A landmark shift for same-sex couples. With questions still unanswered

Jakub Cupriak-Trojan and Mateusz Trojan are the first Polish same-sex couple to secure a transcription of a marriage certificate issued in another EU member state. They fought for it for eight years.

The couple married in Berlin in 2018. Last November, the European Court of Justice ruled that Poland must recognize their marriage concluded in Germany.

From the ECJ ruling to nationwide regulations

Citing the European Court of Justice’s ruling, Poland’s Supreme Administrative Court (NSA) ruled in March that Article 18 of the Constitution does not prevent the recognition of a same-sex marriage concluded abroad. The provision in question states that marriage, as a union between a woman and a man, is subject to state protection.

In mid-May, Jakub and Mateusz Trojan finally obtained a transcription of their marriage certificate. Warsaw’s municipal authorities issued it even before nationwide regulations came into force. The court ruling concerned a couple who had filed their transcription application in Warsaw. Following the ECJ judgment, other District Administrative Courts (WSA) also issued rulings in cases involving same-sex couples.

A “minimum level of legal protection”

Dr. hab. Sylwia Majkowska-Szulc, a legal adviser and professor at the University of Gdańsk specializing in civil and international law, points to an important aspect of the ECJ’s ruling. The court found that EU citizenship and the rights flowing from it – including freedom of movement and residence, respect for private life, and protection against discrimination based on sexual orientation – are incompatible with Polish regulations. The provisions in question had, until now, prevented the recognition of same-sex marriages lawfully concluded abroad and the transcription of the corresponding marriage certificates.

The legal scholar also highlights the rationale behind the Supreme Administrative Court’s decision. The court concluded that, under Polish law, transcription is the only effective means of recognizing a marriage established under foreign law.

“The Supreme Administrative Court held that transcription, by guaranteeing a minimum level of legal protection, ensures the effective application of EU law within the Republic of Poland. It allows individuals to fully demonstrate their family-law status while neither infringing national identity nor undermining the country’s regulatory autonomy in the field of family law. The court did not invoke the ‘public policy clause’, as it found that transcription would not violate Poland’s public order,” says Dr. Majkowska-Szulc.

The ECJ ruling does not create a legal pathway for same-sex couples to marry in Poland. The legal expert stresses that transcription merely involves transferring a marriage or birth certificate issued by the authorities of another country into Poland’s civil registry system.

The regulation: three document formats

The regulation governing the transcription process nationwide was published in the Journal of Laws on May 22. It was signed by Digital Affairs Minister Krzysztof Gawkowski and Interior and Administration Minister Marcin Kierwiński.

The regulation introduces three versions of the relevant documents, depending on who entered into the marriage: a woman and a man, two women, or two men. Until now, the forms contained fields labeled “woman’s details” and “man’s details”.

The regulation will enter into force in August.

Transcription – and what comes next?

The government’s regulation on the transcription of same-sex marriage certificates has become another source of political tension, including within the governing coalition itself.

Krzysztof Hetman, a Member of the European Parliament from the Polish People’s Party (PSL), said in an interview with Telewizja Republika that transcription would not create any new rights for same-sex couples. He added that “these people will still face all the problems they have been raising until now.”

His remarks drew criticism from the coalition’s liberal and left-wing factions. Speaking on TVN24, Dorota Łoboda, spokesperson for the Civic Coalition’s parliamentary caucus, said that the PSL was attempting to appeal to conservative voters.

Coalition dispute

Contrary to what the PSL politician claims, transcription will carry legal consequences. Magdalena Biejat, Deputy Speaker of the Senate from the Left (Lewica), responded to Mr. Hetman’s remarks by referring to a decision by the Social Insurance Institution (ZUS). In April, ZUS stated that same-sex couples whose marriage certificates are transcribed in Poland will be entitled to full social benefits. These include family allowance, social disability pension, and funeral benefit.

A similar position has been taken by the National Health Fund (NFZ). In April, NFZ, responding to questions from the portal zero.pl, said that a spouse registered for health insurance as a family member will be fully entitled to healthcare services financed by NFZ. This means that if one spouse pays contributions, the other will be able to access the public healthcare system.

What rights follow transcription?

According to attorney Agata Bzdyń, a legal counsel specializing in human rights, access to healthcare and social benefits constitutes tangible rights. She nevertheless expresses doubts about whether institutions other than the Social Insurance Institution (ZUS) and the National Health Fund (NFZ) will consistently respect transcription.

“I believe that tax offices should also recognize such couples as belonging to the first tax group. This could lead to significant differences in the amount of tax payable. It might mean exemption from taxes for individuals who, after prior notification, would otherwise fall into the third tax group. In medical matters, this includes consent to procedures and access to information about one’s health status. These are practical issues that make life easier. I think tax offices will struggle with this. Regional differences will become apparent,” the lawyer said.

A new surname after a spouse

Dr. hab. Sylwia Majkowska-Szulc argues that the effects of transcription should be assessed in light of the exercise of personal rights derived from EU law.

“As a result, Jakub Cupriak-Trojan has the right to obtain identity documents issued under his new surname. As a Polish citizen, he can obtain such documents only in his country of citizenship. EU law also likely implies a spouse’s right to access information about their partner’s health status, as well as social rights arising from inclusion in the Polish social security system. This includes a survivor’s pension and the right of a spouse to be covered by the other spouse’s health insurance. By the same logic, such spouses should also have the right to joint personal income tax filing. This also applies to all other rights that should remain unchanged regardless of the member state of residence,” says the University of Gdańsk lecturer.

No clear set of guidelines

She adds that the ability to exercise these rights in Poland will depend on individual authorities. There are still no clear nationwide guidelines at the governmental level, which, according to her, stems from the regulation.

“The question arises to what extent Polish law-enforcement and administrative bodies, without a clear and explicit provision of domestic law, will be able to implement the ECJ ruling. The Court of Justice of the European Union does not rule twice on the same matter; therefore, Polish authorities are bound by its entire body of case law. The Supreme Administrative Court ruling should additionally serve as guidance for the uniform application of law in Poland,” says Dr. hab. Sylwia Majkowska-Szulc.

On the side of opponents of transcription, voices have emerged suggesting it could open the door to adoption by same-sex couples. Attorney Agata Bzdyń considers these concerns overstated. In her view, if adoption were to be considered in this context, it would take the form of stepchild adoption.

“Currently, when the biological parent in such a family has health problems and loses consciousness, the child may end up in foster care. Here too, I expect regional differences in court decisions. As for this regulation, I would rule out adoption of unrelated children,” the lawyer commented.

What happens if civil registry offices refuse to issue transcription certificates? Such a stance has already been declared by the mayor of Zakopane, Łukasz Filipowicz. According to attorney Agata Bzdyń, couples facing refusal will have to pursue legal action.

“It will be possible to challenge this in court, invoking the principle of equality before the law. There are regions where tolerance and respect for human dignity are lacking. Poland does not operate under a system of legal precedent, and each court ruling applies only to the individual case. However, courts cannot allow citizens to be treated differently in identical situations,” the lawyer said.

Same-sex marriage and corporate law

Dr. hab. Sylwia Majkowska-Szulc describes recent announcements of refusal as surprising. The legal scholar stresses that although Poland does not, as a rule, recognize same-sex marriages within its domestic legal order, information about such marriages does reach Polish civil registry authorities. This, she notes, helps prevent bigamy, which is not permitted under Polish law.

She also points to a certain paradox arising from the divergence between rights available to Polish citizens in same-sex relationships abroad and those unavailable to them in Poland.

“Persons who are married in a same-sex relationship undoubtedly meet the criteria for being considered ‘close persons’ under company law. They would therefore not be allowed to serve simultaneously as a management board president and supervisory board chair in the same company. This means they are sufficiently close to be barred from managing and supervising a company at the same time, yet not close enough to obtain information in a Polish hospital about their spouse’s health status. The lack of explicit regulation on how to treat foreign marriages not recognized under Polish domestic law, but widely recognized in most EU member states, creates space for abuse of authority and for depriving citizens of rights guaranteed under EU law and the European Convention on Human Rights,” says the University of Gdańsk expert.

It is not excluded that couples will have to continue fighting for additional rights before the courts. Such views are voiced within the left-wing faction of the governing coalition.

Lack of concrete details from the government

Clear guidance is difficult to find in the responses from individual ministries. We asked the departments responsible for preparing the regulation about the rights that will be granted to couples obtaining transcription. The Communication Office of the Ministry of Digital Affairs stated that Minister Krzysztof Gawkowski’s ministry is not responsible for defining the legal effects of the transcription of a foreign marriage certificate.

“These issues should be addressed by the relevant offices and institutions responsible for the respective policy areas. Ensuring the technical possibility of transcription constitutes a formal recognition of a same-sex relationship in Poland, and the certified copy of the act serves as a fully valid document confirming this fact in this respect. The change to the templates of marriage certificates removes a technical obstacle that had previously made it difficult for local governments to carry out the transcription process,” the response reads.

The Ministry of the Interior and Administration (MSWiA), in turn, did not address the question of rights acquired upon receiving transcription. It did, however, comment on potential refusals to issue such documents. According to the ministry, in such cases it will be possible to appeal or challenge the decision of the civil registry office head before the provincial governor.

We also asked the Ministry of Finance about the tax implications of issuing a transcription. The press office responded that “the regulation is a lower-level legal act and cannot affect statutory law.” It added that “any response regarding tax consequences depends on the position of the Ministry of Justice regarding the effects of such transcription under family and guardianship law.”

Threat of a presidential veto on the “close person” bill

At the same time, work is underway in the Sejm on a bill concerning the status of a “close person.” It replaces the previously announced legislation of “partners under civil law”. It is also the result of a compromise between the New Left and the Polish People’s Party (PSL), which opposed the introduction of this form of partnerships.

On Wednesday, Paweł Szefernaker, head of the Presidential Chancellery, announced the possibility of a veto if the bill is passed in its current form. In his view, it would bring same-sex relationships closer to marriage.

If the government bill is vetoed, same-sex couples may be left with the option of marrying in other EU countries. The next step would then be obtaining transcription of those marriage certificates in Poland.

Key Takeaways

1. A breakthrough in the recognition of same-sex marriages was the case of Jakub Cupriak-Trojan and Mateusz Trojan. They secured, before the Court of Justice of the European Union (ECJ), the right to have their marriage certificate – issued in Germany – transcribed in Poland. The Supreme Administrative Court (NSA) confirmed this entitlement. In May, the government issued a regulation adjusting official forms to the new legal reality.
2. The ECJ ruling does not open the possibility of contracting same-sex marriages in Poland. Transcription amounts to recognition in Poland of the legal effects of marriages lawfully concluded in other EU member states. This translates into specific administrative rights (such as surname changes) and social benefits.
3. Experts point to the absence of clear regulations governing the treatment of foreign-law marriages. It remains uncertain whether such couples will be able to file joint tax returns or whether stepchild adoption by a spouse will be permitted in such relationships.