Full recognition of similar personal and family status in the EU: The Mazowiecki Case and the innovative interpretation of national identity

Abstract

In the past two years, significant progress has been achieved in the recognition of equivalent personal and family status within the European Union. This development has materialized through their acknowledgment in the context of the exercise of the right to full freedom of movement and residence of Union citizens. Following the initially controversial and inconsistent case law of the Court of Justice in Coman and Pancharevo, which were practically indistinguishable, the 2023 judgment of the European Court of Human Rights in the Fedotova line of cases appears to have prompted a reorientation in the Luxembourg Court’s stance. The Mirin case and the recent Mazowiecki judgment seem to mark a turning point in this respect. In its emerging doctrine, the Court of Justice makes it clear that the invocation of the Member States’ national identity cannot serve as a pretext for infringing the fundamental rights to equality and non-discrimination on grounds of sexual orientation. This approach culminates in the effective recognition of analogous personal and family statuses across the Union. Where national legislation must be adapted to ensure such recognition, Member States are under an obligation to undertake the necessary reforms. Although they are not required to introduce or recognize same-sex marriage or filiation per se, they must, while respecting their margin of appreciation, ensure that same-sex families enjoy a comparable set of rights to those accorded to opposite-sex couples in matters of marriage and parenthood. Only such an interpretation secures conformity with the right to family identity enshrined in article 7 and the principle of nondiscrimination laid down in article 21 of the Charter of Fundamental Rights of the European Union.