The ECJ’s judgment in Wojewoda Mazowiecki on the duty to recognize the same-sex marriage of mobile EU citizens is the latest example of mobilization of EU law to strengthen fundamental rights protection at the national level. This post provides the background for this increasing phenomenon – known as fundamental rights strategic litigation - at the CJEU and asks the questions whether the CJEU is a suitable actor to achieve this.

The wider context of the Wojewoda Mazowiecki case

On 25 November 2025, the ECJ issued a notable judgment in Wojewoda Mazowiecki. In essence, the ECJ ruled that Member States have the duty to recognise a same-sex marriage validly entered into in another Member State in which the couple had previously lived or has moved to. The case concerned a couple of Polish citizens, who married in Germany and sought to have their marriage certificate transcribed into the Polish civil register so that their marriage would be recognised in Poland. The competent Polish authorities refused, arguing that Polish law does not permit marriage between persons of the same sex.

The judgment continues the line of reasoning initiated in Coman, in which the ECJ held that, for the purposes of family reunification between the EU citizen and their non-EU spouse Member States are required to recognise same-sex marriages concluded abroad. This obligation applies where the non-EU citizen is not recognised as a ‘spouse’, thereby undermining their right of residence in the Member State the couple has chosen to reside in. In Wojewoda Mazowiecki, the ECJ went further, clarifying that this obligation also applies in situations where both spouses already have the right to reside in the Member State concerned. The Court held that non-recognition might deter them from exercising their freedom of movement, as it is liable to cause serious inconvenience for those citizens at the administrative, professional, and private levels.

In Poland, where the issue of legally recognising same-sex relationships has long been debated. In July 2024, the government’s legislative agenda included a draft law establishing civil partnerships, but it stalled at the level of the Council of Ministers. As a result, in June 2025, the Left submitted its own bill on civil partnerships to the Sejm. The draft was scheduled to be debated in the Sejm on 15 October 2025, but in an (un)surprising twist, on that very day the ruling coalition announced that it had reached a consensus to introduce a different law aimed, in their words, at protecting informal relationships. They later outlined the main provisions at a press conference: the new law is supposed to introduce agreements concluded before a notary, which would regulate matters such as property relations and access to medical information. However, it does not change the civil-law status of the parties who conclude it. The ECJ’s judgment will likely add some force to the current momentum around the legislative process – and, crucially, the case was arguably brought in a way that aimed to trigger the ECJ’s intervention for that very purpose.

Strategic litigation of fundamental rights before the CJEU

Wojewoda Mazowiecki follows a series of LGBTQ+-related judgments in which the Court set a standard for protection of fundamental rights: Coman, Pancharevo, Mirin, and Mousse. These cases – Wojewoda Mazowiecki included – share a further common denominator that is not immediately visible. They can arguably be viewed as instances of fundamental rights strategic litigation in relation to the right to respect for private and family life and the freedom of movement and of residence. They were conducted in a way that aimed to bring the matter before the ECJ and produce effects that go beyond the immediate dispute, by identifying cases with a clear link to EU law and submitting motions for a preliminary reference. Strategic litigation also arises in other areas linked to fundamental rights, such as data protection, migration,climate change, discrimination, or judicial independence. In the above-mentioned cases, EU law – including the Charter of Fundamental Rights – is mobilised to advance the level of protection of fundamental rights at the national level and the ECJ is triggered via the preliminary reference procedure to clarify the obligations of Member States in this sphere, such as the recognition of same-sex marriages, the recognition of birth certificates of children of same-sex parents issued abroad, or changes of gender and name in official documents. In other words, when national law does not provide for such obligations, an ECJ judgment is sought to establish that these duties flow from EU law, more specifically free movement rights and theGDPR, requiring Member States to adjust their legislation or practice accordingly.

This phenomenon is seemingly on the rise. It has certainly already attracted academic attention, and although no studies have been conducted to quantify this increase, the literature suggests a rise at least in the fields of climate change, citizenship, and data protection. The EU is also actively contributing to the rise of fundamental-rights strategic litigation by funding, through the CERV programme, trainings on Charter-based litigation – such as the STARLIGHT programmeor those conducted by CEELI.

However, strategic litigation before the ECJ – including cases in the field of fundamental rights or related areas – is far from new. It dates back at least to the late 1960s, when the Court, in Defrenne I, was asked to rule on gender discrimination in relation to pay. The continued efforts to bring cases capable of reaching the Court of Justice, together with a deliberate reliance on Article 119 EEC Treaty (now Article 157 TFEU), demonstrated a determined attempt to prompt structural change and strengthen the position of women in the labour market. With this practice, criticism has of course emerged as well. In the early 2000s, in Mangold, another case related to non-discrimination, this time based on age, was criticized as “fooling the courts with the aim of having the Court of Justice strike down a law which they disapprove of for political reasons”. This critique also relied on the argument that the underlying national dispute was, at least arguably, collusive – which cannot be said regarding the more recent cases mentioned, meaning that the disputes at the national level were genuine and not constructed solely to give rise to a preliminary reference. In principle, however, a similar line of criticism could be directed at them as well. Is it really the role of the ECJ to step into a space originally reserved for the national legislator by reshaping national legal landscape through judicial law-making and to rule on issues that, arguably, should be resolved through the political process?

There is also a more pragmatic dimension: the CJEU is not procedurally designed to accommodate individual litigants, such as human rights lawyers and NGOs. To trigger a preliminary reference under Article 267 TFEU, one must identify a case that contains the relevant EU-law element. The case cannot be artificially created, since questions stemming from fictitious, hypothetical disputes are inadmissible. Further, the litigant must be willing to pursue the case in a way that serves the public interest rather than solely their own, and the case must be heard by a judge receptive to EU-law arguments and willing to stay the national proceedings pending the CJEU’s response. Specifically making a fundamental-rights claim through a preliminary reference is even less straightforward, as the Charter applies only when EU law is being implemented (Article 51(1) CFREU) – meaning that a link to another provision of EU law is required. Similarly, actions for annulment of EU acts under Article 263(4) TFEU have restrictive locus standi rules for non-privileged applicants, which strategic litigants almost always are. As the examples of MEDEL and Carvalho – the so-called People’s Climate Case – illustrate, the CJEU is not inclined to relax these judge-made rules for the purpose of protecting the public interest. Both cases, although challenging EU acts, were intended to prompt change at the national level: MEDEL sought to trigger legislative reforms concerning judicial independence, while Carvalho aimed to push Member States to adopt more ambitious climate targets. One might ask: if there are indeed deficiencies in the protection of fundamental rights in a Member State, should it not be for the Commission to initiate infringement proceedings under Article 258 TFEU?

And after all that leading questioning and underplayed critique, we arrive at the “I’m just playing with you” moment. I argue that despite not necessarily being designed or established as an avenue for fundamental-rights strategic litigation, the CJEU has become one out of necessity.

Why strategic litigants go to CJEU

The general argument legitimising fundamental-rights strategic litigation is that it links individual interests to broader public interests. Let us return to the example of marriage certificates at issue in Wojewoda Mazowiecki. In that case, fundamental-rights-oriented strategic litigants sought to prevent a situation in which every same-sex couple married abroad must individually seek recognition of their marriage certificate and then challenge any refusal in court on the basis of Poland’s obligations under EU law, as established in Coman. As practice shows, although such cases should succeed in principle, they often did not in practice. Instead of addressing refusals one-by-one – each producing uncertainty, delay, and unequal outcomes – in Wojewoda Mazowiecki, strategic litigants aimed to obtain a ruling of the ECJ that clarifies the obligation once and for all, for everyone, regardless of whether one of the spouses is or is not an EU citizen. This approach removes the burden from individual couples, avoids inconsistent case-by-case decisions, and forces the national system to align with EU law rather than leaving fundamental-rights protection to depend on the persistence, resources, or luck of individual claimants.

So, although not an ideal avenue, the CJEU is one that makes it possible to address shortcomings in fundamental-rights protection in a more systemic way. To state the obvious, the CJEU’s interpretation of EU law is binding erga omnes, and the obligations concerning fundamental rights that follow from its judgments apply to all Member States, not only to the one from which the preliminary reference originated. The preliminary reference procedure has become a mechanism of supranational judicial review, allowing national practices and laws to be assessed against the standards flowing from EU law – including standards of fundamental-rights protection. The CJEU also possesses something that, for example, the European Court of Human Rights (ECtHR) does not: an enforcement mechanism backed by what are arguably the most effective sanctions – financial ones. Non-compliance with a judgment of the ECJ may lead to the initiation of infringement proceedings.

Ensuring respect for fundamental rights is an uphill struggle, and Member States are often reluctant to take the necessary steps. That is why strategic litigants, individual lawyers, and NGOs seek support wherever it is available – including from the CJEU. Going back to the Wojewoda Mazowiecki case – it was not that new in substance: the obligation to recognise same-sex marriages concluded abroad for free-movement purposes had already been established several years earlier in Coman. It is also worth noting that the ECtHR has confirmed that Poland (like other Member States) is required to provide a legal framework offering same-sex couples adequate recognition and protection of their relationship, not in one or two cases, but – to my knowledge – at least three: Przybyszewska v Poland, Andersen v Poland, and Szypuła and Others v Poland. And yet, neither Romania – where the Coman case originated – nor Poland have adopted the necessary amendments to domestic law. The same pattern appears in relation to the transcription of birth certificates of children of same-sex parents issued abroad. This obligation was confirmed in Pancharevo. The Polish Ombudsman later invited the CJEU to rule on the same issue with respect to Poland, and the Court responded in an order, noting that the matter was an acte éclairé and that the obligation indeed follows from EU law. And the result, more than three years later? Such birth certificates are still generally not transcribed by Polish civil registry offices (in individual cases they are, but with only one parent listed), and these children remain, in practice, deprived of Polish identity documents.

Put differently, strategic litigation serves not only to set new standards of fundamental-rights protection but also to secure compliance with existing obligations. Obtaining CJEU judgments is intended to nudge the legislature – not to stand in for it, but to intervene where legislative action was lacking, and to guide national courts in applying, or misapplying, national law in light of EU law.

Outlook

Of course, the Wojewoda Mazowiecki judgment has already triggered a great deal of criticism – including from places where one might not have expected it. The Polish Prime Minister Donald Tusk has already stated that “it is not the case that the European Union can impose anything on us in this matter.” I cannot help but note that this is most likely an attempt to reassure the more conservative parts of his electorate, because it is difficult to believe that a former President of the European Council genuinely misunderstands the principle of primacy. I do, however, hope that, following the ruling coalition’s promise to introduce a framework protecting same-sex relationships and in light of the judgments of both the ECtHR and the ECJ, proper legislation will eventually be adopted.

Zuzanna Nowicka is a lawyer in the Freedom of Speech Programme at the Helsinki Foundation for Human Rights. She is also pursuing a PhD at Jagiellonian University on fundamental-rights-oriented strategic litigation before the CJEU.