Ruling does not mean Poland will recognise all foreign same-sex marriages, says human rights commissioner

Last week’s ruling by Poland’s Supreme Administrative Court (NSA) ordering a registry office to recognise a same-sex marriage conducted abroad has been hailed as a breakthrough for LGBT+ rights in a country whose domestic law does not provide for any form of recognised same-sex union.

However, the country’s human rights commissioner, as well as other legal experts, have warned that the ruling does not mean that all such couples can have their foreign marriages recognised, nor that they will receive the same rights as other married couples.

Much will still depend on whether and how the government changes regulations governing the entry of such marriages into Poland’s registry system.

On Friday, the NSA, which is the highest authority in Poland for administrative matters, issued a final ruling on a long-running case brought by two men with Polish citizenship who married in Germany and had been seeking to have their union recognised in Poland.

The NSA ordered the registry office in Warsaw to enter their marriage certificate into the civil registry within 30 days. In doing so, it cited a November ruling by the Court of Justice of the European Union (CJEU) that required Poland to recognise such marriages.

Some media reports have suggested that the NSA’s decision opens the way for other couples in similar situations to also have foreign marriages recognised. That has raised the possibility of Polish same-sex partners travelling to western Europe to marry, then coming back to Poland to have the marriage recognised.

However, Poland’s commissioner for human rights, Marcin Wiącek, has warned that the situation is not that simple. “This NSA ruling concerns a specific case,” he told news website Wirtualna Polska.

Unlike under common law – the type of legal system used in some English-speaking countries, such as the United States and United Kingdom – Poland’s civil-law system does not rely on judicial precedent.

That means, notes Wiącek, that it is up to legislators to change the law to take account of the CJEU and NSA rulings. Otherwise, practices on how to deal with same-sex couples wishing to register foreign marriages may be inconsistent across Poland, often depending on which party is in power locally.

Jakub Jaraczewski, a rule-of-law expert at Democracy Reporting International, likewise told Notes from Poland that the situation will “depend on how local authorities react”.

“We could end up with a situation where you can register your Spanish marriage in Świdnica” – a city whose left-wing mayor has expressed a desire to begin recognising same-sex unions – “but not in some town with a conservative mayor,” said Jaraczewski.

It remains uncertain how the Polish government will seek to implement the CJEU ruling requiring recognition of foreign same-sex marriages.

The digital affairs ministry – which is controlled by the most left-wing party in the ruling coalition – announced in January that it had begun work on adapting the registry system to allow same-sex marriages to be recognised. Currently, only marriages between a male and female can be entered.

However, more conservative elements in the government are less enthusiastic, and the digital affairs ministry’s proposals are yet to be approved by the interior ministry, notes broadcaster Tok FM.

Some have also argued that, rather than changing the system through government regulations, the law itself would have to be changed – meaning an almost certain veto from conservative, opposition-aligned President Karol Nawrocki.

Gazeta Wyborcza, a leading daily, reported in the wake of the NSA ruling that local officials are uncertain how to proceed with registering same-sex marriages and are waiting for guidance from the government.

“The State Register System currently in operation is not equipped with functionalities enabling the registration of same-sex marriages, and the necessary systemic solutions must be adopted at the central legislative level,” Warsaw’s registry office told the newspaper.

However, Maja Heban, of LGBT+ rights group Love Does Not Exclude, notes that the NSA ruling gives a deadline of 30 days to register the marriage, meaning “it simply has to be done”, even if “officials have to find a way themselves”.

A further issue is what this all means in practice for a couple who succeed in having their foreign marriage recognised. Wiącek warns that they should not expect to be treated the same as opposite-sex couples married in Poland.

“The ruling does not explicitly state that marriages concluded in another EU country automatically acquire the same rights as marriages concluded in Poland,” he told Wirtualna Polska. “It guarantees those rights that arise from EU law.”

“Therefore, it does not cover, for example, issues such as joint property or tax settlements between spouses, as these areas are not harmonised at the EU level,” he added. “This is a matter left to national law.”

Even before the CJEU and NSA rulings, the government had been working on a new law that would provide some legal rights – such as joint tax returns and property ownership – to same-sex couples.

However, the bill faces an uncertain future: parliament is yet to vote on it and, even if it does pass, President Nawrocki appears likely to veto it.

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.