Some EU countries are not implementing the Brussels guidelines for 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 European Court of Justice (ECJ) opinion.
The ECJ’s opinion suggests that member states are obligated to recognize same-sex partnerships formed in the EU, even in the absence of a corresponding legal framework in the country of residence. In a recent case, the ECJ opinion concluded that Poland must register a same-sex marriage between a German and a Pole in the Polish civil registry, even though Poland does not recognize same-sex marriage.
The two men had married in Germany and, after moving to Poland, requested the registration of their marriage in the Polish civil registry. Their request was rejected, citing the absence of a “marriage for all” in Poland. The ECJ opinion, however, concluded that the two men have a right to the recognition of their same-sex marriage in Poland. The Polish authorities are thus obligated to register the marriage.
It is expected that the ECJ will follow the opinion in its upcoming ruling, effectively introducing same-sex marriage in Poland through a court ruling, bypassing the Polish parliament. The ECJ’s decision once again restricts the sovereign rights of EU member states, as EU law takes precedence over national laws. The ECJ’s binding decisions, which must be implemented by EU states, are seen as a significant democratic deficit in the EU.