Purrucker I e II ed il regime speciale dei provvedimenti provvisori e cautelari a tutela dei minori

The two Purrucker decisions certainly constitute a landmark in the circulation of provisional measures within the Brussels II Regulation and, possibly, within the forthcoming Brussels I Regulation Revision. In Purrucker I the ECJ reduces enormously the availability of provisional measures based on Article 20 Brussels II Reg., declaring that such measures may not be recognized and enforced within the EU. The author assesses such a decision in comparison with the previous judgements given under Brussels I Regulation and criticises such a conclusion as directed mainly to deal with the unsatisfactory existence of exorbitant fora. In Purrucker II the ECJ deals with the delicate issue of the relation between provisional proceedings and proceedings on the merits. It therefore finds that, whilst there is no lis pendens between provisional proceedings based on art. 20 Reg. and proceedings on the merits, lis pendens may be declared whenever the applicant’s claim before the court first seised (may it be with the provisional measure) is directed to obtain a judgment from that court as the court having jurisdiction on the substance of the matter. Such a conclusion is consequent with the general frame of previous ECJ decisions that give no relevance to the merits/provisional nature of the proceeding/decision, but leads the author to draw consequences as to the provisional measures eligible for determining the lis pendens effect. Finally both Purrucker decisions deal with the delicate issue of ascertaining whether the court that has taken provisional measures has jurisdiction as to the substance of the matter. Under this regard the author has some criticism for the choice of the ECJ to allow the court second seised to (substantially) review the decision of the first court as to its competence.