Several EU countries are not yet implementing the Brussels guidelines on recognizing same-sex partnerships. Poland, along with Hungary, Latvia and Lithuania, still does not recognize same-sex marriage. As a result, same-sex partnerships formed in the EU outside of the country of residence are generally not recognized. This is set to change, according to a report by the European Court of Justice (ECJ).
The ECJ’s report concludes that EU member states are obligated to recognize same-sex partnerships formed in another EU country, even if the country of residence does not have a corresponding legal framework in place. In a specific case, the report found that Poland is required to register a same-sex marriage between a German and a Pole in the Polish civil registry, even though Poland does not have a law allowing same-sex marriage.
The two men in question had married in Germany and, upon moving to Poland, requested the registration of their marriage in the Polish civil registry. The request was denied, citing the lack of a “marriage for all” law in Poland. The report, however, concluded that the men have a right to have their same-sex marriage recognized in Poland. The Polish authorities are under obligation to register the marriage. It is expected that the ECJ will follow the argument of the report in its upcoming ruling.
The ECJ’s decision will, in effect, introduce same-sex marriage in Poland through a court ruling, bypassing the Polish parliament. The ECJ’s decision once again limits the sovereign rights of EU member states. In general, EU law takes precedence over national law and the ECJ’s decisions are binding and must be implemented by EU member states. The ability of judges to set the law through their decisions is seen as one of the major democratic deficits of the EU.