The provisional decision: legal nature and regime in the European judicial area.

Summary The difficulties encountered in defining the regime applicable to provisional litigation under European Regulation No. 44/2001 are mainly due to the imprecision of the definition and legal nature of the category "provisional and protective measures", taken into account by the Regulation. A change of perspective is proposed, which consists in distinguishing the "provisional decision" from the measures it orders. As a judicial act without the authority of res judicata in the main proceedings and a "decision" within the meaning of Article 32 of the Regulation, the provisional decision constitutes a more homogeneous category, the legal regime of which can be specified. It must always be possible for it to be pronounced by the trial court and - in this case - to have effect throughout the European judicial area. On the other hand, the court with jurisdiction on the basis of article 31 must see its role strictly delimited. All the more so as the very existence of this alternative ground of jurisdiction encourages forum shopping, as well as conflicts of procedure and provisional decisions. Contrary to a commonly held view, interim decisions are all in personam. However, some of them - provisional decisions per partes - produce their effects outside the territory of the forum more easily and more quickly than others - provisional decisions per officium. It is therefore essentially the latter that must be pronounced locally by a supporting judge.