Case C‑713/23 Wojewoda Mazowiecki: On the rise of fundamental rights strategic litigation before the CJEU

The ECJ’s judgment in Wojewoda Mazowiecki on the obligation to acknowledge the same-sex marriage of cellular EU residents is the most recent instance of mobilization of EU legislation to strengthen basic rights safety on the nationwide stage. This put up supplies the background for this growing phenomenon – often called basic rights strategic litigation – on the CJEU and asks the questions whether or not the CJEU is an acceptable actor to realize this.

The broader context of the Wojewoda Mazowiecki case

On 25 November 2025, the ECJ issued a notable judgment in Wojewoda Mazowiecki. In essence, the ECJ dominated that Member States have the obligation to recognise a same-sex marriage validly entered into in one other Member State wherein the couple had beforehand lived or  has moved to. The case involved a few Polish residents, who married in Germany and sought to have their marriage certificates transcribed into the Polish civil register in order that their marriage can be recognised in Poland. The competent Polish authorities refused, arguing that Polish legislation doesn’t allow marriage between individuals of the identical intercourse.

The judgment continues the road of reasoning initiated in Coman, wherein the ECJ held that, for the needs of household reunification between the EU citizen and their non-EU partner Member States are required to recognise same-sex marriages concluded overseas. This obligation applies the place the non-EU citizen will not be recognised as a ‘partner’, thereby undermining their proper of residence within the Member State the couple has chosen to reside in. In Wojewoda Mazowiecki, the ECJ went additional, clarifying that this obligation additionally applies in conditions the place each spouses have already got the correct to reside within the Member State involved. The Court docket held that non-recognition may deter them from exercising their freedom of motion, as it’s liable to trigger critical inconvenience for these residents on the administrative, skilled, and personal ranges.

In Poland, the place the problem of legally recognising same-sex relationships has lengthy been debated. In July 2024, the federal government’s legislative agenda included a draft legislation establishing civil partnerships, nevertheless it stalled on the stage of the Council of Ministers. Consequently, in June 2025, the Left submitted its personal invoice on civil partnerships to the Sejm. The draft was scheduled to be debated within the Sejm on 15 October 2025, however in an (un)stunning twist, on that very day the ruling coalition introduced that it had reached a consensus to introduce a special legislation aimed, of their phrases, at defending casual relationships. They later outlined the principle provisions at a press convention: the brand new legislation is meant to introduce agreements concluded earlier than a notary, which might regulate issues comparable to property relations and entry to medical info. Nonetheless, it doesn’t change the civil-law standing of the events who conclude it. The ECJ’s judgment will seemingly add some drive to the present momentum across the legislative course of – and, crucially, the case was arguably introduced in a manner that aimed to set off the ECJ’s intervention for that very objective.

Strategic litigation of basic rights earlier than the CJEU

Wojewoda Mazowiecki follows a collection of LGBTQ+-related judgments wherein the Court docket set an ordinary for cover of basic rights: Coman, Pancharevo, Mirin, and Mousse. These circumstances – Wojewoda Mazowiecki included – share an extra widespread denominator that’s not instantly seen. They will arguably be considered as situations of basic rights strategic litigation in relation to the correct to respect for personal and household life and the liberty of motion and of residence. They have been carried out in a manner that aimed to carry the matter earlier than the ECJ and produce results that transcend the rapid dispute, by figuring out circumstances with a transparent hyperlink to EU legislation and submitting motions for a preliminary reference. Strategic litigation additionally arises in different areas linked to basic rights, comparable to knowledge safety, migration,local weather change, discrimination, or judicial independence. Within the above-mentioned circumstances, EU legislation – together with the Constitution of Basic Rights – is mobilised to advance the extent of safety of basic rights on the nationwide stage and the ECJ is triggered through the preliminary reference process to make clear the obligations of Member States on this sphere, comparable to the popularity of same-sex marriages, the popularity of delivery certificates of kids of same-sex mother and father issued overseas, or modifications of gender and identify in official paperwork. In different phrases, when nationwide legislation doesn’t present for such obligations, an ECJ judgment is sought to determine that these duties movement from EU legislation, extra particularly free motion rights and the GDPR, requiring Member States to regulate their laws or follow accordingly.

This phenomenon is seemingly on the rise. It has definitely already attracted educational consideration, and though no research have been carried out to quantify this improve, the literature suggests an increase at the least within the fields of local weather change, citizenship, and knowledge safety. The EU can also be actively contributing to the rise of fundamental-rights strategic litigation by funding, by the CERV programme, trainings on Constitution-based litigation – such because the STARLIGHT programmeor these carried out by CEELI.

Nonetheless, strategic litigation earlier than the ECJ – together with circumstances within the subject of basic rights or associated areas – is much from new. It dates again at the least to the late Sixties, when the Court docket, in Defrenne I, was requested to rule on gender discrimination in relation to pay. The continued efforts to carry circumstances able to reaching the Court docket of Justice, along with a deliberate reliance on Article 119 EEC Treaty (now Article 157 TFEU), demonstrated a decided try and immediate structural change and strengthen the place of ladies within the labour market. With this follow, criticism has after all emerged as nicely. Within the early 2000s, in Mangold, one other case associated to non-discrimination, this time based mostly on age, was criticized as “fooling the courts with the goal of getting the Court docket of Justice strike down a legislation which they disapprove of for political causes”. This critique additionally relied on the argument that the underlying nationwide dispute was, at the least arguably, collusive – which can’t be stated relating to the newer circumstances talked about, that means that the disputes on the nationwide stage have been real and never constructed solely to provide rise to a preliminary reference. In precept, nevertheless, an identical line of criticism could possibly be directed at them as nicely. Is it actually the function of the ECJ to step into an area initially reserved for the nationwide legislator by reshaping nationwide authorized panorama by judicial law-making and to rule on points that, arguably, needs to be resolved by the political course of?

There’s additionally a extra pragmatic dimension: the CJEU will not be procedurally designed to accommodate particular person litigants, comparable to human rights attorneys and NGOs. To set off a preliminary reference below Article 267 TFEU, one should establish a case that accommodates the related EU-law ingredient. The case can’t be artificially created, since questions stemming from fictitious, hypothetical disputes are inadmissible. Additional, the litigant have to be keen to pursue the case in a manner that serves the general public curiosity somewhat than solely their very own, and the case have to be heard by a choose receptive to EU-law arguments and keen to remain the nationwide proceedings pending the CJEU’s response. Particularly making a fundamental-rights declare by a preliminary reference is even much less simple, because the Constitution applies solely when EU legislation is being carried out (Article 51(1) CFREU) – that means {that a} hyperlink to a different provision of EU legislation is required. Equally, actions for annulment of EU acts below Article 263(4) TFEU have restrictive locus standi guidelines for non-privileged candidates, which strategic litigants virtually all the time are. Because the examples of MEDEL and Carvalho – the so-called Folks’s Local weather Case – illustrate, the CJEU will not be inclined to calm down these judge-made guidelines for the aim of defending the general public curiosity.  Each circumstances, though difficult EU acts, have been supposed to immediate change on the nationwide stage: MEDEL sought to set off legislative reforms regarding judicial independence, whereas Carvalho aimed to push Member States to undertake extra formidable local weather targets. One may ask: if there are certainly deficiencies within the safety of basic rights in a Member State, ought to it not be for the Fee to provoke infringement proceedings below Article 258 TFEU?

And in any case that main questioning and underplayed critique, we arrive on the “I’m simply taking part in with you” second. I argue that regardless of not essentially being designed or established as an avenue for fundamental-rights strategic litigation, the CJEU has develop into one out of necessity.

Why strategic litigants go to CJEU

The final argument legitimising fundamental-rights strategic litigation is that it hyperlinks particular person pursuits to broader public pursuits. Allow us to return to the instance of marriage certificates at problem in Wojewoda Mazowiecki. In that case, fundamental-rights-oriented strategic litigants sought to stop a state of affairs wherein each same-sex couple married overseas should individually search recognition of their marriage certificates after which problem any refusal in court docket on the premise of Poland’s obligations below EU legislation, as established in Coman. As follow exhibits, though such circumstances ought to achieve precept, they usually didn’t in follow. As a substitute of addressing refusals one-by-one – every producing uncertainty, delay, and unequal outcomes – in Wojewoda Mazowiecki, strategic litigants aimed to acquire a ruling of the ECJ that clarifies the duty as soon as and for all, for everybody, no matter whether or not one of many spouses is or will not be an EU citizen. This method removes the burden from particular person {couples}, avoids inconsistent case-by-case choices, and forces the nationwide system to align with EU legislation somewhat than leaving fundamental-rights safety to depend upon the persistence, sources, or luck of particular person claimants.

So, though not an excellent avenue, the CJEU is one which makes it doable to handle shortcomings in fundamental-rights safety in a extra systemic manner. To state the plain, the CJEU’s interpretation of EU legislation is binding erga omnes, and the obligations regarding basic rights that observe from its judgments apply to all Member States, not solely to the one from which the preliminary reference originated. The preliminary reference process has develop into a mechanism of supranational judicial evaluate, permitting nationwide practices and legal guidelines to be assessed in opposition to the requirements flowing from EU legislation – together with requirements of fundamental-rights safety. The CJEU additionally possesses one thing that, for instance, the European Court docket of Human Rights (ECtHR) doesn’t: an enforcement mechanism backed by what are arguably the simplest sanctions – monetary ones. Non-compliance with a judgment of the ECJ might result in the initiation of infringement proceedings.

Making certain respect for basic rights is an uphill wrestle, and Member States are sometimes reluctant to take the mandatory steps. That’s the reason strategic litigants, particular person attorneys, and NGOs search help wherever it’s out there – together with from the CJEU. Going again to the Wojewoda Mazowiecki case – it was not that new in substance: the duty to recognise same-sex marriages concluded overseas for free-movement functions had already been established a number of years earlier in Coman. It is usually value noting that the ECtHR has confirmed that Poland (like different Member States) is required to supply a authorized framework providing same-sex {couples} sufficient recognition and safety of their relationship, not in a single or two circumstances, however – to my data – at the least three: Przybyszewska v Poland, Andersen v Poland, and Szypuła and Others v Poland. And but, neither Romania – the place the Coman case originated – nor Poland have adopted the mandatory amendments to home legislation. The identical sample seems in relation to the transcription of delivery certificates of kids of same-sex mother and father issued overseas. This obligation was confirmed in Pancharevo. The Polish Ombudsman later invited the CJEU to rule on the identical problem with respect to Poland, and the Court docket responded in an order, noting that the matter was an acte éclairé and that the duty certainly follows from EU legislation. And the outcome, greater than three years later? Such delivery certificates are nonetheless usually not transcribed by Polish civil registry workplaces (in particular person circumstances they’re, however with just one mum or dad listed), and these youngsters stay, in follow, disadvantaged of Polish identification paperwork.

Put in another way, strategic litigation serves not solely to set new requirements of fundamental-rights safety but in addition to safe compliance with current obligations. Acquiring CJEU judgments is supposed to nudge the legislature – to not stand in for it, however to intervene the place legislative motion was missing, and to information nationwide courts in making use of, or misapplying, nationwide legislation in gentle of EU legislation.

Outlook

After all, the Wojewoda Mazowiecki judgment has already triggered a substantial amount of criticism – together with from locations the place one won’t have anticipated it. The Polish Prime Minister Donald Tusk has already said that “it’s not the case that the European Union can impose something on us on this matter.” I can’t assist however word that that is more than likely an try and reassure the extra conservative components of his voters, as a result of it’s tough to consider {that a} former President of the European Council genuinely misunderstands the precept of primacy. I do, nevertheless, hope that, following the ruling coalition’s promise to introduce a framework defending same-sex relationships and in gentle of the judgments of each the ECtHR and the ECJ, correct laws will ultimately be adopted.

Zuzanna Nowicka is a lawyer within the Freedom of Speech Programme on the Helsinki Basis for Human Rights. She can also be pursuing a PhD at Jagiellonian College on fundamental-rights-oriented strategic litigation earlier than the CJEU.