The last issue of the European Journal of Migration and Law (vol. 13, issue 3, 2011) challenges several arguments about irregular migration which are often spread by policy-makers and media.

As pointed out in the introduction (F. Düvell, The Pathways in and out of Irregular Migration in the EU: A Comparative Analysis), four beliefs seem to dominate public thinking: (1) that ever more ‘illegal immigrants’ come to the EU and that numbers are ever rising, (2) that where some migrants arrive there must be many more on their way, (3) that ‘illegal immigration’ is about people hiding in lorries or cramped in shaky boats clandestinely crossing borders and (4) that irregular immigration is the result of the actions of certain individuals, migrants and their smugglers, who are to blame for this.

Düvell reminds us that irregular entry and irregular immigrants only represent a very small minority of all migration and of all immigrants (Paths in Irregularity: The Legal and Political Construction of Irregular Migration). Yet, this small minority raises enormous, if not almost disproportionate policy concerns and one cannot help but wonder about the purpose of the related policy discourse (Bastian A. Vollmer, Policy Discourses on Irregular Migration in the EU – ‘Number Games’ and ‘Political Games’).

On the facts, until recently, the stock of irregular immigrants was commonly guessed at 4–8 million but recent academic research suggests significantly lower levels (see the Clandestino Project). Düvell continues saying that stocks and flows of irregular migrants actually progressively decline. This is due to a mix of legal, political and economic developments: (1) large scale regularisation in various countries (Spain, Italy, Greece, Belgium), 3.5 million to over 4 million irregular immigrants were regularised in the EU between 1996 and 2008; (2) the accession of various major sending countries of irregular migrants to the EU; (3) improved enforcement measures and increased apprehension of irregular migrants, from 46.299 in 2005 to 85.554 in 2009; (4) the economic crisis that deters migrants from moving to Europe. In the EU the irregular immigrants populations represents between 0,38–0,76 percent of the total population of 498 million (2008).

Most importantly, amongst the conclusions reached within the framework of the Clandestino Project, summarised in the Clandestino policy brief ‘Pathways into irregularity: the social construction of irregular migration‘ (Düvell, 2009) and drawn on by Düvell, the main pathways into irregularity are by order of relevance:

• Legal entry and stay whilst working or engaging in self-employment in breach of immigration regulations and legal entry and visa overstaying;

• Refused asylum seekers who do not return;

• Bureaucratic failure in processing residence and work permit applications, inefficient renewal and appeal procedures resulting in withdrawal or loss of status.
• Clandestine entry is comparably low in numbers
• Irregularity by birth, because a child is born to parents that are irregular immigrants and quasi inherits their non-status.

The problem though remains: will these arguments enter into the public sphere? Or will they remain within the boundaries of academic research?

Almost three years ago, on 25 July 2008, the European Court of Justice ruling on the Metock case engendered reverse discrimination in those Member States where national legislation on family reunification is stricter than what provided by European law, namely by directive 2004/38. Therefore, in such Member States, EU nationals exercising their right to free movement have more favourable provisions on family reunification than nationals of the host Member State, thus provoking what is called “reverse discrimination”

The Metock case included four cases: Mr Metock, a national of Cameroon, who arrived in Ireland and married Ms Ngo Ikeng, a national of Cameroon who had acquired UK nationality; Mr Ikogho, third-country national, who arrived in Ireland and married a UK national; Mr Chinedu, a Nigerian national, who arrived in Ireland and married Ms Babucke, a German national; Mr Igboanusi, a Nigerian national, who arrived in Ireland and married Ms Batkowska, a Polish national, and was eventually deported because of irregular residence. Family reunification was denied to all applicants who hence brought proceeding against that decision arguing that Irish legislation was not compatible with Directive 2004/38.

The European Court of Justice ruled that these cases were matter of EU law since the applicants concerned had exercised their right to free movement. Moreover, the Court stated that the directive applies also to family members of a Union citizen who are irregularly residing and that it does not provide for the possibility of the host Member State to ask for documents to demonstrate any prior lawful residence in another Member State. Furthermore, it makes no difference, according to the European Court of Justice, whether nationals of non-member countries who are family members of a Union citizen have entered the host Member State before or after becoming family members of that Union citizen.

Until some weeks ago Belgium was amongst the European countries where there is no reverse discrimination since Belgian legislation would provide the same conditions than European law. Since the 26th of May though, reverse discrimination would be a problem also for Belgian citizens who wants to marry a third-country national. Indeed, Belgian Lower House approved a family reunion Bill which will tighten up conditions and make Belgians subject to the same requirements of family reunion as third-country nationals. With the new family reunification Bill the following conditions have been introduced: ascendants will be excluded; the sponsoring family member must earn a minimum of 120% of the legal minimum wage (although this condition will not apply to sponsors who want to be joined by minor children); the probation period during which the truthfulness of the marriage can be verified, and the residence permit possibly withdrawn if the marriage is suspected to one of convenience, extended from two to three years; applicants must apply from abroad so it will not longer be possible for applicants who are irregularly residing in Belgium.

As reported by Flanders News, Jozef De Witte, the head of Belgium’s Anti-Racist Centre, “has warned that Belgians face discrimination as a result of the stricter rules on family reunifications that are being introduced”. He also referred to the situation in the Netherlands were too stricter rules were introduced causing problems elsewhere: “Today there are Dutch people who move to Belgium for a while in order to marry their partner and be together, something they can no longer do in the Netherlands. They come to Belgium temporarily and then later return home. This will not be stopped under the new rules. We will merely create new flows of Belgians who travel to France, the Netherlands and Germany to pursue their rights that they will no longer be able to exercise in Belgium”.

Over the last few months, a number of Member States have raised the issue concerning EU citizens who have exercised their right to free movement and found themselves destitute in the host country. Some Member States have expelled, or threatened to expel, such EU citizens without taking into account the procedural safeguards acknowledged by the EU acquis on free movement

Free movement is one of the foundations of the EU. However, despite being highly regulated and building on extensive case-law, some Member States, especially since the beginning of the economic downturn, want to grant the rights stemming from the EU acquis on free movement only to economically active persons and consider destitute European citizens as a burden of which countries of origin should take care.

In 2010, the UK Border Agency introduced a pilot scheme to deport Eastern Europeans found sleeping in parts of London, Oxford, Reading and Peterborough. This scheme enables the UK government to deport people forcibly if they have been in the UK for longer than three months and have no prospect of working or studying. The agency issues individuals with written notices, informing them they must appear at a local police station for an interview to determine whether they have the right to remain in the country. One month into the scheme, more than 200 people had been considered under the pilot, roughly 100 had been served with removal notices and 13 people deported.

On the night between 7th and 8th December 2010 the Danish police conducted a targeted arrest of 69 homeless people accommodated in a privately funded shelter for homeless people, specialised in providing assistance to non-Danish citizens. Following this raid, 47 persons were held back for approximately 2 weeks while their cases were under review. 30 of them were EU citizens and all were repatriated, most of them on the grounds that they were not self-sufficient. This fact was also the subject of a written question asked by Swedish MEP Cecilia Wikström to the European Commission.

The Irish Government flew 548 destitute EU citizens back to their country of origin in 2010 as unemployment among migrant workers remained at very high levels due to the economic downturn. The number of EU nationals flown home under the State’s “Return Flights for Destitute EU Nationals” scheme in 2004 was 149. Returns peaked at 757 in 2008 before falling to 548 in 2010. Most of the EU migrants sent back under the repatriation scheme were refused social welfare benefits in the host country and were considered ineligible to access long-term homeless accommodation.

The Dutch Government has recently proposed to amend the directive 2004/38 on free movement asking for the establishment of a stronger link between the possession of an income and the residence rights. Moreover, Marnix Norder, The Hague city councillor publicly warned of a “tsunami” of Eastern Europeans and declared that unemployed EU citizens must return to their country of origin.

Ivo Belet, Belgian MEP, has also recently raised this issue through a question for written answer declaring: “A number of Member States, including Belgium, are facing a growing number of immigrants who are citizens of East European Member States (…) Host member States, and in particular local authorities, cannot cope with the influx”. Mr. Belet asked the Commission whether it would be possible to have a coordinated approach to this problem, to enable better procedures for verifying residence conditions and to define “unreasonable burden on the social assistance system”.

European Union is still silent on this issue. Commissioner Reding replied to Ms Wikström but in her answer she did not mention the test of proportionality provided by art. 28 of the directive 2004/38, according to which three sets of criteria have to be taken into account in order to determine whether a person has become an unreasonable burden (duration, personal situation and amount of aid granted). Nor did Ms Reding take into account the fact that the homeless expelled by Denmark after the raid last December were accommodated in a private funded shelter and subsequently were not a burden for the social assistance system.

Will this issue be solved through the development of the interpretation of European citizenship? Will EU set clearer rules as requested by a recent FEANTSA press release? What is sure is the unlawfulness of arbitrary expulsions which do not respect the procedural safeguards as set by the directive 2004/38: art 14 – “an expulsion measure shall not be the automatic consequence of a Union citizen’s recourse to the social assistance system of the host Member State”; art. 28 – “before taking an expulsion decision, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin”.

Last month, 23 July, the Italian Constitutional Court declared inadmissible and unfounded the Italian Government appeal against the Tuscany regional law on reception, integration and protection of third country nationals approved on 9 June 2009.

Although the Italian Government appealed alleging that the Tuscany region exceeded its competence, the real reason was that the regional law in question guaranteed an important set of integration measures for third country nationals. In particular, what the government could not accept is the guarantee of access to emergency social services and healthcare foreseen also for irregular immigrants.

The adopted regional law is nothing more than a balanced reaction to the strict measures adopted by the government through the ‘security package’. It has to be recalled that the European Convention on Human Rights, just to mention one of the international instruments to which Italy is bound, does guarantee emergency healthcare for irregular migrants.

What does the Tuscany regional law 8 June 2009, n. 29, foresee?

According to art. 1, the main objectives are: the promotion of human rights regardless of citizenship; to achieve social cohesion through the valorisation of cultural differences; to establish a participatory system in dealing with migration issues; to promote immigrant’s participation in society and increase the value of intercultural relations; to develop positive actions in order to guarantee social inclusion and avoid exploitation of immigrants in vulnerable situations.

The measures foreseen (art. 6) to achieve these objectives are nothing more than what should be normally granted to immigrants. Regular migrants enjoy the same rights than Italian citizens with regard to:

• Access to public life, also promoting migrants’ associations and granting the right to vote.
• Access to housing, granting non-discrimination in the search for a place to live.
• Access to welfare.
• Access to healthcare.
• Access to education and to the labour market, promoting the recognition of education and skills achieved in countries of origin.

Besides, the law guarantees access to emergency social services and healthcare to irregulars, as already mentioned, and establishes measures so as to facilitate the integration of immigrants as well as to avoid conflicts that would threaten social cohesion. Further, the law gives a particular attention to vulnerable categories (such as asylum seekers, unaccompanied minors and victims of trafficking) and encourages the participation of social partners and of civil society organisations, including immigrants’ associations. In fact, the Region commits itself to promote and coordinate, in collaboration with local authorities and civil society organisations, regional conferences in order to plan the activities established through the adopted law. A cross-sectoral approach built on intercultural dialogue is highlighted, establishing, among others, social mediation services and window offices that could be managed by local authorities, non-profit organisations, trade unions or employers’ organisations, so as to provide administrative support to immigrants.

What bothers the Italian government?

The Tuscany region does not keep secret its distaste towards the ‘security package’ implemented by the Italian government. In its website it clearly states that the ‘security package’ will not be solving the irregular immigration issue and reminds that in 2007 46,984 irregulars asked to be regularised and to only 13,030 the permit of stay was granted. Which means that “in Tuscany, 34,000 third country nationals are working in our enterprises and homes but are still irregulars by law. We let them take care of our families, live in our homes but we are not able to guarantee their dignity. If they get sick, should we treat them or let them die?” (from the Tuscany Region website).

There is nothing revolutionary; it is just a matter of being in accordance with the Italian Constitution and the International Law.  The Tuscany region just believes that regular immigrants, since they pay taxes as any other citizen, have the same rights and duties than Italian citizens, and does not hide, as stated in the law’s preamble n.2, that immigrants contribute to economic development. Speaking of which, according to the Bank of Italy, immigrants in Italy contribute around 4% tax revenue, while accounting for about 2.5% of expenditure on basic services such as education, pensions, healthcare and measures of income support.

Reading suggestions:

-       Council of Europe, resolution 1509 (2006)

-       Legge regionale 08 giugno, n. 29. Norme per l’accoglienza, l’integrazione partecipe e la tutela dei cittadini stranieri nella Regione Toscana.

-       Immigrazione. La legge regionale. Sito web regione Toscana.

The migration of workers to the European countries has been on the rise for the last few decades but several divergences on the issue have hindered the implementation at the EU level of measures guaranteeing a common set of rights for all migrant workers.

Beyond the phenomenon of irregular migrants working in undeclared labour, which is mainly due to the mismatch between political restrictions on labour mobility and the economic demand for manpower, migrant workers are more exposed to atypical employment contracts and precarious working conditions.

Recently, SOLIDAR, a Brussels-based network of NGOs, has published three case studies which focus on working conditions of migrant workers: the briefing no. 16 on posted workers from non-EU countries to Romania; the no. 17 on migrant workers in the Italian building sector; the no. 18 on migrants working as caregivers in Italy.

Are posted workers from third countries protected from abuses?

The case of posted workers from third countries to Romania is particularly interesting since there is no legislative framework, neither at national nor at the EU level, to regulate their activity. Ado Sah Rom, a Romanian NGO, analyses the juridical limbo for which this category of workers are not considered as migrants nor are they included in the scope of the EU directive on posting of workers. The Romanian Labour Inspectorate found many irregularities such as sub-contractors which do not draw up the necessary official documents for posted workers or employers which do not pay salaries on the dates due or pay in Romanian lei instead of Dollars or Euros as it had been promised by the foreign intermediary who recruited the workers. In addition, a study on the working conditions of foreign workers in Romania carried out by the Romanian Forum for Refugees and Migrants (ARCA), the Group for Dialogue Initiative and the Pro-Women Foundation has revealed further problems: abuses by recruiters, inobservance of the initial agreement with the recruiter, inobservance or modification of contractual clauses, unpaid salaries, lack of information in a language the worker can understand and other improper working conditions.

Migrant workers keep Italian business alive despite discrimination and exploitation.

In the Italy’s construction industry, still the most dangerous in the country, foreign workers make up about 17% of the workforce. This research, carried out by IRES, a think tank of the Italian trade union CGIL, shows how migrant workers have been exposed to discrimination, exploitation, poor health and safety standards as well as difficulties in their social and cultural inclusion. Discrimination takes multiple forms and the most common problems migrant workers face are downgrading, lack of retirement benefits and lack of severance pay. Foreign workers are also frequently confined to the lower grades, perform the hardest tasks and are far more vulnerable to blackmail compared to Italian workers.

A private welfare for the care of elderly people relying on migrant workers

In Italy, as in other European countries, the family is still central in supplying care services. Families, which besides are major users of irregular immigrants, need welfare services better equipped to ensure adequate care for elderly people who are no longer self-sufficient. As analysed in the case study carried out by ISCOS, an Italian NGO member of SOLIDAR, alongside ANOLF, an organisation providing assistance to migrants, many families are now turning to foreign family assistants to care for their elderly relatives and this system of private welfare has led to a weakly protected sector. Irregular contracts are widespread and many workers are still in an irregular situation. Despite a national collective agreement on domestic work, working conditions are often inadequate with caregivers who have to stay at the work place, sometimes even without a private room, night and day for a salary that varies between 600 and 800 Euros. Further, wages not entirely declared, no paid vacation, no access to healthcare, are just some of the indecent working conditions found out through interviews with migrant caregivers working in the Piedmont Region.

It is definitely time to address these problems developing a rights-based approach which would improve the integration of migrants and enhance their rights. Both at national level and at the EU level, new policies are needed in order to guarantee the rights not uniquely of high-earning professionals and of migrants admitted on short-term contracts.

link to a SOLIDAR’s position on how to enhance migrant workers’ rights

link to ILO publication – International Labour Migration. A rights-based approach

Following my previous contribution, I would like to add some relatively good news stemming from the second European Integration Forum, organised by the European Commission along with the European Economic and Social Committee and that was held on 12 and 13 November.

Even though at the institutional level important proposals as the directive on a single application procedure for a single permit and on a common set of rights for third-country workers lie down motionless on Home Secretaries’ tables, several civil society organizations have raised issues about the lacking link between migration policies and employment.

A framework on migrant workers’ rights is more than ever necessary but would be not enough without appropriate control mechanisms, since discriminations, for instance at the recruitment level, could persist. Intercultural education may help and many organisations have much work to do, including trade unions which have on one hand to fight against employers’ xenophobia and on the other hand try and educate its own basis which is often not exempt from xenophobic thinking.

The European Fund for Integration has to be properly exploited to address these challenges. Still, the problem is the absence of control mechanisms which would avoid Member States, to whom 93% of resources are allocated, from a bad management of integration projects. Indeed, several national associations complained about the use of these funds: the problems raised mainly concern the access to funds, the co-funding requirements and the definition of specific target groups. According to European Commission officials we have to be patient, as the Integration Fund is recent and will be surely improved in the next years.

I personally believe that there is no time to wait, especially if we look to the situation of some European countries. The second European Integration Forum gave signs of improvement, at least regarding the contents of the debates, and perhaps the entry into force of the Lisbon Treaty that provide EU with a legal basis on the field of integration will drive forward migration policies. As Mrs. Schmitt, European Commission DG JLS, declared, co-decision procedure will eventually lift the directive mentioned above up.

Meanwhile, the Italian Government, in order to solve the legal problems of its Prime Minister, proposes a law that will shorten the possible length of a trial putting amongst the serious criminal offences, that are not included in the law proposal, irregular migration (along with terrorism and mafia crimes).

For further information on the European Integration Forum
Information about the European Integration Fund

The Swedish EU Presidency’s proposal for the 5-year programme for freedom, security and justice, most notably the Stockholm Programme, has raised divergent opinions by the Members of the European Parliament. Mr. Albrecht from Greens considered that the Programme contains more and more preventive measures when Mr. Borghezio claimed that the programme “lacked a judicial response to terrorism and Islamic fundamentalism”. Of course, you cannot expect a smart opinion from someone who, every time he takes the floor, shouts at Muslim invasions of our white societies and used to disinfect public transports’ seats used by non-Europeans. However, this partially shows that every time we discuss about the area of freedom, security and justice, emphasis is given to security and, consequently, immigration becomes merely a security problem.

10 years have passed since the adoption of the Tampere Programme and social policy still does not have his appropriate place in immigration policies. We assisted to a development in linking migration and development and maybe, as Commissioner Spidla suggested at the last European Round Table on Poverty and Social Exclusion held in Stockholm, we will progressively see a stronger linkage between migration policies and implementation of the upcoming renewed Lisbon Strategy.

The proposed Stockholm Programme does not seem to go in that direction. In 2004, the Hague Programme stated that legal migration would have played “an important role in enhancing the knowledge-based economy in Europe, in advancing economic development, and thus contributing to the implementation of the Lisbon Strategy”. In 2009, the Stockholm Programme “invites the Commission to explore procedures that to a greater extent link the development of migration policy to the implementation of the Lisbon Strategy for growth and employment”.

Which measures will be actually proposed by the Commission? A concrete debate has to be opened on this issue and the social dimension of migration addressed to every relevant stakeholders. Or, more likely, we will just stand by for other 5 years waiting for the 2014 Rome Programme (maybe proposed by a government where Borghezio will be the Home Secretary). Meanwhile, the absence of a legal framework will keep in a precarious status tens of millions of migrant workers and legal channels for third country nationals to enter into the European market labour will be missing with an increasing pressure to the European borders of irregular migrants. This will call for more preventive measures, even more because of integration’s failure.

And another 5-year programme will raise divergent positions.

The Swedish Minister for Migration and Asylum Policy, Mr. Tobias Billstrom, presented to the European Parliament the priorities of the Swedish Government during the last LIBE Committee.

Firstly, the Swedish Minister recalled to the audience the growing importance of well-managed immigration policies, maintaining the idea that if EU wants to achieve the Lisbon strategy’s goals, bearing in mind the demographic challenges as well, it is necessary to open up to legal migration. Then, Mr. Billstrom highlighted the need for more cooperation and coordination between Member States and with third countries in order to: countering irregular migration in a balanced way and in the respect of fundamental rights of migrants, making asylum policy more efficient, reforming the Eurodac regulation and the Dublin System.

It followed an exchange of views with MEPs. The debate’s keywords were, as usual: burden sharing, solidarity, exchange of information, harmonisation, implementation, and so on. Some MEPs defended the Italian push-backs of migrants to Libya, others condemned them. But everybody seemed to agree on the fact that EU does not act enough on immigration and asylum issues in order to coordinate the Member States. I wonder if it would not be better to raise the issue of cooperation lacking against national authorities rather than blaming upon the European Community at every turn.

Unsurprisingly, when it came to Mr. José Luis Lopez Da Mota, President of the College of Eurojust, to talk about the last report on Eurojust, he stated that “it is just not possible to promote coordination when Member States do not make the effort to cooperate among themselves”. According to Mr. Da Mota, Eurojust receives more information from open sources than national authorities. Despite the fact that organised crime harm the EU budget as well as European society, Member States keep not to give enough information to their judicial cooperation unit.

The common area of freedom, security and justice is relatively new and much work has to be done. Nevertheless, I strongly believe that neither proclaiming every time the same keywords, nor complaining against European Union when something is not working, will bring the solutions that we need.

Yesterday, 22nd of July, the first civil liberties, justice and home affairs (LIBE) Commission composed by the newly elected members was held at the European Parliament. One of the major subject was the adoption of the Programme of Stockholm, of which some points have been discussed by the LIBE members along with Commissioner Jacques Barrot.

Mr. Barrot exposed the proposals contained in the Commission’s Communication on the Program of Stockholm, identifying four main paragraphs, notably the promotion of citizens’ rights, the facilitation of citizens’ life, the protection of citizens and the promotion of a more integrated society. European Commission envisages a Europe more respectful of human rights, thanks to the adoption of the Lisbon Treaty and the consequent accession to the European Convention on Human Rights of the EU as such, where data protection will be fully guaranteed despite further security tools and where people in need for international protection will find a haven.

Among the initiatives, the Commission strives for an actual internal security strategy, for which a fund might be foreseen, and proposes increasing exchanges and a European training for judges, an Erasmus-style project for law enforcement agents, a EU Program to fight organised crime and the establishment of a migration flows’ observatory.

However, the enthusiasm of Commissioner Barrot has not convinced many MEP’s who raised several issues. According to some of them, something is missing in the Stockholm Programme, in particular referring to the way in which the measures foreseen will be implemented, enforced and evaluated. “Why are we discussing about new proposals while previous ones have not been implemented yet?” said deputy Simon Busuttil casting doubt on the efficiency of proposals agreed at the European level.”When human rights are under threat, how can the Commission state that this is not of its concern? Is not the Commission supposed to be the Guardian of the Treaties?” added deputy Sophie In t’ Veld talking about the lacking of European enforcement measures in the field of civil liberties.

As a matter of fact, for some issues, the exclusive competence of Member States recalled by Mr. Barrot is an argument which defends the Commission’s behaviour. Concerning, for example, the laws on immigration adopted by Italian Government in the security package, which has been evoked several times my MEP’s, Barrot answered that Commission can not stand decisions that depend to a national prerogative, as legal migration is. “Of the Italian security package, we can judge what is competence of European Union, not what is strictly national” replied Barrot to the European Parliament.

Finding out the best practices who would allow a right balance between freedom and security is far from being obvious and the objectives declared risk to become matter for art of speaking. Harmonisation may help. Nonetheless, if implementation, enforcement and evaluation do not work properly it is not just European Commission which has to be blamed, even though it is suitable that appropriate and mandatory instruments of control will be foreseen so as to evaluate, influence and, if it is the case, sanction the national practices which are in contrast with the fundamental European principles. Otherwise, it will continue to be hard to proclaim a European area of freedom, security and justice.

Last week, Antonio Di Pietro, chairman of the Italia dei Valori party and member of the Chamber of Deputies, addressed to the International Community through an advertisement published on the International Herald Tribune. Di Pietro warned the International Community about the risk in Italy to plunge in a de facto dictatorship.

The court of Milan, last 19th of May, has ruled that David Mills, a British lawyer, “acted as a false witness in order to allow Silvio Berlusconi and the Fininvest Company the impunity from charges, or, at least, the safeguard of huge profits made through the fulfilment of illegal corporate and financial operations” (the Mills judgement). Mills would have received, for his perjury, 600 thousand dollars and, at least, 45thousand sterling declared to the Inland Revenue.

It would be coherent that Italian Prime Minister Silvio Berlusconi be judged as well. In fact, on 10 March 2006, prosecutors in Milan asked judge to order Mills and Berlusconi to stand trial on corruption charges but the Prime Minister found a way-out. Last year, on 22 July 2008, Italian Parliament adopted the so-called Lodo Alfano which foresees the immunity for the higher offices, notably the President of the Republic, the President of the Chamber of Deputies, the President of the Senate and the Prime Minister. In particular, the Lodo Alfano stopped the trial against Prime Minister Silvio Berlusconi.

Of course, the trial would be resumed as soon as Berlusconi will end his mandate but the Prime Minister strives to become the President of the Republic. If his aim was achieved, the trial would continue, at least, in 2020, when he will be 84 (next Italian President of the Republic will start his mandate in 2013 and last for 7 years).

The Lodo Alfano does not represent the first attempt for Berlusconi to have the immunity guaranteed. In 2003, the Lodo Schifani was similar to the Lodo Alfano which foreseen, in his article 1, the immunity for 5 higher offices (the 4 offices of the Lodo Alfano plus the President of the Constitutional Court). At the time, the Prime Minister was involved in the SME trial. The Constitutional Court invalidatedart. 1 of the Lodo Schifani, because in contrast with the Constitution (art. 3, art. 24 and art. 111) according to the principle of equality before the law and the mandatory nature of the penal action.

The Constitutional Court will pronounce about the constitutionality of the Lodo Alfano next 6th of October. According to many constitutionalists, this law is deemed to be unconstitutional. What is worrying is the fact that Berlusconi and the Minister of Justice, Angelino Alfano, were recently invited to attend a private dinner with Constitutional Court judges Luigi Mazzella and Paolo Maria Napolitano. According to Antonio Di Pietro, “it is unacceptable for two judges to meet privately and out of public view with the potential beneficiary of their decisions”.

In some European countries, immunity is foreseen for member of the Parliament and exclusively in the exercise of their political functions. Except for France, where the immunity is foreseen for the President of the Republic (immunité présidentielle) who also is the head of the government, Italy is the only country that has adopted immunity for the executive power.

Which kind of pressure could the international community exert? And the European Union? What about the principle of equality before the law recognised by art. 20 of the Charter of fundamental rights of the European Union? Berlusconi would answer that he is a citizen more equal than others. While international media were discovering hot stories about Berlusconi, an English lawyer was found guilty for having received a bribe from Italian Prime Minister who can not be put on trial because of a law that himself has proposed.