The European Court of Justice (ECJ) ruled on Tuesday (25 November) that EU member states must recognise all marriages lawfully concluded in another member state, even if they do not allow same-sex marriages by law.
While this is a win for LGBTQI+ rights, the ruling comes amid concerns over the state of growing backlash against equality protections in several EU countries, where governments promoted hostile rhetoric toward queer communities.
In this case, in 2018 two Polish men who lived in Berlin decided to get married. When they moved back to Poland and tried to register their marriage, the authorities refused, as same-sex marriage is not legal in Poland. The couple challenged this decision, and eventually the case was referred to the ECJ.
The court in Luxembourg emphasised that European citizens have the right to move and live freely within the EU, and this freedom includes recognition of marriages legally performed elsewhere in the EU.
The judges also found that refusing to recognise such a marriage infringes on the right to respect for private and family life.
However, the decision over whether to allow same-sex marriages within a country remains with each member state, not Brussels.
This means the ECJ’s ruling does not force Poland to change its domestic marriage laws. Instead, Poland must only recognise same-sex marriages if they were conducted in another EU country.
From 2015 to 2023, Poland was governed by the national-conservative Law and Justice (PiS) party, whose MEPs are part of the European Conservatives and Reformists Group in the European Parliament. Those years saw increased euroscepticism and significant rollbacks in the rule of law, justice, and social rights, including abortion, same-sex marriage, and LGBTIQ+ rights.
In December 2023, the current centre-right PM Donald Tusk and his three-party coalition replaced PiS in government, promising changes.
The so-called “LGBT-ideology free zones” that the former Polish government implemented are now a thing of the past. Other than that, the significant changes, notably on abortion, promised by the Tusk government have yet to come, and Poland’s LGBTIQ+ community still faces discrimination and assault.
Meanwhile, rightwing and conservative forces have been on the rise across Europe in recent years, leading to pushes for greater restrictions on LGBTIQ+ rights.
Earlier this year, Hungary, for instance, banned the Budapest Pride Parade and prohibit bookstores from selling children’s books that cover LGBTIQ+ topics.
In reaction, thousands of activists and politicians attended the parade in Budapest in June.
Only 13 of the EU member states allow same sex couples to get married.
In 20 countries there are possibilities for registered partnerships that also apply for LGBTIG+ couples. Six countries, Poland, Hungary, Latvia, Slovakia, Bulgaria and Lithuania do not have any legal options for gay partnerships, according to the European Commission.
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Hannah Kriwak is a junior reporter from Austria at EUobserver, covering European politics.
Hannah Kriwak is a junior reporter from Austria at EUobserver, covering European politics.