two.[37]

The CJEU’s ruling in Wojewoda Mazowiecki does not abandon that cautious line. Hence, it does not elevate the right to respect for family life into an autonomous ground detached from free movement. Rather, it operates within the framework of Article 21(1) TFEU and reinforces the effectiveness of that provision by reading it in conjunction with Articles 7 and 21(1) of the Charter. 

In that regard, a basic but pressing question arises as to whether a Union citizen can rely on this status to obtain recognition of their civil status and its legal effects, in an area traditionally reserved to Member States? At first glance, the CJEU’s present ruling could be interpreted as giving an affirmative answer to this question. However, the CJEU has not disregarded the margin of discretion that Member States retain in this area but has instead set limits to it.  In casu, Poland has failed to provide any legal framework whatsoever for the recognition and protection of same-sex couples, which has resulted in the inability of the persons concerned to regulate fundamental aspects of their private and family life.[38]

Hence, Member States retain discretion in choosing the procedures through which they recognise marriages entered into by Union citizens exercising their right to move and reside within the EU, on the condition that the procedures they choose must comply with Article 21 of the Charter, which prohibits discrimination on grounds of sexual orientation.[39] That is because the right to have a marriage concluded in another Member State recognised may be undermined by the discretion enjoyed by the competent authority in the context of the procedure for recognising a marriage certificate, since that discretion may lead to differing approaches to such recognition, which may cause serious inconvenience at administrative, professional and private levels.[40]

It follows that, where a Member State opts for a unique procedure for recognising marriages concluded by mobile Union citizens, such as the transcription of the marriage certificate, it must apply that procedure without distinction between same-sex and opposite-sex marriages.

At the same time, if a Member State fulfils its obligations by offering alternative procedures or mechanisms for recognising marriages entered into by Union citizens in another Member State, and if those alternatives respect the principle of non-discrimination guaranteed by Article 21 of the Charter, that State is not bound by the obligation identified in the present judgment, namely to transcribe the marriage certificate obtained abroad. In other words, the CJEU does not impose a general duty on Member States to recognise in their domestic legal systems all marriages concluded in other Member States, provided that a non-discriminatory alternative mechanism for recognition exists.

As a result, the obligation to transcribe a marriage certificate obtained abroad is not an automatic entitlement flowing directly from Union citizenship; rather, it depends significantly on the legal framework of the Member State in which recognition is sought. Somewhat paradoxically, Union citizens may find themselves better protected in Member States that do not provide any alternative procedure for recognising marriages than in those Member States that recognise their marriage, while making use of an alternative procedure, e.g. downgrading the relationship from a marriage to a registered partnership or civil union. 

For example, two mobile Union citizens may have concluded a same-sex marriage in Member State X. They subsequently move to and reside in Member State A, which has established a legal framework that does not recognise same-sex marriages as such but instead treats them as registered partnerships, thereby according to the couple, the rights attached to registered partners rather than those of married spouses. By contrast, if the same couple were to move to Member State B, which neither recognises same-sex marriages nor provides any alternative legal framework allowing them to live as a couple, then, according to the present ruling in Wojewoda Mazowiecki, Member State B would be obliged to recognise the same-sex marriage and grant the couple the rights associated with married spouses. Consequently, for these Union citizens, moving to Member State B would be more advantageous than moving to Member State A, since the former would be required to recognise them as married spouses, whereas the latter would effectively downgrade their status to that of registered partners, typically entailing a more limited set of rights.

Nevertheless, it is undeniable that the CJEU’s recent case law increasingly moves toward the protection of Union citizens’ fundamental rights, while at the same time expanding the practical reach of Union citizenship and free movement, more concretely by extending the obligation of recognition to the legal effects of civil status. Yet it would be an overstatement to claim that the CJEU is already transforming civis europaeus sum into a legal reality, or that Union citizens can fully rely on their status and mobility rights to claim recognition of same-sex marriages on the basis of their right to family life, unconditionally across the Union. This position corresponds to the AG Richard De la Tour’s reservation about the likelihood of the CJEU moving 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. Such an approach would imply that the CJEU would rely on the right to respect for family life as an autonomous right incorporated into the free movement framework and detached from any derived right.[41] And according to the AG, the CJEU has not embraced such an approach even in cases where the best interests of the child had to be paramount.[42]

Finally, the CJEU’s statement that Articles 20 and 21(1) TFEU read in the light of Articles 7 and 21(1) of the Charter are sufficient in themselves to confer directly effective rights underscores this point.[43] The CJEU affirms the normative strength of primary law, in the sense that Treaty provisions and the Charter have direct effect and can establish directly enforceable rights for Union citizens without needing additional EU laws to be adopted. At the same time, it operated within the existing constitutional framework of Union citizenship, which is built around the requirement of a cross-border situation and the division of competences between the Union and the Member States. The recognition of civil status thus remains subject to a balance between free movement, the constraints of national law, and the principle of non-discrimination. In that sense, the Wojewoda Mazowiecki judgment consolidates and refines the Union citizenship doctrine rather than revolutionising it.

4.   The CJEU redraws the boundaries of recognition of civil status components: moving beyond the free movement purpose

In its earlier case law, i.e. Coman and Pancharevo judgments, concerning respectively the recognition of same sex marriage between a Union citizen and a third-country national and the recognition of same-sex parenthood, the CJEU ruled that Member States were required to recognise these civil status elements only for free movement purposes, such as granting a residence right. Beyond that functional requirement, Member States were not obliged to recognise any of the substantive legal effects flowing from the marriage or a parent-child relationship.[44]

In Coman, the case involved a married same-sex couple, Mr. Coman (a dual Romanian-US national) and Mr. Hamilton (a US national), who got married in Belgium. They wished to settle permanently in Romania together, relying on the family reunification rights that Mr Coman enjoys under EU free movement law, but Romanian authorities refused to recognise their marriage. In Pancharevo, the case involved a same-sex couple, V.M.A., a Bulgarian national, and K.D.K., a UK national, both resided in Spain, where their daughter was born. The Bulgarian mother sought to have the Bulgarian authorities issue a birth certificate and identity documents for the child recognising both mothers.[45]

In both cases, the CJEU decided that Member States are obliged to recognise, for the purposes of free movement rights, the familial ties established in another Member State between same-sex spouses and between a child and her/his parents who are a same-sex couple. In this way, the CJEU aimed to find a balance between personal and family interests and Member States' competences on a person's civil status, while adopting a functional approach that allows for the Union citizens concerned to exercise their rights of free movement. [46] However, the CJEU did not impose any obligation on Member States to recognise same-sex marriage or same-sex parenthood for all purposes under national law, including the legal effects that such relationships may produce in areas such as inheritance, taxation, social security or family law more broadly. 

In 2024, a notable shift occurred with the CJEU’s Mirin judgment.[47] It concerned M.-A.A., born in Romania and registered female at birth, who moved to the United Kingdom and acquired UK nationality in 2016. Identifying as male, changed his name and title through the deed poll procedure, later obtaining a Gender Recognition Certificate in 2020. Despite these changes being reflected in UK official documents, Romanian authorities refused to amend his birth certificate to reflect his male gender identity. The referring Romanian court asked the CJEU whether such a refusal is compatible with EU law. 

The case involved two changes in the civil status, i.e. name and gender identity of a Union citizen, where the latter was relatively novel for the CJEU’s jurisprudence. AG Richard de la Tour, in his analysis, treated these components separately, while applying by analogy the case law on names, but resulting in different outcomes for each of them.[48] According to him, the CJEU should rule on a full recognition of the name of the applicant, similarly to what it did in Garcia Avello[49] and Grunkin and Paul,[50] where it established a general duty to recognise the name of the concerned persons, without any limitation to the legal consequences. When it came to the recognition of the change of gender identity, his Opinion was rather nuanced. He opined that gender identity acquired in another Member State should be recognised, however, only for the purpose of exercising free movement rights and issuing identity documents.[51] Such a distinction was not carried out by the CJEU.[52] It ruled that in the interpretation of EU law, Member States are obliged to recognise and enter in the birth certificate of a national of that Member State the change of first name and gender identity lawfully acquired in another Member State, when exercising free movement rights.[53]

Although the judgment was anchored in free movement considerations, it did not explicitly confine the obligation of recognition to free movement purposes.[54] The same holds true for the CJEU’s reasoning in Wojewoda Mazowiecki, where the absence of a clear limitation to mobility purposes opens the possibility that recognition should extend beyond the sphere of free movement and influence the broader legal position of Union citizens within the host Member State. In addition, the CJEU appears to have intended to clarify that recognition should encompass the legal effects of the marriage, highlighting the obstacles same-sex spouses encountered in social security, public health insurance, and property law due to Poland’s non-recognition.[55] As stated in paragraph 52 of the Wojewoda Mazowiecki judgment, the CJEU emphasised that refusal to recognise the marriage prevented those Union citizens, who had established or strengthened a family life while residing in the host Member State as married persons, from fully pursuing that family life and simultaneously benefiting from that legal status, in Poland, and this was capable of impeding their free movement rights. 

In Coman, which dealt with a same-sex marriage between a Union citizen and a third-country national, the CJEU refrained from addressing the effects of the marriage. The CJEU explicitly held there that the refusal of a Member State to recognise, for the sole purpose of granting a derived right of residence to a third-country national, the marriage of that national to a Union citizen of the same sex, concluded, during the period of their genuine residence in another Member State, in accordance with the law of that State, may interfere with the exercise of the right conferred on that citizen by Article 21(1) TFEU.[56] The Coman judgment spurred a lot of academic debate regarding its scope, as the CJEU did not clarify whether same-sex couples would be able to invoke their marriage status, recognised for residence purposes, for other legal matters such as taxation, marital property matters, inheritance law and other related rights.[57] The prevailing view in the academic literature was that the CJEU adopted a cautious approach, limiting the obligation of recognition to free movement purposes and refraining from imposing any duty on Member States to recognise the legal effects of the marriage, thereby leaving them discretion to determine whether, and which, substantive rights should be accorded to those spouses.[58]

Hence, the Wojewoda Mazowiecki judgment can be read as the CJEU’s response to the issues left open by Coman. Consequently, it can be implied that the Coman judgment was confined to its particular facts and the CJEU’s ruling focused only on the residence of the third-country spouse within the EU.[59] Given the comparable nature of the cases at issue, namely host Member States neither recognised same-sex marriage nor provided an accommodating legal mechanism, a reading according to which Coman conferred limited recognition only for free movement purposes and excluded the recognition of the legal effects of the marriage, whileWojewoda Mazowiecki provides for full recognition of both the marriage and its effects, would undermine the coherence and consistency of the CJEU’s reasoning.

When read together, these two judgments allow us to extract some key insights from the CJEU’s approach. First, when there is a same-sex marriage between a Union citizen and a third-country national concluded in the EU according to the law of the State concerned, that third-country national should be treated as the ‘spouse’ of the Union citizen in the light of Directive 2004/38/EC for free movement purposes and residence, thereby gaining a derived right of residence in the EU territory. 

Second, in both situations, whether a same-sex marriage is between a Union citizen and a third-country national or between two Union citizens, Member States that do not recognise same-sex marriages must provide an alternative legal mechanism that complies with Article 21 of the Charter, ensuring that the couple enjoys rights equivalent to those arising from marriage, e.g. by recognising the union as a registered partnership and granting the couple all associated legal benefits and rights. 

Third, if a same-sex marriage is sought to be recognised in a Member State that does not recognise such marriages but offers alternative mechanisms, those mechanisms should be equivalent to those applied to heterosexual couples. Where they fail to do so and thus infringe Article 21 of the Charter, that Member State is obliged to recognise the marriage in the same way as opposite-sex marriages. Therefore, synthesising the second and third points, where a Member State chooses to recognise marriages concluded abroad by transposing them into the form of registered partnerships, it must be applied in a non-discriminatory manner to both opposite-sex and same-sex couples. 

Fourth, Member States that do not recognise same-sex marriages and have not established an alternative mechanism for the recognition of a same-sex marriage concluded in another Member State are obliged to recognise that marriage in the same way as a marriage between opposite-sex spouses, and grant the same-sex spouses the same rights and legal benefits arising from such opposite-sex marriage. 

Nevertheless, one question remains as to whether equivalent treatment of same-sex marriages and opposite-sex marriages entail identical treatment in all respects. If a Member State, for example, were required to fully recognise a same-sex marriage concluded in another Member State, would this recognition automatically extend to parentage rights equivalent to those arising from an opposite sex marriage? This question is particularly pertinent in light of the difficulties encountered by the EU Parenthood Proposal[60], which illustrates the continuing sensitivity surrounding the extension to same-sex couples of parental rights and legal presumptions traditionally linked to opposite-sex parenthood.

5.   National identity and public policy

Traditionally, as is often the case in judgments concerning the recognition of civil status, which remains within the competence of the Member States, the CJEU devoted several paragraphs to the issue of national identity and public policy in the Wojewoda Mazowiecki judgment.[61] Yet, these considerations could not justify the non-recognition of a civil status component, namely, same-sex marriage between Union citizens. Consequently, the extent to which national identity and public policy can justify the non-recognition of a Union citizen’s civil status remains vague.

According to paragraph 57 of the Wojewoda Mazowiecki judgment, Polish authorities had refused the transcription of the marriage certificate, issued in Germany, in the Polish civil register on the grounds that Polish law does not allow marriages between persons of the same sex and that such transcription would be contrary to the fundamental principles of the Polish legal order. Proceeding from this premise, the CJEU reiterated that Article 4(2) TEU requires the EU to respect the national identity of the Member States, inherent in their fundamental structures, both political and constitutional. Additionally, the CJEU held that the concept of ‘public policy’ as justification for a derogation from a fundamental freedom must be interpreted strictly and consequently cannot be determined unilaterally by each Member State without control by the EU institutions. Public policy may be relied on only if there is a genuine and sufficiently serious threat to the fundamental interests of society,[62] a threshold the CJEU rarely finds satisfied in the context of cross-border status recognition. 

The CJEU’s analysis reveals a familiar judicial approach: it held that the obligation to recognise a same-sex marriage lawfully concluded between Union citizens in a host Member State, for the purposes of enabling their return and continuation of family life in their Member State of nationality, does not undermine the institution of marriage as defined by national law. Accordingly, such recognition does not infringe national identity or public policy. The CJEU further recalled that any restriction on free movement must comply with the fundamental rights guaranteed by the Charter, notably Articles 7 and 21(1).[63]

By addressing the national identity and public policy issues in its judgments, the CJEU highlights the tension between the objectives of EU integration and the protection of individual rights, on the one hand, and the preservation of Member States’ national identity, on the other. However, the CJEU reasoning leaves open questions as to the precise contours of national identity and public policy. Is the reference to national identity merely symbolic,[64] or could these concepts ever legitimately be relied upon by Member States to justify the non-recognition of a family law institution, such as same-sex marriage, which is not provided for in their national legal order?

So far, it appears that the argument invoked by Member States, namely that same-sex marriage is not provided for in their national law, is a blanket ban which cannot justify a refusal to recognise a same-sex marriage lawfully concluded in another Member State. Such a blanket approach fails to take into account the obligations arising under Union law, in particular the requirements of free movement and non-discrimination, and therefore, cannot, without further justification, prevail over the rights derived from Articles 20 and 21 TFEU. 

To evaluate the limits of this defence, one must look to Sayn-Wittgenstein, [65] the first judgment of the CJEU and one of the few,[66] where a Member State’s legal expression of a distinct national identity was accepted as a justified restriction of the citizen’s rights on free movement, in connection with Article 4(2) TEU.[67]

The case concerned an Austrian national who, after being adopted in Germany, lawfully acquired and used a surname which contained a nobility title and was registered in both Germany and Austria. Austrian authorities later removed the noble title from her name in accordance with constitutional principles of equality and the abolition of nobility. The CJEU was asked whether Article 21 TFEU precludes the refusal to recognise a surname acquired in another Member State that includes a nobility title. The CJEU ruled that Article 21 TFEU does not preclude a Member State from refusing to recognise a surname containing a prohibited nobility title, provided the refusal is justified on public policy grounds and is proportionate.[68]

The success of the Austrian defence suggests that a Member State’s chances of success are significantly higher when its national identity claim exhibits convergence with the foundational values of the Union itself. The CJEU analysed the national measure which restricted free movement rights through the lens of public policy. It held that the public policy concerns were linked to the implementation of the principle of equal treatment, which was a national constitutional principle. Moreover, the principle of equal treatment is also enshrined in Article 20 of the Charter, and therefore, the measure was compatible with principles of EU law. 

In Wojewoda Mazowiecki, Poland’s defence failed precisely because it lacked this reinforcing link to a shared Union value. Unlike the republican equality in Sayn-Wittgenstein, the refusal to recognise same-sex marriage was viewed as a move that conflicted with, rather than supported, the Charter’s non-discrimination principles. Thus, Sayn-Wittgenstein judgment provides a glimpse of what may fall under national identity or public policy concerns in the context of recognition of civil status components. Despite its outcome, the Sayn-Wittgenstein judgment was criticised as a lost opportunity for the CJEU to rely directly on Article 4(2) TEU, decoupled from the public policy, explicitly recognising national constitutional law while at the same time reaffirming the primacy of EU law.[69]

Returning to Wojewoda Mazowiecki, the effects of the recognition of marriage are broader than in earlier cases in which the CJEU rejected arguments based on national identity by stressing the limited scope of the recognition requested.[70] The CJEU could have strengthened its authority by providing a more thorough analysis and elaboration on the requirements to respect national identity and its relationship to public policy.[71]

That said, the judgment confirms an important point again. A national measure invoked on grounds of national identity or public policy can justify opposition to the recognition of a civil status component only if it is compatible with EU law and, potentially, if it reflects a principle also recognised within the EU legal order, as was the case with the principle of equality in Sayn-Wittgenstein. In Wojewoda Mazowiecki, by contrast, the national legislation permitted the transcription of opposite-sex marriages but excluded same-sex marriages. Such differential treatment was incompatible with EU law, as it infringed the principle of non-discrimination on grounds of sexual orientation laid down in Article 21 of the Charter.

6.   Conclusion

The Wojewoda Mazowiecki judgment marks a significant step in the CJEU’s case law on Union citizenship and civil status recognition. The CJEU has reaffirmed, in this judgment, its commitment to protecting individual rights by assessing Union citizenship and free movement in conjunction with the fundamental rights guaranteed by the Charter. 

The judgment extends the civil status recognition by requiring full recognition of same-sex marriages between Union citizens, including the legal effects of the marriage, thereby moving beyond the limited free movement rationale established in Coman.Nevertheless, while the obligation to recognise a same-sex marriage and its legal effects applies to all Member States within the scope of EU law, it will have the most significant practical impact in Member States that either do not recognise same-sex marriages and provide no alternative legal framework, or those that offer alternative recognition procedures that infringe fundamental rights, in particular Articles 7 and 21 of the Charter. 

While the notions of national identity and public policy remain somewhat abstract, the CJEU reaffirmed that measures based on these grounds must comply with EU law.

Although the obligation of recognition arising from the judgment does not resolve all outstanding questions, the Wojewoda Mazowiecki judgment is of significant doctrinal relevance, as it further develops the CJEU’s case law on Union citizenship and civil status recognition, clarifying the limits that free movement and fundamental rights place on Member States’ discretion in the recognition of civil status in cross-border situations.