From currant liqueur to gay marriage, the European judiciary

Polish law defines marriage as a relationship between a man and a woman. Nevertheless, the European Court of Justice has recently ruled that the Polish registry office may not prevent the registration of gay marriages of Poles married in Germany. It followed the principle that if one EU member state allows something, the others must accept it regardless of their laws.

An obligation that member states would not agree to

This obligation is one of the cornerstones of the European project, despite the fact that it was not created by the democratic agreement of the Member States; they would hardly agree to such a denial of sovereignty. Almost half a century ago, it was imposed on the states by European judges to facilitate the emergence of the common market. Today, on its basis, they can change fundamental social institutions without democratic control.

It all began when, in the late 1970s, the German supermarket chain Rewe began offering its customers the French currant liqueur cassis. The catch was that, according to German regulations, fruit liqueur had to be at least 25% alcohol, whereas cassis contained only 15-20%. The authorities did not prevent the sale of cassis, but forbade the supermarket from selling it as 'liqueur', for reasons of consumer protection and to protect both consumers and German producers. By German standards, it was simply not a liqueur. Rewe launched a lawsuit and took the matter all the way to Luxembourg.

There, the judges ruled that such restrictions were contrary to the free movement of goods, the official goal of European integration to which all member states subscribe. In a landmark decision that has entered the textbooks of European integration, they defined the obligation of mutual recognition and made it possible to integrate even what the Member States would not have thought of.

Compulsory recognition of non-family as family

Such as marriage. The German marriage of two Polish gay men may not meet the standards by which Poland defines marriage, but according to the European Court of Justice, member states must not make it more difficult for citizens to move and reside freely across the EU. If they are married in one state, other states must consider them married as well. The free movement of goods leads to an obligation to recognise non-lifers as liquors, the free movement of non-families as families.

In doing so, the Court recognises that family issues are still a matter for the States and are not affected by European law. It magnanimously leaves the States free to define the family by law as the union of a man and a woman, but at the same time obliges them to recognise as a family whatever may emerge from any corner of the European Union.

If they wanted to defend themselves by the 'public policy' proviso, perhaps they could still do so for polygamous or polyamorous unions, but who knows. In the current judgment, the court says that public policy cannot be invoked by states "unilaterally without the control of the European Union". What is or is not public policy is no longer determined by governments, but by Brussels.

The progressivist Europeanised Judicial International

The case also shows the supranational nature of the European judiciary. After the registry office refused to register the marriage, the homosexual couple appealed to the regional administrative court, which upheld the decision; the applicants responded with a cassation appeal to the Supreme Administrative Court. The administrative judges then turned to Luxembourg themselves. They raised the so-called preliminary question, which allows national courts to rule according to the Brussels rules; that is why the previous Polish PiS government tried to ban preliminary questions from the Polish courts.

The European judgment is precisely the answer to their preliminary question. But the Polish judges made no secret of where they stood in their question. They asked the European judges along the lines of: although Polish law does not allow registration, we believe that European law does, what do you have to say about that? The answer was as expected.

The latest judgment of the Court of Justice of the EU shows how difficult it is to resist the centralising self-movement of European institutions, which, moreover, has acquired a value-progressive character in recent decades. It also reminds us that the struggle for national democratic sovereignty is not only between national governments and Brussels, but is taking place within states, where one of the battlegrounds is the Europeanised judiciary.