We must remember that rulings of the Court of Justice of the European Union (CJEU/ECJ) do not have direct effect within the territories of member states. Polish law would have to be amended for us to be able – and willing – to respect this ruling in Poland. As long as that does not happen, even though some judges in Poland want to apply these rulings directly, it is simply not possible – stresses Prof. Genowefa Grabowska in an interview with Niezalezna.pl, commenting on the ECJ judgment regarding the obligation of EU member states to recognize so-called same-sex marriages.
Another ECJ Intervention
On Tuesday, the Court of Justice of the European Union, responding to a question submitted by Poland’s Supreme Administrative Court, ruled that “a member state is obliged to recognize a marriage between two persons of the same sex, legally concluded in another EU country, even if the law of that member state does not recognize such unions.”
The case concerned two men who entered into a “marriage” in Berlin in 2018, but whose German marriage certificate was not entered into Poland’s civil registry. This happened because Polish law does not allow the conclusion or registration of marriage between persons of the same sex.
The Constitution Says Otherwise
Constitutional scholar and international law expert Prof. Genowefa Grabowska emphasises in her interview with Niezalezna.pl that Tuesday’s ECJ ruling “fits into a pattern of constant pressure” through which the Court tries to expand its competences “even into highly sensitive areas that belong to the constitutional identity of each state.”
“The ECJ does not respect this, because if a state regulates such matters differently due to ethics, morality, or non-legal considerations, it cannot be forced into something like this. And yet the ECJ has been doing this for quite some time,” she points out.
“Still, in this situation we must remember that ECJ rulings do not have direct effect in member states. Polish law would have to be amended for us to be able and willing to respect this ruling. Until that happens – and even if some Polish judges want to apply these rulings directly – this is simply not possible,” she explains.
Prof. Grabowska notes that the Polish state would “have to introduce a fundamental change, first and foremost to its constitution.”
“And since the constitution says otherwise, and since, as we know, we do not intend to amend the constitution in this respect, we will remain in a dispute with the ECJ. And the ECJ must respect our approach to the issue of same-sex marriage,” she states.
A Potential Problem
Asked about the consequences of the ECJ ruling – one issued in response to a Polish court’s question regarding the registration of same-sex unions concluded in other EU member states and their legal status – the constitutionalist admits that “we will have a problem here.”
“Under the constitution, such unions are not recognized under Polish law. Yet the European Union wants us to register them administratively to make citizens’ functioning easier. We will need a uniform administrative practice so that we do not end up with one office registering such a union while another refuses. And it should not depend on the office – and not on a single court either – because courts must apply the constitution and statutes, and the constitution regulates this matter unequivocally,” she explained.
She added that given the judicial practice of recent years, “it may turn out that we have a discrepancy between the formal obligation of courts to obey the constitution and statutes, and, on the other hand, the eagerness of some judges to respect whatever is European before what is Polish.”
“But if we do not want to respect the law and want to resolve this politically, then we should not ask lawyers for their opinion. We should ask politicians – and let them decide whether to violate the constitution once again,” Prof. Grabowska concludes.