When the East goes West: Romanian migrants in Italy or how to deal with mobility issues in the EU 27.
Central as it is to the common market, as one of the four fundamental freedoms of the Union, the free movement of persons has proved somewhat more problematic than the others (Postelnicu, 2007). This may be in part because 'people raise security and welfare implications in a way that goods do not' (Barnard 2007: 252).The Eastern enlargement has brought wide concerns related to the potential economic and social effects in the older EU states. Recent legislation in Italy has gravely obstructed the implementation of EU rights concerning free movement and residence, while bringing to the surface some of the wider problems connected to the management of migration and mobility in the EU 27 context.
The violent murder of Giovanna Reggiani in November 2007 by a Romanian citizen of Roma origin sent Italian public opinion into flames and highlighted the widely believed connection between immigration and crime. From that moment on the topic received intensive coverage, leading to a general criminalization of immigrants and in particular those of Romanian and especially of Roma origin. A 'Romania emergency' was installed, as it was called by Walter Veltroni, the mayor of Rome at that time (Wagner 2009: 11). The theme was also picked up by the right-wing coalition in the elections of spring 2008, which is said to owe its victory particularly to its strong anti-immigrant discourse. Immediately after coming to power the new government resolved to fulfil its promises and approved the 'security package', a set of legislative decrees meant to deal with the increased number of migrants and especially with those (mostly irregular) migrants living in settlements around Italian cities. De facto, the package targeted the Romanian community in Italy (and within it, the Roma), which is currently the largest foreign group in the country and which is generally believed to be responsible for the increase in crime rates.
The package seems to be one of the strictest policy reactions to migration since Italy has become a receiving country. In addition, its measures cover several categories of migrants, including internal EU movers and in fact contradicting EU Directive 2004/38 on the right of EU citizens to move and reside freely within the Union. In this context, the question of migration management goes beyond the bilateral relation between Romania and Italy and becomes a matter of European relevance.
The following paper will analyze the Italian 'security package' within the framework of EU mobility and it will look in particular at its implications for Romanian individuals in Italy in their capacity as EU citizens. The paper is based on a mixed qualitative and quantitative approach. Starting from an analysis of official data regarding migration flows into Italy and various accounts of migration management in the country it will continue with a review of internal and EU legislation to determine the fit of the 'security package' with the European framework. In addition, semi-structured interviews with migration experts and policy makers acquainted with the crisis have helped the author paint a more vivid picture of the implications of this national crisis on the wider European scene.
II. EXPLAINING MOBILITY
1. The EU Legislative Framework for the Freedom of Movement
Much of the debate on modern migration has been built around a state-centred perspective, which deems the migrant as a 'threat' to the status-quo (Joppke 1998). From here stem two distinct views on migration: one concerned with immigration and the policies that regulate the entry and stay of migrants; and the second focusing on the immigrants, or rather their integration in host societies once they are within the borders of the polity (in Lahav and Guiraudon 2006: 203). Or, as Sasse and Thielemann frame it, there is a tension between a security-based and a rights-based approach (2005). Recently, new perspectives are challenging the traditional stance, by invoking 'transnational' (Faist 2000) and 'post-national' trends and identities (Soysal 1994) as a result of globalization and accompanying phenomena (see also Sassen 1996). The integration logic of the EU follows to a certain extent on this trail and introduces the concept of intra-EU mover, a hybrid, 'tertium genus in-between internal and international migrants' (Recchi 2006: 4). A distinction is made between the internal migrant and the third-country national and while the EU migration approach towards TCNs is still quite blurry, the legal status of internal migrants is solidly established. It is this framework of inner mobility that I will try to present shortly in the following section. Freedom of movement will be regarded from the wider perspective of European citizenship and not as work migration.
Abolishing obstacles to internal migration in the Union has been a goal of the EU Treaties starting with the '50s (Barnard 2007: 249). Freedom of movement was initially meant to support work migrants and had a clear economic rationale in aiding the single market integration. Secondary legislation has moved gradually to enlarge the scope of this freedom to other categories of persons in the Union, such as students or retired people (see for example the three Residence Directives adopted by the Commission in 1990). It is only with the adoption of the Maastricht Treaty and the formalization of a European citizenship that the freedom to move and reside freely is granted as a political right to all citizens of Member States, whether economically active or not (Craig and de Burca 2008).
Moreover, in 2004, the Directive 2004/38/EC, also called the 'Citizens' Directive' has been adopted to create 'a single legal regime for free movement and residence in the context of citizenship of the Union while maintaining the acquired rights of workers' (Craig and de Burca 2008: 870). According to the Directive citizens of the Union may reside in any country of the EU for a period of three months without being subjected to any formalities. States may ask for additional conditions from citizens wishing to reside for more than three months: individuals and their family members need to be engaged in economic activity; or have sufficient means and sickness insurance; or be enrolled at a private or public establishment, have comprehensive sickness insurance cover and are self-sufficient in order to avoid becoming a burden on the social assistance system of the host member state.
As long as residents do not become an unreasonable burden for the state's welfare system, they should not be expelled (Kostakopoulou 2008: 292). The only grounds for restrictive actions may be public policy, public security and public health. Any such barriers to the freedom of movement should however comply with the principle of proportionality, meaning that the action is appropriate to the goal that needs to be achieved and that there is no other less intrusive action that can be taken to reach that goal (Barnard 2007: 81). It should also be based on the personal conduct of the individual concerned, if indeed he or she represents 'a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society' (Art. 27) (Merlino 2009: 18).
Within the scope of the Directive, foreign nationals enjoy equal rights with the locals and discrimination on grounds of nationality is prohibited. In a nutshell, this means that EU nationals 'should be able to exercise their rights to free movement without impediments imposed by additional regulations adopted by other member states' (Kostakopoulou 2008: 288).
2. Freedom of Movement post 2004/7
While the right to move and reside freely in the Union is fully applicable for members in recent accession countries, the freedom of work was temporarily restricted to respond to member state fears that their labour markets would be flooded with immigrant workers from the East (Craig and de Burca 2008: 788). The two-three-two formula allowed 'old' Member States to restrict access on their labour markets for workers from the eight new entrants (with the exception of Malta and Cyprus) for a period of up to seven years. In 2004 only three states opened their labour markets: Ireland, the UK and Sweden. Currently eleven out of fifteen countries had opened their markets, while the rest maintained more or less simplified measures. On 30th April 2009, the transitional agreements for the EU8 should end, unless special disturbances of Member State labour markets will prevent this.
After 2007, when Romania and Bulgaria entered the Union ten out of the twenty-five States opened their labour markets, while the other chose to maintain some restrictions. Currently, fourteen of the EU-25 Member States have opened their labour markets completely to the last two entrants (1).
Current impact evaluations made by the Commission sCOM(2008)765 finalt show that most work migrants from the EU-8 have preferred the UK and Germany as a destination, whereas the two later entrants have rather gone to Spain and Italy, which absorbed 50% and 25% respectively of the Romanian and Bulgarian migrants. Overall, the number of Bulgarian and Romanian citizens resident in the EU-25 increased from around 690 000 at the end of 2003 to about 1.8 million at the end of 2007. As the Commission points out, this process started well before the 2007 accession sCOM(2008)765 final: 5t. Also, it appears that 'in almost all Member States the number of recent arrivals from non-EU countries exceeds the number of newcomers from other EU Member States' (ibid: 6). Even after the Eastern enlargement, intra-EU mobility remains low relative to other regions (2).
III. ACCOMODATING MIGRATION
1. Modern (Im)Migration To Italy
Italy shares to a great extent the common traits of the Mediterranean immigration regime (Baldwin-Edwards 1997). It is a recent country of immigration, still building up the institutional structures necessary to manage the progressive inflows of migrants and has a tendency to criminalize and, as Agrela (2002) puts it, to 'electoralize' immigration. Northern European countries, on the other hand, have been faced with a phenomenon of a somewhat different nature, predominantly starting in the post-war and post-colonial era. In Adrian Favell's words, 'Italy's recent encounter with immigration has been much more raw, and much less mediated by this kind of colonial familiarity' (Favell 2002 : 5).
After being for decades a country of emigration, starting with the '70s Italy has reversed its status to become at present a 'net importer' of migrants (ERRC 2008: 11). Immigration rates have increased progressively in the last decades and quite spectacularly in the most recent years. The numbers say it all: in 1991 there were 350 000 foreign residents. Their numbers increased more than three times in a decade and again doubled over a period of only five years (ISTAT 2007: 2). Finally, in 2008 there were officially 3.5 million foreigners in the country, a 5.8% of the total population (ISTAT 2008: 16). The increase in 2007 alone has been remarkable: 454 000 new residents have been registered, a doubling of the 2006 rates and the biggest absolute value ever in the country (ibid). Currently, in terms of immigration rates Italy is surpassed by Spain alone (which received in 2007 a number of 685 000 new persons) thus being one of the two most sought after immigrant destinations in the EU 27 (ISTAT 2008: 16).
One in four foreign residents live in Lombardia, with the North-West of the country registering the greatest immigrant presence (36%) (ISTAT 2008: 16). The formerly varied migrant population is becoming now more homogenous (Recchi et al. 2003: 21). About half the foreign residents in 2007 were represented by five nationalities: Romanians (640 000 persons), followed by Albanians (400 000), Moroccans (370 000), Chinese (160 000) and finally Ukrainians (135 000) (ISTAT 2008: 16). A new development is the arrival of Polish migrants, currently reaching a number of about 100 000--but the most spectacular is the progression of the Romanian migration, which doubled in the span of two years: 300 000 new arrivals in 2006 and 2007 (Caritas Migrantes 2008: 1).
The increase in the Eastern European rates is quite possibly due to the recent EU enlargement, considering that Italy has chosen to open its labour market to the newcomers, but also viewing that other potential destination countries in Europe still hold their restrictions. In fact together with Spain Italy has been the main destination of the EU-2 enlargement in 2007 (Secretaria de Estado de Inmigracion y Emigracion). However, other essential factors should be considered: in the case of the Romanian community the linguistic and cultural similarities are likely to have made Italy a more appealing destination. The high tolerance for illegality also increases the level of attractiveness (Jeler 2006). The networking factor could stand as a reason for the perpetuation of the migration, viewing that 60% of migrants after 2001 used the help of friends and family to reach Italy and get established there (Sandu 2006: 22). The Romanian immigrant community in Italy is surpassed only by that of Spain, where the Romanians number about 715 000 out of the country's 4.4 mil foreigners (Secretaria de Estado de Inmigracion y Emigracion ).
Italy draws heavily on immigrant work. The need for immigrants seems to be agreed upon widely, by authorities and the public (Chaloff 2005), especially on account of structural unemployment and the transformations of the traditional labour market with the increased participation of women. In a typical dual market theory scenario (see Hagen-Zanker 2008), migrants lead the 3-D jobs (dirty, dangerous and difficult), or, in the Italian version, the 5Ps (pesanti, precari, pericolosi, poco pagato, penalizzati socialmente: taxing, precarious, dangerous, poorly paid, socially penalised) (Chaloff 2005: 2). Figures show that in 2007 remittances of immigrants from Italy have counted 6 mil euros and revenues have reached an important 3.750 billion euros (Caritas Migrantes 2008: 3). The Romanian immigrants account for 1.2% of the Italian GDP (Caritas Italiana 2008).
Italy has the second biggest underground sector in Europe after Greece (Gonzalez-Enriquez 2009: 6). The shadow economy is mainly fed by clandestines--about 40% of all its workers (Chaloff 2005: 5) and counts as an important explaining factor for the considerable number of illegal immigrants that the country attracts (Reyneri 2003 in Chaloff 2005: 5). Most irregular migrants in 2005 according to Blangiardo were Romanian (aprox 17%), followed by Albanians (12%) and Moroccans (11%) (Fasani 2008). In what regards the Romanian clandestine presence abroad Italy is the second largest country, with bigger illegal rates to be found only in Turkey (Sandu 2006: 36).
One significant problem of the immigrants in Italy, and especially of the undocumented ones, is linked to housing. Most end up at the peripheries of the cities, in precarious conditions. This can be explained among other things by the lack of social housing; by the cumbersome administrative requirements for renting out, together with the generally overcrowded and expensive rental market (Froy 2006); but also through manipulation from landlords and estate agencies (3) (Strati 2006). A particular case is that of the Roma and Sinti, who have been traditionally concerned with segregation in the urban periphery, despite some successful local examples for improving their situation (ibid.). The media maintains a discourse of poverty and crime in relation to migrants (Chaloff 2005). Daily snapshots of irregulars reinforce the feeling of 'invasion' (Chaloff 2005: 2) and the image of the migrant involved in the menial, dirty jobs (Del Boca and Venturini 2003). Certain reactions to immigrant inflows seem to be recurrent: just as with the Romanian group at present, the massive Albanian migration flows in the mid-'90s created a stir in the media and the public opinion and reflected a feeling of decreased security. As Martin describes it 'the anti-Albanian prejudice has grown steadily, fuelled by the concentration of the media on a marginal but quite visible criminal minority' (2003: 1).
2. Immigrants and Crime
The question of immigration has been highly associated to crime. Over the past years the percentage of foreigners in Italian prisons has increased--from 16% in 1991, to 28% in 1996 (Jamieson and Sily 1998: 14) and to 36% in 2007 (Aebi and Delgrande 2007). The rates are higher than the 18% European mean, but comparable to other important EU migration destinations (Aebi and Delgrande 2009). (4) As in other years, current crime rates seem to be high for irregular migrants, while for legal migrants they reach a 2%, close to those of the native Italian population (ISTAT 2008: 18).
The most convicted foreign individuals come from the three largest migrant communities--the Albania, Moroccan and Romanian. The Romanians and Moroccans respectively seem to be the first in most categories of criminal offences. Comprising in 2006 a 12% of the foreign population, the Romanians had a representation in the prison population varying from 15-37%, where the value of 37% was registered in offences related to theft. Albanians, as 11% of migrants, reached up to 20% in certain crime sectors. The same is valid for the Moroccans (10% of population and the highest crime rate is 23%) (Ministry of Interior 2007). As the Caritas report on the Romanian immigration shows, many of the victims of crime are migrants themselves (Caritas Italiana 2008).
Overall figures indicate an over-representation of the Romanian population within the foreign convicted population in certain sectors. This is one aspect that needs an extremely serious analysis from both Romanian and Italian authorities, regarding the causes, the involvement and the real implications of the Romanian 'deviant' element in the broader Italian immigrant context. Even so, this still appears to explain only partially the motivations for the 'security package' and the particularly strict measures currently affecting the entire migrant population in the country.
Also, several observations need to be made in relation to immigrant-committed crime. As shown in the literature concerned with the relation between immigration and crime, numbers alone may not show the entire story As Jamieson and Sily point out in an analysis of the Albanian immigration wave in the mid-90s, even if 'immigrant populations are statistically over-represented in crime relative to their official proportion in the overall population, it does not automatically follow that they are more active in crime' (1998: 14). A series of factors may intervene that need close attention: that crimes committed by foreigners may be reported more often; immigrants themselves due to somatic or linguistic characteristics may be more easily distinguishable, leading to higher reporting and arrest rates; the overall treatment of police towards immigrants should also be accounted for (Jamieson and Sily 1998: 14). Whether such arguments currently apply to the Romanian community in Italy remains to be verified--no such analysis has been yet publicized. Such factors however make the story of immigrant crime far more complicated than it has so far been presented in the media.
3. Regulating Migration
While generally the Italian immigration fits in the Mediterranean model, there are at least two traits that stand out: the political inconsistency and the recurrent use of the emergency paradigm. They also partially explain the persistence of some of the problems affecting immigrants and society as a whole, such as high levels of illegality, limited access to rights and services, the integration of newcomers. Considering the lack of success in establishing effective legal flows of entry, most of the migration management until now has been done through 'remedial actions' (Sciortino 2009: 3). Governmental emergency ordinances have been used heavily to respond to the vastly unregulated nature of migration and the great immigrant flows, generally described as 'emergencies'. As a result, regularisations have been an integral part of immigration policies, have repeated at an interval of roughly four years (Chaloff 2005: 4) and have been presented by each administration as an exceptional measure, the last to be of amnesty programs.
Caught by surprise by the increasing number of migrants, Italy had its first attempt at regulating the phenomenon in 1986. At the end of the decade, as migration became more widespread, the Martelli Law (Law 39/ 1990) introduced a more structured vision and supported the control of migration through the planning of incoming flows (Chaloff 2005). Six years later, in full Albanian migration, the centre-left government proposed the Turco-Napolitano law, which promoted a more coherent approach and tried to combine security and social integration issues (Strati 2006: 16). As Zincone shows, the law was based on two main goals of integration policies--a low conflict interaction between nationals and immigrant minorities, and the respect of immigrants' personal integrity. The law sought to achieve them through safety and security measures meant to reassure Italian citizens; pluralism and communication measures meant to produce mutual respect and understanding; and finally the assurance of full and, respectively, basic rights for legal and undocumented migrants (2006: 2)
The later Bossi-Fini law (Law 189/ 2002), adopted under a new, centre-right government came with a more moderate social approach and emphasised instead the idea of immigration as a threat (Strati 2006: 19). Among other things, the permit to stay was tied to the residence contract, effectively linking the proof of housing with labour contracts; all non-EU migrants who wished to remain on the territory of the country needed to be fingerprinted (Serban and Stoica 2007: 78). The law also provided for an important regularization, granting legal status to about 700 000 people--one of the biggest of its kind. Overall, the law provoked some controversy and even received important criticism from state institutions. The Italian Constitutional Court reacted against the norm concerning the expulsion of immigrants which, being based on an accusation and not on a full proof of guilt, was said to be in contrast with the Italian Constitution (Strati 2006: 19).
A new turn of government brought a shift in the approach. Starting with 2006, the Prodi cabinet favoured social integration policies, focusing on various categories of people, including migrants (Strati 2006: 2). The government also announced legislation that would end the 'emergency paradigm' (Chaloff 2005: 1) and special measures such a national fund for Immigrants, meant at establishing their basic rights and access to services (an important aspect in this strategy would have referred to the housing problems) (Strati 2006: 24).
IV. THE 'SECURITY PACKAGE'
1. The Background of the 'Security Package'
The increase in the number of immigrants had also triggered some restrictive policy reactions in Italy during the Prodi government. In November 2006 the so-called 'Pacts of Security' made arrangements connected to nomad camps in 14 Italian cities and signalled the emerging concern regarding immigration (ERRC 2008). Following the Reggiani murder in 2007 and the renewed attention this brought to the security-immigration nexus, the Italian government issued a decree that allowed local officials to expel EU citizens considered to pose a threat, on grounds of public security (Law Decree 181/2007). A more drastic legislative turn was however visible after the elections in spring 2008.
The elections, won by centre-right coalition of the Popolo della Liberta (People of Freedom) brought important transformations to the Italian political scene. The leftist, pro-migrant, coalition--the Sinistra Arcobaleno or the Rainbow Left--did not meet the Parliamentary threshold, which meant the disappearance of socialist and communist parties from Parliament for the first time after 1946 (Merlino 2009). The Union of Christian and Centre Democrats was also not included in the government.
Much of the success of this right-wing alliance has been attributed to its intensive campaigning during elections on the theme of 'insecuritisation' of the phenomenon of immigration (see Palidda 2009 in Merlino 2009: 2). The shift from a centre-left to a solid centre-right government has marked 'a clear turn (or 'coming back') towards exclusionary policies in the fields of human mobility and diversity' (Merlino 2009). Migration legislation could be passed by the Berlusconi government without facing significant opposition either within the coalition or within Parliament (ibid).
Thus, five days after receiving its vote of confidence from the Parliament, the Berlusconi government went to fulfil one of its major campaign promises--tackling immigrant crime--and adopted the 'security package'.
2. The New Conditions of Entry, Stay and Expulsion
The package consists of several laws and legislative decrees which refer to public safety and modify national legislation transposing EU law on freedom of movement of citizens of EU Member States, as well as family reunion and refugee laws. The package has been a legal reflection of the authorities' determination to control immigration and especially illegal immigration, with a focus on the Roma-inhabited settlements at the outskirts of Italian cities.
Several modifications are made to the Italian Penal Code. Illegal immigration becomes a crime, punishable with imprisonment from six months to four years. The status of irregular immigrant also becomes an 'aggravating circumstance', making a convicted individual with an irregular status likely to receive a sentence three times longer than that of regular Italian individuals having committed the same crime (Merlino 2009: 20). In addition, the new Penal Code now allows for the automatic expulsion of EU citizens convicted to sentences of more than two years (previous conditions referred to third country nationals alone and to a threshold of ten year convictions for allowing expulsion).
Proof of sufficient means and adequate housing conditions are also required from EU citizens wishing to reside in Italy for more than three months. A more recent plan announced by Interior Minister Maroni stipulates a minimum threshold for this condition, stating that citizens living in nomad camps (including Romanian Roma) who do not have the minimum income (5) and the minimum standard of housing conditions will face expulsion (Merlino 2009: 9). Also, failure to register with the authorities or to request the residence permit is considered per se an 'imperative reason of security' which could result in denying right of residence.
3. The State of Emergency
The exceptional legal situation declared by the Council of Ministers is based on Italian legislation, which allows for a state of emergency to be called 'in case of natural calamities, catastrophes or other events that according to their intensity and reach need to be faced by extraordinary powers and means' (see Merlino 2009: 10). The current emergency is linked by the authorities to 'the extremely critical situation generated by the presence of numerous irregular and nomad foreigners who are permanently installed in the urban areas'. It is stated that 'the precariousness of those camps has caused situations of serious social alarm samongt the local populations' (Merlino 2009: 11).
In order to tackle the situation, the 'security package' confers mayors wide competences and the function of 'commissioners' of the government, allowing them to adopt 'urgent regulations for security reasons' (Art. 6 of Law No. 92). Furthermore, the package provides for the deployment of the Army in order to ensure public security.
V. THE AFTERMATH OF THE 'SECURITY PACKAGE'
In the period since the adoption of the 'security package' official actions have been quite intense. Making use of the new competencies awarded to them, several mayors have conducted censuses in Roma camps from Milan, Naples and Rome, photographing and fingerprinting inhabitants--as well as requesting data on ethnicity and religion. Furthermore, 3000 soldiers were deployed across the country to survey the Centres of Identification and Expulsion, and to support prefects in several Italian cities with patrol and surveillance activities (Merlino 2009: 34).
According to data of the Romanian Ministry of Interior, until December 2008 a number of 724 expulsion decrees were signed for Romanian citizens, three times as many as in the previous year, when their number had reached 214. Among these 95 were motivated by public security reasons and the respective citizens were sent to Romania on an emergency basis, with a plane. For 211 individuals expulsion orders allowed for periods of 10, 20, 30 and 31 days respectively for leaving the country and some of the decrees were invalidated by Italian judges (source Corneliu Alexandru, interview 19th December 2008). The Italian media reports that in the first two months of 2009 already 3000 clandestine persons (Romanian included) have been deported, in what seems to be an even tougher resolution of the authorities to remove undocumented migrants (Adnkronos 2009).
In addition, activists visiting Roma settlements signalled an increase in police raids as well as police abuse, in both illegal and legal camps. About one third of all Roma camps in Italy are said to have been dismantled by the beginning of 2009 (Cerino 2009), in many cases without authorities having provided alternative housing for their inhabitants (ERRC 2008).
Throughout 2008 and 2009 media reports also signalled on several instances street attacks and public demonstrations against Romanian citizens and a series of violent civilian and vigilante-led actions targeted Roma camps. In one of the most brutal, the Roma settlement at Ponticelli near Naples was set on fire by unknown persons, leading to the evacuation of about 800 people (ERRC 2008).
2. Reactions to the Package
The 'security package' has been met with intense criticism by various actors and institutions. a. European and International levels The European Parliament had strong interventions, followed by a somewhat slower and more ambiguous response of the European Commission. (6) A resolution of the European Parliament in November 2007 [P6_TA(2007)0534] in reaction to the measures adopted in Rome urged the Commission to make an exhaustive assessment of the implementation of Directive 2004/38 by the Member States. In an official statement meant to clarify the application of the Directive the Vice-President Frattini underlined that 'whilst the Commission is not prepared to tolerate any form of discrimination or intolerance of EU citizens, it will equally support Member States who lawfully protect citizens--whether their own nationals or citizens of the Union more generally' (2007). His declaration in fact re-iterates the 'rights' versus 'security' controversy that frames the later discussion around the 'security package' and about mobility in general.
Following the developments in Rome and the adoption of the 'security package' in 2008, the debate in the European Parliament continued, together with negotiations between the Commission and Italy. The official reactions of the Commission also became stricter. In a statement in front of the Parliament Commissioner Spidla called for the respect of Romanians' rights as EU citizens (Spidla 2008). Furthermore, in a Declaration on the 'security package' in September 2008, Jacques Barrot pointed out to the incompatibility of the decrees with EU law and called for the reach of a rapid solution under Community norms. In contrary terms, he added, the Commission would begin the infringement procedure (Barrot 2008). Until present, this step has not been taken.
On the domestic scene, Italian actors reacted on both sides of the story. In a declaration for the Repubblica, Giuliano Amato, the Interior Minister, pointed out that the Free Movement Directive was 'insufficient' for managing large-scale migration from new member states and that the Government's decree was necessary 'to prevent the tiger of xenophobia, the beast of racism, from breaking out of the cage' (openeurope.com 2007).
On the other side, officials such as Nello Rossi, the head of Italy's National Magistrates Association pointed to the incompatibility between the national package and national as well as EU legislation (ibid.).
Other European Member States have also intervened. Spanish deputy prime-minister Maria Teresa Fernandez de la Vega sparked tensions between the two Mediterranean governments when vehemently opposing the approach of the Italian government (Euractiv 20th May 2008).
Some reactions in the UK, another important migrant destination, have been swift: one official declared to the media back in 2007, regarding the support offered by the Commission to the actions in Italy that 'If the European Commission has ruled that it is perfectly acceptable to kick out people the police suspect are up to no good, then our Government needs to follow Italy's lead and introduce it here.' (Drury and Pisa 2007). In 2008 the UK has also presented official proposals to the European Council regarding the implementation of the Directive 2004/38, underlining that Member States should continue 'to take a robust approach to those who break the laws of their host country by expelling persons involved in violent or sexual assaults, drug trafficking, burglary and other such crimes'(Council doc. 15903/08). (7)
The debate around the Italian package focused extensively on the treatment of the Roma in Italy and the EU. In a widely cited article, the vice-president of the Italian Senate, Emma Bonino, together with Dutch MEP Jan Marinus Wiersma and director of the Open Society Institute Brussels Andre Wilkens react to the events at Ponticelli and point out to the negative potential of the actions against the Roma as a precedent in Europe. In the wording of the article 'Social exclusion travels. [...] It would be bad news for Europe if the approach of the Italian government towards Roma--exclusion and expulsion--were to become the standard' (Bonino et al. 2008).
There has been indeed an increase of visibility of the Roma issue since 2007--as such, several European Councils have included debates on the situation of Roma in Europe on their agenda (the European Councils in December 2007 and 2008). Even more, a special European Roma Summit was organized in September 2008, a first action of this kind at a European level.
b. Bilateral Relations
At diplomatic level the Romanian--Italian relation has been tense. Several high ranking meetings were organized and acid declarations were exchanged throughout the evolution of the events. In a joint initiative of the Prodi and Tariceanu cabinets, the two countries asked the Commission to 'consider a European strategy for the inclusion of Roma, to serve as the basis for new initiatives or to complement existing initiatives' as well as to clarify EU rules on inclusion and on deportation of EU nationals (BBC 2007). Other meetings also took place in 2008 and 2009. The recurrent concerns of the Romanian government were related to the rights of Romanian citizens in Italy, the concentration on a criminal minority and consequent generalization of the negative perception on the entire Romanian community in the country. The Italian government in turn generally asked for a better management of irregular migrants coming from Romania and guarantees for the non-return of convicted persons to Italy (Euractiv 24th February 2009).
A comprehensive package of assistance and integration was created by the Romanian government to support the Romanian citizens in Italy and the Italian authorities in dealing with Romanian wrongdoers (Corneliu Alexandru, interview 19th December 2008) and collaboration between the police and judicial levels of the two countries was intensified.
VI. ANALYZING THE SECURITY PACKAGE
1. Legislative Compatibility Issues
As pointed out by national and international observers, important aspects of the security package go against established EU principles and legislation.
To begin with, the security package gives a much too generous interpretation to the exceptions governing the right to move and reside freely within the Union, with the effect of facilitating the removal of unwanted persons. The package also introduces more narrow conditions for access, which effectively make entry and residence of EU citizens more difficult.
Expulsion becomes a potential sanction for failing to satisfy administrative requirements such as proof of satisfactory accommodation, which are in fact not provided for by the Directive 2004/38. Automatic expulsions are also possible, and previous imprisonment or irregular status become aggravating circumstances. The Directive 2004/38 clearly states however that all sanctions, including those for administrative failure, need to be proportionate and non-discriminatory (Art. 8) and that decisions of expulsion cannot be automatic, but need to take into consideration personal conduct of every individual, be based on a proven threat to the fundamental interests of society and, in case expulsion measures are in place, allow individuals time and methods for appeal. Moreover, it is clearly stated that that previous imprisonment cannot count as an aggravating circumstance (Art. 27).
Another possible point of concern is that residence on Italian territory is soon to be conditioned by the fulfilment of particular financial stipulations (see the above mentioned plan of expelling citizens that cannot prove minimum income). Since the Directive 2004/38 does not provide clear indications for the notion of self-sufficiency; there is room for interpretation and--like in Italian case--this allows for the adoption of measures that may limit the right of residence of EU citizens and even facilitate their expulsion (EP A6-0186/2009). Such a provision comes in contradiction with the spirit of the Directive 2004/38, as it creates a type of 'census citizenship' and links the completeness' of European citizenship to income (see Revelli 2008 in Merlino 2009: 22).
The approach in the 'security package' formalizes a generalized state of exception. In the spirit of the Directive 2004/38, the removal of EU citizens is however seen as an extraordinary measure, a very strict and serious limitation on the freedom of movement of EU citizens. As Guild points out, expulsions need to be the exception that governs free movement (Guild 2001 in Merlino 2009: 27) and states must 'always opt for the administrative measures and procedures that are the least restrictive possible to fundamental freedoms, and in particular the freedom to move (Carrera 2008 in Merlino 2009:18). The derogation from this practice on grounds of public security or policy 'must be interpreted restrictively and its scope cannot be determined unilaterally by each member state without being subject to control by the institutions of the Community' (Guild 2001 in Merlino 2009:16). Moreover, Art. 4 ECHR explicitly prohibits any form of collective expulsions, whether in the case of Union citizens of TCNs.
Last but not least, data collection measures and treatment of Roma inhabitants of settlements raise questions as to the compatibility of the 'security package' with established principles of EU law and in particular Directive 95/46/EC on the data and Council Directive 2000/43/EC on equal treatment between persons irrespective of racial or ethnic origin. The measures of fingerprinting had not in fact been a novelty. The Bossi-Fini Law already included provisions for using this measure in relation to immigrants. Notwithstanding efficiency or justness questions, what makes its use in the current case problematic is its application to EU citizens and migrants alike, and, maybe more importantly, its discriminatory and abusive implementation (the use of ethnicity questions, the fingerprinting of minors).
According to the Directive 95/46/EC, any personal data needs to be gathered and processed for legitimate and proportionate purposes, and the nature of the data must not be excessive to the goals for which it is collected--evidently not the case with the censuses of Roma settlements.
Before concluding, one last point needs to be made. Throughout the application of the measures, a symbolic and even legislative ambiguity seems to ponder over the status of migrant and internal EU mover. Some of the measures previously meant for third-country nationals (fingerprinting, automatic expulsion, detention in 'Centres for Identification and Expulsion') are now transferred to legislation dealing with EU citizens. What becomes apparent is a tendency of the authorities to ignore or lessen the privileges conferred by EU citizenship and to try to facilitate the removal of unwanted or difficult persons, regardless of their EU rights.
2. The Exceptionalism of the Italian Measures
Italy is by no means an exception, and it has not been the only country breaching legal provisions related to freedom of movement. The latest monitoring report on the implementation of the Directive 2004/38 shows the reluctance of many states to apply it and the failure of most to do so correctly.
There have been 1800 individual complaints, 40 questions from Parliament, 33 petitions and 5 infringement proceedings for incorrect application of Directive 2004/38/EC (EP A6-0186/2009). Much like in Italy, in the past two years, EU citizens have been detained in centres of illegal immigrants together with non-EU citizens, in Belgium; before approving residence, Greek authorities ask for documents not stipulated for in the Directive (the criminal record); and special ID cards and residence cards are issued for foreign residence in several MS.
A study of ECAS in 2009 suggests that, among other factors, it is also the insufficient involvement of the Commission that has influenced the delays and incorrect application of the Directive in national legislations. The Study concludes that not enough time and money resources have been invested in the preparation phase and that the Commission's delay to publish guidelines in the implementation of the Directive also accounts for some of the incorrect or ambiguous interpretations at national levels (ECAS 2009).
Even so, the Italian 'security package' seems to impose itself by the magnitude of its exceptional approach. The crack down on crime paradigm has allowed for the use of disproportionate and discriminatory measures that have affected and are likely to affect in the future large numbers of individuals. Furthermore, what is remarkable is the extent of the politization of the immigration debate and of the outward official support for discriminatory measures.
On a backdrop of increased concern regarding immigration and considering the overall approach towards immigration, the brutal death of Giovanna Reggiani became the 'wrong murder at the wrong time', as Italian lawyer Stefano Maffei called it (Angelescu 2008: 2). This then triggered a chain of public and media reactions, which, favoured by the political setting, went beyond the usual 'emergency' situations characterizing previous immigration reactions.
In this context, what the Italian authorities seemed to be doing was to tackle a serious and complex issue with short-term, discriminatory and disproportionate measures. Judging by the effects and reactions it triggered, the 'security package' has been until now the most controversial acts of migration management in the country. Moreover, one year into home, EU and international criticism, 'the degree of exceptionalism emerging from the current Italian status quo is expanding' (Merlino 2009:2).
As Merlino rightly points out, no real action has been taken to correct for these measures, and even more, new restrictive legislation proposed by the Northern League has been approved by the Senate and is waiting the decision of the Chamber of Deputies. The amendments made to the initial draft law for public security now include demands for doctors to report on illegal immigrants to national authorities, raise taxes for residence permits to an interval from 80--200 euros and allows for citizen patrols to complement formal security actions (Merlino 2009: 1).
VII. PRESERVING THE FREEDOM OF MOVEMENT IN THE EU. CONCLUSIONS AND RECOMMENDATIONS.
In Rome, in 1957, it was Italy that convinced other reluctant states to insert provisions regarding the free movement of persons in the text of the Treaty, in order to enhance for the mobility of its workers (Favell 2003). It should be ironic that it is here where such an unprecedented breach of this right has taken place.
It is difficult to project the long-term consequences of the present package for the management of migration and the integration of the millions of migrants that Italy so needs at present. Its effects are not simply of a legislative, but also of a symbolic nature and the current policies might have set back a process of migrant integration that Italy may need to face sooner than it wants to. Ironically the Romanians might be one of the groups with the greatest potential to be integrated: lower transaction costs--the similarities in language and culture-could mean a lesser need for state or other institutional structures to invest in integration measures!
While the underlying causes of the crisis can be found in the straining inflow of migrants and the previous record of immigration management, the escalation of the immigration issue seems to be rather the result of political and media framing of this current challenge facing Italian society. Thus, before being able to deal with the substantive issues regarding its new status as immigration country or the integration of Roma, the first step that needs to be taken by the authorities is to remove the unlawful obstacles to mobility and switch the official approach towards a more balanced discourse and a more realistic evaluation of the current migration situation.
Furthermore, the measures adopted by the Italian authorities since 2008 mark a return to a type of security-oriented management of migration that seemed forgone within the common market logic. As such, they shed light on some of the inner challenges of the migration regime of the country, as well as being reflective of the problematique created by the recent Eastern enlargement. There are many levels of analysis and important questions to be asked related to the effects of the East-West migration, the management of immigration and in particular of irregular immigration in Europe, the precarious and discriminated situation of Roma in the continent. These are all essential matters to be tackled in order to further consolidate the EU 27 and it is precisely for these reasons that responsible and sustainable mechanisms need to be created.
Considering its function as guardian of EU principles and Treaties, the Commission should play an active role in restoring the legal order that has been broken with the broken by the 'security package'. The Commission's interventions have been essential in preventing an escalation of the situation. However, as Italian authorities are moving towards further restrictive measures and have not yet withdrawn the problematic pieces, there may be a need for further action on EU level. The message that the Commission transmits will be important not only to clarify the situation of EU migrants in Italy, but also to avoid the recent events from becoming a precedent for further unilateral action of Member States.
There are several goals that the Commission should aim at in the following period. Of immediate attention is reviewing and potentially sanctioning (8) any pieces of legislation that are not in conformity with EU law. Secondly, any loopholes in the text of the Directive 2004/38 should be corrected. Responding to calls of the EP (A6-0186/2009) and other observers, the Commission should develop guidelines to ensure a uniform interpretation of the categories of 'public policy', 'public security' and 'public health' and to clarify conditions for denying the right to move and reside freely, including those referring to grounds for expulsion, and the minimum amount regarded as 'sufficient resources' under the Directive 38/2004.
Thirdly, the Commission should continue monitoring and enforcing the correct implementation of legislation pertaining to freedom of movement in the Member States. To this purpose the EC should request periodic reports from Member States about the implementation of freedom of movement legislation; possibly also establish an expert group with the aim of supporting the implementation of the freedom of movement legislation by collecting information and best practice data. Last but not least, it should strongly encourage the inclusion of immigrant integration policies and special integration policies regarding the Roma in national strategies for social inclusion and social protection through the Open Method of Coordination.
Annex: List of interviews
I want to kindly thank my interviewees for their generous time and answers:
* Corneliu Alexandru, Ministry of Internal Affairs, Director General. Interview 19th December 2008.
* Francesco Calogero. Permanent Representation of Italy Brussels. Justice and Home Affairs Coordinator. Interview 23rd February 2009.
* Mark David OSI Brussels. Interview, 24th February 2009.
* Bernd Hemmingway. Regional Representative IOM Brussels, Interview 20th February 2009.
* Michele Lombardi. Italian State Police, Immigration Office. E-mail exchange 6th April 2009
* Bogdan Marinescu. Permanent Representation of Romania to the EU. Minister Councellor. Head of Justice and Home Affairs Unit. Interview 3rd February 2009.
* Dana Spinant. European Voice, Editor. Interview 27th February 2009
* Kristof Tamas. European Commission, DG Justice, Freedom and Security. Interview 25th February 2009.
* Andrei B. Tarnea. Romanian Information Centre in Brussels, Director. Interview 20th February 2009.
* Adnkronos (2009). Linea dura di Maroni: nei primi 2 mesi oltre 3.000 clandestini espulsi. 13thMarch. http://www.adnkronos.com/IGN/ Cronaca/?id=3.0.3096518731;retrieved 15th March 2009
* Aebi M. F., Delgrande, N. (2009). Annual Penal Statistics. Council of Europe. SPACE I [PC-CP(2009) 01final.]http://www.coe.int/t/e/legal_ affairs/legal_co-operation/prisons_and_alternatives/ statistics_space_i/PCCP_2009_%2001R apport%20SPACE%20I_2007_090505_final_re v%20.pdf
* Agrela, B (2002). Spain as a Recent Country of Immigration: How Immigration Became a Symbolic, Political and Cultural Problem in the 'New Spain'. The Center for Comparative Immigration Studies.
* Angelescu, I. (2008). All New Migration Debates Commence in Rome: New Developments in the Securitization of Migration in the EU. eumap.org
* Baldoni, E. (2003).The Free Movement ofPersons in the European Union: A Legal historical Overview. Pioneur. http:// www.obets. ua.es/pioneur/documentos_public.php
* Baldwin-Edwards, M.(1997).Southern European Labour Markets and Immigration: A Structural and Functional Analysis. Mediterranean Migration Observatory, Panteion University, Athens, Greece. http://aei.pitt.edu/ 1079/
* Barrot, J. (2008). Declaration on the 'Italian Security Package.' 23 March http://ec.eu ropa.eu/commission_barroso/barrot/news/arch ives_2008_en.htm
* Barnard, C. (2007).The substantive law of the EU: the four freedoms. Oxford University Press
* BBC. Italy-Romania plea over migrants The prime ministers of Italy and Romania have urged the EU to do more to help integrate migrants. 11th November 2007 http://news .bbc.co.uk/2/hi/europe/7084766.stm Retrieved 25th March 2009
* Bonino, E., Marinus, J., Wiersma and Wilkens, A. Europe must end violence against the Roma. 4 June 2008. The Financial Times. Accessed 15 March 2009 http://www.ft.com /cms/s/ 0/5f c9f3a8-3238-11dd-9b87-0000779fd 2ac.html?nclick_check=1
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* European Roma Rights Centre (ERRC), Roma Centre for Social Intervention and Studies (Romani CRISS), Roma Civic Alliance (RCR), Centre for Housing Rights and Evictions (COHRE) and Open Society Institute (2008), Security a la Italiana: Fingerprinting, extreme violence and harassment of Roma in Italy, ERRC, Budapest http://www.errc.org/db/ 03/2A/m0000032A.pdf.
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* European Parliament (2007). Resolution of 15 November 2007 on the application of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States, P6_TA(2007)0534, Strasbourg, 15 November.
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(1) The initial countries that had opened their markets were the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Poland, Slovenia, Slovakia, Finland and Sweden. They were followed by Spain, Greece, Hungary and Portugal as of 1 January 2009. See DG Employment, Social Affairs and Equal Opportunities website.
(2) Cross-border migration in 2005 reached barely 4% on a European level, whereas only 18% of Europeans had ever moved outside their region. Compared with the impressive 32% figures of cross-state movers in the US, these numbers appear low. Of course, one should take into consideration the different transaction costs of moving abroad in the EU, non-existent in a culturally and linguistically homogenous US (Fouarge 2006).
(3) Interestingly, this treatment is not isolated to foreign newcomerss, but had also been applied decades before to the poor, Southern internal migrants (Strati 2006).
(4) Spain for example had a 32% foreign prison population, Germany 26%, France 19%, Belgium 42%. (Aebi and Delgrande 2009)
(5) The minimum income is set at 5,061 per capita, 10,123 for a family of up to three persons and 15,185 for families composed of four or more members. See Merlino (2009: 9).
(6) See also reactions from the Fundamental Rights Agency and the Council of Europe (CommDH(2008)18), the ERRC and a multitude of other national and international civil society actors.
(7) See also Steve Peers: The UK proposals on EU free movement law: an attack on the rule of law and EU fundamental freedoms. Statewatch Analysis.
(8) In the case of breach in EU law, Article 226 states: 'If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.'; Art 228(1) further provides that: 'If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.'
* Anca Oprisor Domnar is enrolled for a post-graduate program at Hertie School of Governance in Berlin, Germany.
Table 1. Number of Foreign Residents (1000) Year 1951 1971 1991 2001 2006 2008 Residents 50 120 350 1 300 2 300 3 500 (aprox.) Sources: ISTAT 2007, 2008 Table 2. The Security Package proposed by the Council of Ministers, 21st May 2008 * Law Decree (Decreto Legge) No. 92 on 'Urgent measures in the field of public security', amended and converted into law by Law No. 125 of 24 July 2008 * Three legislatives decrees (Decreti Legislativi) that amend the national legislation transposing Council Directive 2004/38/EC22 on EU citizens' freedom of movement and residence, Directive 2003/86/EC23 on the right to family reunification and Directive 2005/85/EC24 on refugees' status recognition procedures * A governmental draft law26 on 'Provisions in the field of public security' (Act of Senate No. 733) * A decree of the president of the Council of Ministers declaring the state of emergency in relation to the settlements of nomadic communities in the regions of Campania, Latium and Lombardy Source: Merlino (2009)
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|Author:||Domnar, Anca Oprisor|
|Publication:||Romanian Journal of Political Science|
|Date:||Mar 22, 2009|
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