1 This request for a preliminary ruling concerns the interpretation of Article 20(2)(a) and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of Article 2(2) of 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35).
2 The request has been made in proceedings between Mr Jakub Cupriak-Trojan and Mr Mateusz Trojan (together, ‘the spouses at issue in the main proceedings’) and the Wojewoda Mazowiecki (Governor of Masovia Province, Poland) concerning a request that their marriage certificate issued in Germany be recognised and transcribed in the Polish civil register.
3 As set out in Article 4(2) TEU: ‘The [European] Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’
4 Article 20 TFEU provides: ‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; … These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’
5 Article 21(1) TFEU provides: ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’
6 Article 7 of the Charter, headed ‘Respect for private and family life’, provides: ‘Everyone has the right to respect for his or her private and family life, home and communications.’
7 Article 9 of the Charter, headed ‘Right to marry and right to found a family’, provides: ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’
8 Article 21 of the Charter, headed ‘Non-discrimination’, provides, in paragraph 1 thereof: ‘Any discrimination based on any ground such as … sexual orientation shall be prohibited.’
9 As set out in Article 1(a) of Directive 2004/38, that directive lays down, inter alia, the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members.
10 Article 2(2) of Directive 2004/38 defines the concept of ‘family member’ for the purposes of that directive. In accordance with Article 2(2)(a) of that directive, family member includes ‘the spouse’.
11 As set out in Article 18 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Constitution’): ‘Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.’
12 Article 47 of the Constitution provides: ‘Everyone has the right to legal protection of his or her private and family life, dignity and reputation and the right to make decisions concerning his or her personal life.’
13 Article 1(1) of the ustawa - Kodeks rodzinny i opiekuńczy (Law establishing the Family and Guardianship Code) of 25 February 1964 (Dz. U. No 9, item 59), in the version applicable to the dispute in the main proceedings, provides: ‘Marriage is contracted when a man and a woman, who are simultaneously present, declare before the Head of the Civil Registry Office that they are joined by the bonds of marriage.’
14 As set out in Article 3 of the ustawa - Prawo o aktach stanu cywilnego (Law on civil status records) of 28 November 2014 (Dz. U., item 1741), in the version applicable to the dispute in the main proceedings (‘the Law on civil status records’): ‘Civil status records constitute the sole proof of the facts recorded therein; they can be proven to be false only in legal proceedings.’
15 Article 104 of that law provides: ‘1. A foreign civil status document, constituting proof of an event and of its registration, may be entered in the civil register by way of transcription. 2. Transcription consists in a faithful and literal transfer of the content of the foreign civil status document, both in linguistic and in formal terms, without any change in the spelling of the first names and surnames of the persons designated on the foreign civil status document. … 5. Transcription shall be compulsory if the Polish citizen concerned by a foreign civil status document has a civil status record confirming previous events which was drawn up in the Republic of Poland and if he or she requests that actions be performed with regard to the registration of civil status or applies for a Polish identity document or a PESEL number (identification number for natural persons who are Polish nationals). …’
16 Article 105(1) of that law is worded as follows: ‘The content of the foreign civil status document shall be transcribed in the civil register by means of a material and technical action; an entry concerning the transcription shall be made in the civil status record.’
17 Article 107 of that same law provides: ‘The Head of the Civil Registry Office shall refuse to transcribe a document where: … (3) transcription would be contrary to the fundamental principles of the legal order of the Republic of Poland.’
18 Article 7 of the ustawa - Prawo prywatne międzynarodowe (Law on private international law) of 4 February 2011 (Dz. U. No 80, item 432), in the version applicable to the dispute in the main proceedings, provides: ‘Foreign law shall not apply if the effects of its application would be contrary to the fundamental principles of the legal order of the Republic of Poland.’
19 Article 1138 of the ustawa - Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964 (Dz. U. No 43, item 296), in the version applicable to the dispute in the main proceedings, provides: ‘Foreign public documents shall have the same probative value as Polish public documents. …’
20 Mr Cupriak-Trojan, who has dual Polish and German nationality, and Mr Trojan, a Polish national, were married in Berlin (Germany) on 6 June 2018. It is apparent from the order for reference that, at the time when the request for a preliminary ruling was made, they were residing in Germany, but wished to go to Poland and reside there as a married couple.
21 Upon their marriage, Mr Cupriak-Trojan took Mr Trojan’s surname as the second part of his own surname. At the request of Mr Cupriak-Trojan, the Kierownik Urzędu Stanu Cywilnego m.st. Warszawy (Head of the Civil Registry Office, Warsaw, Poland) adopted a decision whereby his surname was amended in the same way in Poland.
22 In addition, Mr Cupriak-Trojan submitted to the Head of the Warsaw Civil Registry Office a request that the marriage certificate issued in Germany be transcribed in the Polish civil register. By decision of 8 August 2019, that request was refused on the ground that Polish law does not provide for marriage between persons of the same sex and that, as a result, the transcription of such a foreign marriage certificate would be contrary to the fundamental principles enshrined in the legal order of the Republic of Poland.
23 The spouses at issue in the main proceedings challenged that decision before the Governor of Masovia Province. The latter confirmed that decision and also found that the German form of the marriage certificate was inconsistent with its Polish equivalent. He considered that, were the marriage certificate issued in Germany to be transcribed, the Head of the Warsaw Civil Registry Office would have to enter the first names and surnames of the two men, one of whom would be recorded under the heading ‘woman’. However, since, in Poland, a marriage can be concluded only between a man and a woman, it would be unlawful to enter, in the civil register, two men as spouses, irrespective of how the various fields in the template certificate are labelled.
24 The spouses at issue in the main proceedings brought an action against the decision of the Governor of Masovia Province before the Wojewódzki Sąd Administracyjny w Warszawie (Provincial Administrative Court, Warsaw, Poland), arguing, inter alia, that the obligation to protect marriage as a union between a man and a woman, as laid down in Article 18 of the Constitution, does not mean that registration of a marriage concluded abroad between two persons of the same sex is prohibited.
25 By judgment of 1 July 2020, that court dismissed that action on the ground, inter alia, that the transcription of a marriage certificate, such as that at issue in the main proceedings, would be contrary to the fundamental principles enshrined in the Polish legal order, within the meaning of Article 107(3) of the Law on civil status records. To adopt the line of reasoning of the spouses at issue in the main proceedings would lead to the co-existence, in the national legal order, of marriages concluded between a woman and a man and those concluded between persons of the same sex, which is not provided for either by the Constitution or by national law, in particular the Law establishing the Family and Guardianship Code in the version applicable to the dispute in the main proceedings. That court also held that the refusal to transcribe such a marriage certificate did not infringe Articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), read in conjunction with Article 12 of that convention, or Article 21(1) TFEU. Indeed, according to that court, the dispute in the main proceedings concerns a question of civil status unrelated to the right to move and reside within a Member State.
26 The spouses at issue in the main proceedings brought an appeal on a point of law against that judgment before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which is the referring court. They submit that the failure to recognise their marriage constitutes a disproportionate restriction on their freedom to move and reside within the territory of the Member States, owing to the different assessment of their civil status in Poland and Germany. That discourages them, or even prevents them, from exercising that freedom of movement. In particular, the prospect of living under two different civil statuses, namely as married persons in Germany and as unmarried persons in Poland, and of not being able to pursue, in Poland, the same private and family life they led in Germany, is likely to deter them from residing in the territory of the Republic of Poland.
27 The referring court has doubts as to the interpretation of Article 20(2)(a) and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter.
28 That court observes that, in Poland, transcribing a foreign civil status document consists in the faithful and literal transfer of the content of that document, in terms of both language and form, into the Polish civil register, without any interference with the spelling of the first names and surnames of the persons designated in that document. Its content is transcribed in the civil register by means of a material and technical action, with a note being made in the civil status record about the transcription. According to that court, transcription generates a Polish civil status record which is ‘detached’ from the original record registering the event, the subsequent status of which in the Polish legal order is independent of the status of the foreign record. In accordance with Article 3 of the Law on civil status records, the direct legal effect of the transcription of a foreign civil status record is the creation of a Polish civil status record which has the same probative value as civil status records drawn up in Poland.
29 The referring court notes that questions of civil status and the related rules on marriage are matters coming within the competence of the Member States. It questions, however, whether the difference between the rules applicable in Germany and those applicable in Poland results in a restriction of the freedom of every citizen of the Union to move and reside within the territory of the Member States.
30 In that context, referring to the judgment of 24 November 2016, Parris (C‑443/15, EU:C:2016:897, paragraph 59), the referring court points out that Member States have discretion as to whether or not to make provision in their national law for marriage between persons of the same sex. However, according to the Court’s case-law, Member States must, when exercising their competence, comply with EU law and, in particular, the right to freedom of movement and residence.
31 According to the Court’s line of authority deriving from the judgments of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385), and of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, EU:C:2021:1008), the rights which nationals of Member States enjoy under EU law also include the right to lead a normal family life, together with their family members, both in the host Member State and in the Member State of which they are nationals when they return to that Member State. Consequently, the referring court is asking, inter alia, about the restriction of the right of the spouses at issue in the main proceedings to lead a family life in the Member State of which they are nationals, in this case in Poland, as a married couple, and of the enjoyment of the rights associated therewith.
32 In that regard, the referring court notes that, to date, in accordance with national case-law, EU law does not lay down an absolute obligation to transcribe in the national civil register documents relating to civil status drawn up in other Member States, including marriage certificates, and that the refusal to transcribe a foreign civil status document may be justified by the application of Article 107(3) of the Law on civil status records. The national courts have also held that the introduction of marriage between persons of the same sex into Polish national law through transcription in the civil register may raise questions as to whether such a union may be treated in the same way as a marriage as provided for by Polish civil law. However, the referring court also observes that the national courts have not yet carried out a thorough examination of those questions in the context of the freedom to move and reside, taking into account the fundamental rights enshrined in Article 7 and Article 21(1) of the Charter.
33 In that regard, the referring court refers to the case-law of the European Court of Human Rights on the legal recognition of unions between persons of the same sex in the context, in particular, of the right to respect for private and family life, enshrined in Article 8 ECHR.
34 The referring court envisages two possible ways of resolving the dispute in the main proceedings, and is inclined toward the first. On the one hand, it considers that it could be justified to interpret Article 20(2)(a) and Article 21(1) TFEU as meaning that a refusal to transcribe, similar to that at issue in the main proceedings, constitutes a failure by the Member State concerned to respect the right of Union citizens to lead a family life as married persons whose marriage certificate has been entered in the civil register of another Member State, as well as evidence of discrimination based on sex and sexual orientation. According to the referring court, it follows that such a refusal prevents those persons from fully exercising their right to move and reside freely within that Member State.
35 On the other hand, those two provisions could be interpreted as not precluding a refusal to transcribe, such as that at issue in the main proceedings, in so far as that refusal does not deprive Union citizens of their right to move and reside freely within the Member State which has refused such transcription. In the present case, a foreign civil status document issued in another Member State, including a document certifying a marriage, has the same probative value as official documents issued by the Polish authorities. Apart from the requirement that the document be translated into the national language, there are no further limitations on the use of such an official document drawn up in another Member State.
36 In those circumstances, the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of the [Charter] and Article 2(2) of Directive [2004/38,] be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State does not provide for same-sex marriage?’
37 As a preliminary point, it should be noted that the question referred for a preliminary ruling concerns Articles 20 and 21 TFEU, read in the light of the Charter and Article 2(2) of Directive 2004/38. However, the dispute in the main proceedings concerns the request made by the spouses at issue in the main proceedings to have their marriage certificate that was issued in Germany transcribed in the Polish civil register in order to have their status as married persons recognised in Poland, which is the Member State of which they are nationals. The subject matter of that dispute does not, therefore, come within the scope of that directive, 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 (see, to that effect, judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 20 and the case-law cited).
38 In those circumstances, it must be held that, by its question, the referring court is asking, in essence, whether Article 20 and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter, must be interpreted as precluding legislation of a Member State, which, on the ground that the law of that Member State does not authorise marriage between persons of the same sex, does not permit the recognition of a marriage between two same-sex nationals of that Member State lawfully concluded in the exercise of their freedom to move and reside within another Member State, in which they have created or strengthened a family life, or the transcription for that purpose of the marriage certificate in the civil register of the first Member State.
39 It should be noted that Mr Cupriak-Trojan, who has dual Polish and German nationality, and Mr Trojan, as a Polish national, both enjoy the status of citizen of the Union under Article 20(1) TFEU.
40 That status of citizen of the Union constitutes the fundamental status of nationals of the Member States (judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31, and of 29 April 2025, Commission v Malta (Citizenship by investment), C‑181/23, EU:C:2025:283, paragraph 92).
41 Article 20(2) and Articles 21 and 22 TFEU attach a series of rights to that status. In accordance with Article 20(2)(a) and Article 21(1) TFEU, citizenship of the Union confers on each Union citizen, inter alia, a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the FEU Treaty and the measures adopted for their implementation (judgments of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 29; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 70; and of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 52).
42 As is apparent from the Court’s case-law, a national of a Member State who, in his or her capacity as a Union citizen, has exercised his or her freedom to move and reside within a Member State other than his or her Member State of origin, may rely on the rights pertaining to Union citizenship, in particular the rights provided for in Article 21(1) TFEU, including, where appropriate, against his or her Member State of origin (judgments of 23 October 2007, Morgan and Bucher, C‑11/06 and C‑12/06, EU:C:2007:626, paragraph 22, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 31).
43 The rights which nationals of Member States enjoy under that provision include the right to lead a normal family life, together with their family members, including their spouse, both in the host Member State and in the Member State of which they are nationals when they return to that Member State (see, to that effect, judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 52, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraphs 32 and 34).
44 In that regard, in so far as concerns family members of a Union citizen who are third-country nationals, the Court has held that, where, during the genuine residence of a Union citizen in a Member State other than that of which he or she is a national, pursuant to and in conformity with the conditions laid down by Directive 2004/38, family life is created or strengthened in that Member State, the effectiveness of the rights conferred on the Union citizen by Article 21(1) TFEU requires that that citizen’s family life in that Member State be able to continue on returning to the Member State of which he or she is a national, which entails, inter alia, an obligation on the latter Member State to grant a derived right of residence to the family member concerned who is a third-country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the Member State of which he or she is a national in order to exercise his or her right to reside, under Article 21(1) TFEU, in another Member State or from returning to his or her Member State of origin after having exercised that right, because of the lack of certainty that he or she will be able to pursue in that Member State the family life created or strengthened in the host Member State (see, to that effect, judgments of 11 December 2007, Eind, C‑291/05, EU:C:2007:771, paragraphs 35 and 36, and of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54).
45 The Court has previously had occasion to find that there is such an obligation to grant a derived right of residence to the spouse of a Union citizen, in a situation where that spouse was 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 (see, to that effect, judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraphs 53 and 56).
46 As regards the situation of two Union citizens who, as in the case in the main proceedings, live together as a couple in the host Member State and have concluded a marriage there in accordance with the law of that host Member State, the effectiveness of the rights which those citizens derive from Article 21(1) TFEU a fortiori requires those citizens to have the certainty to be able to pursue in their Member State of origin the family life that they have created or strengthened in the host Member State, in particular by virtue of their marriage.
47 Admittedly, as EU law currently stands, the rules on marriage come within the competence of the Member States, and EU law cannot detract from that competence. The Member States are thus free to decide whether or not to allow marriage for persons of the same sex under their national law (see, to that effect, judgments of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 37, and of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 52).
48 Nevertheless, in exercising that competence, each Member State must comply with EU law, in particular the provisions of the FEU Treaty on the freedom conferred on all Union citizens to move and reside within the territory of the Member States, by recognising, for that purpose, the civil status of persons that has been established in another Member State in accordance with the law of that other Member State (judgments of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, paragraph 52, and of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 53).
49 In the present case, it is apparent from the information provided by the referring court that the spouses at issue in the main proceedings are asking the Polish authorities to transcribe in the Polish civil register the marriage certificate they obtained in the exercise of their freedom to move and reside in Germany, for the purposes of that marriage being recognised in Poland. That request has been refused on the ground that Polish law does not allow marriage between persons of the same sex and therefore does not permit such transcription.
50 The referring court has doubts as to the consequences of such a refusal on whether those spouses will be able to pursue, in Poland, the family life that was created or strengthened in Germany by virtue of their marriage. In that regard, and subject to verification by that court, those spouses stated, in their observations submitted to the Court, that, during a certain period when Mr Trojan was living and working in Poland, Mr Cupriak-Trojan was unemployed and not covered by public health insurance, whereas he would have been if the effects of their marriage had been recognised in Poland. Similarly, the request to update Mr Cupriak-Trojan’s surname in the land register was authorised by a Polish court in respect of one of the properties belonging to him, but was refused by another Polish court in respect of a different property, on the ground that a certificate of marriage between persons of the same sex could not be accepted as a basis for such a request.
51 In that regard, it must be held that the refusal, by the authorities of a Member State of which two Union citizens of the same sex are nationals, to recognise the marriage which those Union citizens have lawfully concluded pursuant to the procedures laid down for that purpose in another Member State in which those Union citizens have exercised their freedom to move and reside, is likely to hinder the exercise of the right enshrined in Article 21 TFEU, since such a refusal is liable to cause serious inconvenience for those citizens at administrative, professional and private levels (see, by analogy, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 55 and the case-law cited).
52 In particular, such a refusal prevents those Union citizens, who have created or strengthened a family life while residing in the host Member State by living there as married persons, from pursuing that family life and at the same time benefiting from that legal status, which is certain and can be relied on against third parties, and forces them to live as unmarried persons after their return to their Member State of origin.
53 Therefore, if that marriage is not recognised in the Member State of origin, there is a genuine risk that those citizens will face serious obstacles in regulating their family life upon their return to that Member State, in so far as they will be unable, in many aspects of everyday life - both in the public and in the private spheres - to rely on their marital status, even though that status has been lawfully established in the host Member State.
54 It follows that the refusal by the authorities of a Member State to recognise the marriage of two Union citizens of the same sex, concluded during their residence in another Member State, constitutes an obstacle to the exercise of the right of those citizens, enshrined in Article 21(1) TFEU, to move and reside freely within the territory of the Member States. Such a refusal will result in those Union citizens being deprived of the possibility of returning to the Member State of which they are nationals and pursuing there the family life created or strengthened in the host Member State.
55 That said, it is established case-law that a restriction on the free movement of persons, which, as in the case in the main proceedings, is independent of the nationality of the persons concerned, may be justified if it is based on objective public-interest considerations and if it is proportionate to a legitimate objective pursued by national law (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 41 and the case-law cited). Furthermore, where a measure of a Member State which restricts a fundamental freedom guaranteed by the FEU Treaty is justified by an overriding reason in the public interest recognised by EU law, such a measure must be regarded as implementing EU law, within the meaning of Article 51(1) of the Charter, such that it must comply with the fundamental rights enshrined in the Charter (see, to that effect, judgments of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 36, and of 10 July 2025, INTERZERO and Others, C‑254/23, EU:C:2025:569, paragraph 105).
56 It is apparent from the Court’s case-law that a measure is proportionate if, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain that objective (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 41 and the case-law cited). Furthermore, an objective of general interest may not be pursued without having regard to the fact that it must be reconciled with the fundamental rights affected by the measure, by properly balancing that objective against the rights at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the aims pursued (judgments of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 64; of 23 March 2023, Generalstaatsanwaltschaft Bamberg (Reservation in relation to the principle ne bis in idem),C‑365/21, EU:C:2023:236, paragraph 59; and of 10 July 2025, INTERZERO and Others, C‑254/23, EU:C:2025:569, paragraph 109).
57 In the present case, it is apparent from the information provided by the referring court that the request made by the spouses at issue in the main proceedings that the marriage certificate issued in Germany be transcribed in the Polish civil register for the purpose of that marriage being recognised in Poland was refused on the ground that Polish law does not allow marriage between persons of the same sex and that, consequently, such transcription would be contrary to the fundamental principles enshrined in the Polish legal order.
58 In that regard, it should be borne in mind that the European Union is required, under Article 4(2) TEU, to respect the national identity of the Member States, inherent in their fundamental structures, both political and constitutional (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 43 and the case-law cited).
59 In addition, pursuant to Article 9 of the Charter, the right to marry and the right to found a family are to be guaranteed in accordance with the national laws governing the exercise of those rights.
60 Moreover, the Court has repeatedly held that the concept of ‘public policy’ as justification for a derogation from a fundamental freedom must be interpreted strictly, with the result that its scope cannot be determined unilaterally by each Member State without any control by the EU institutions. It follows that public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 44 and the case-law cited).
61 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 and to pursue their family life there, benefiting from their marital status legally established in the host Member State, does not undermine the institution of marriage in the Member State of origin, which is defined by national law and, as recalled in paragraph 47 above, comes within the competence of the Member States. It does not entail, for the Member State of origin, the obligation to provide, in its national law, for the institution of marriage between persons of the same sex. It is confined to the obligation to guarantee the recognition of such marriages, concluded in the host Member State in accordance with the law of that State, for the purpose of enabling such citizens to exercise the rights they enjoy under EU law (see, to that effect, judgments of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 45, and of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’, C‑490/20, EU:C:2021:1008, paragraphs 56 and 57).
62 Thus, such an obligation of recognition does not undermine the national identity or pose a threat to the public policy of the Member State of origin.
63 It must be added, in view of the case-law referred to in paragraph 55 above, that a national measure which is liable to obstruct the exercise of freedom of movement for persons may be justified only where such a measure is consistent with the fundamental rights guaranteed by the Charter, it being the task of the Court to ensure that those rights are respected, and, in particular, with the right to respect for private and family life, referred to in Article 7 thereof, and with the prohibition of any discrimination based on sexual orientation, referred to in Article 21(1) thereof (see, to that effect, judgments of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 47; of 14 December 2021, Stolichna obshtina, rayon Pancharevo, C‑490/20, EU:C:2021:1008, paragraph 58; and of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 62).
64 In that regard, in so far as concerns the right to respect for private and family life guaranteed in Article 7 of the Charter, it follows from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17) that, in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 ECHR, the latter provision constituting a minimum threshold of protection (see, to that effect, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 63 and the case-law cited).
65 It is apparent from the case-law of the European Court of Human Rights that the relationship of a homosexual couple may come within the notion of ‘private life’ and that of ‘family life’ in the same way as the relationship of a heterosexual couple in the same situation (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 50 and the case-law cited).
66 In that regard, the European Court of Human Rights has held that Article 8 ECHR imposes on the Member States a positive obligation to establish a legal framework providing for the legal recognition and protection of same-sex couples and that the Republic of Poland has failed to comply with that obligation, which has resulted in the inability of the persons concerned to regulate fundamental aspects of their private and family life. As regards persons of the same sex who have legally entered into a marriage abroad, that court has found, inter alia, that, by refusing to register that marriage under any form, the Polish authorities have left those persons in a legal vacuum and have not provided for the core needs of recognition and protection of same-sex couples in a stable relationship. That court has thus held that none of the public-interest grounds put forward by the Polish Government prevails over those persons’ interest in having their respective relationships adequately recognised and protected by law (ECtHR, 12 December 2023, Przybyszewska and Others v. Poland, CE:ECHR:2023:1212JUD001145417, §§ 113, 123 and 124; ECtHR, 19 September 2024, Formela and Others v. Poland, CE:ECHR:2024:0919JUD005882812, §§ 20, 25, 26 and 29; and ECtHR, 24 April 2025, Andersen v. Poland, CE:ECHR:2025:0424JUD005366220, §§ 11 and 14 to 19).
67 Therefore, the failure to recognise the marriage concluded by two Union citizens of the same sex in accordance with the law of the Member State in which those Union citizens have exercised their freedom to move and reside, on the ground that the law of the Member State of which they are nationals, in which those Union citizens wish to pursue their private and family life, does not allow marriage between persons of the same sex, is contrary to the fundamental rights which Article 7 of the Charter guarantees to same-sex couples.
68 Accordingly, as the Advocate General observed, in essence, in point 36 of his Opinion, it is for a Member State which does not authorise marriage between persons of the same sex to establish appropriate procedures for the recognition of such a marriage where it has been entered into by two Union citizens when exercising their freedom of movement and residence in accordance with the law of the host Member State.
69 In that regard, it should be noted that the choice of the procedures for recognising marriages entered into by Union citizens in the exercise of their freedom to move and reside within another Member State comes within the discretion of the Member States in the exercise of their competence, referred to in paragraph 47 above, in relation to the rules on marriage. Thus, the transcription of marriage certificates in the civil register of those Member States is only one of a number of possible procedures for such recognition. Nevertheless, those procedures must not render impossible or excessively difficult the implementation of the rights conferred by Article 21 TFEU.
70 Furthermore, when exercising their discretion to establish appropriate procedures for recognising a marriage entered into by two Union citizens in the exercise of their freedom to move and reside within another Member State, the Member States are required to comply with Article 21(1) of the Charter. In that regard, it should be pointed out that the prohibition of any discrimination on grounds of sexual orientation, enshrined in that provision, is mandatory as a general principle of EU law (see, by analogy, judgments of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 47; of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 76; and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 76).
71 In the present case, while, in principle, marriage certificates drawn up abroad may have the same probative effect as Polish marriage certificates, it is, in practice, excessively difficult, if not impossible, to derive rights from those certificates, in so far as, if those certificates are not transcribed in the Polish civil register, the recognition of those certificates is at the discretion of, and may therefore be the subject of differing decisions by, those administrative authorities, as illustrated by the circumstances of the case in the main proceedings set out in paragraph 50 above.
72 It is apparent both from the information provided by the referring court and from the observations submitted to the Court by the Polish Government that transcribing a marriage certificate in the Polish civil register is the only means provided for by Polish law for a marriage concluded in a Member State other than the Republic of Poland to be effectively recognised by the Polish administrative authorities.
73 Accordingly, the exercise of the right to have a marriage concluded in another Member State recognised may be undermined by the discretion enjoyed by the competent authorities in the context of the procedure for recognising a marriage certificate, since that discretion leads to differing approaches to such recognition, which may cause serious inconvenience at administrative, professional and private levels, as referred to in paragraph 51 above (see, by analogy, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraph 69).
74 In addition, it is apparent from the information provided to the Court that, under Polish law, heterosexual couples are entitled to have their marriage certificate transcribed in the Polish civil register where the marriage was entered into in another Member State. By contrast, same-sex couples, such as the couple at issue in the main proceedings, cannot, on account of their sexual orientation, meet the conditions laid down by Polish law for such transcription.
75 While it is true, as recalled in paragraph 69 above, that Member States enjoy a margin of discretion as regards the procedures for recognising marriages concluded by Union citizens when exercising their freedom of movement and residence within another Member State, the lack of a procedure for recognition equivalent to that granted to heterosexual couples constitutes discrimination on grounds of sexual orientation prohibited by Article 21(1) of the Charter. It follows that where a Member State chooses, within that margin of discretion, to provide, in its national law, for a single procedure for recognising marriages concluded by Union citizens in the exercise of their freedom to move and reside within another Member State, such as, in the present case, the transcription of the marriage certificate in the civil register, that Member State is required to apply that procedure without distinction to marriages between persons of the same sex and to those between persons of the opposite sex.
76 Lastly, it should be pointed out that both Article 20 and Article 21(1) TFEU and Article 7 and Article 21(1) of the Charter are sufficient in themselves and do not need to be made more specific by provisions of EU or national law to confer on individuals rights which they may rely on as such. Consequently, if the referring court were to find that it is not possible to interpret its national law in conformity with EU law, it would be required to ensure, within its jurisdiction, the judicial protection for individuals flowing from those provisions, and to ensure their full effectiveness by disapplying, if need be, the national provisions concerned (see, to that effect, judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraphs 78 and 79, and of 3 June 2025, Kinsa, C‑460/23, EU:C:2025:392, paragraph 72).
77 In the light of all the foregoing considerations, the answer to the question referred is that Article 20 and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter, must be interpreted as precluding legislation of a Member State which, on the ground that the law of that Member State does not allow marriage between persons of the same sex, does not permit the recognition of a marriage between two same-sex nationals of that Member State concluded lawfully in the exercise of their freedom to move and reside within another Member State, in which they have created or strengthened a family life, or the transcription for that purpose of the marriage certificate in the civil register of the first Member State, where that transcription is the only means provided for by that Member State for such recognition.
78 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.