270 COMPETITION LAW IN TOURISM misleading average consumers on the price (...) and not allowing them to compare the rates proposed by the other airlines”20. The Authority claimed that Arts. 20, 21 and 22 of the Consumer Code, i.e. Legislative Decree no. 206 of 2005 had been violated. After being informed such sub-procedure would be implemented21, the airline claimed the existence of fumus boni iuris, recalling a judgment by the Court of Justice22, according to which the carrier is free to set applicable tariffs to hand luggage exceeding the reasonable size and weight, causing additional travel and storage costs. Since the small bag “would be sufficient to meet the essential needs of the traveller and store personal belongings”, packages that exceed the “reasonable” size would be subject to an additional fee. Furthermore, the company denied the recourse to periculum in mora as the risk for the consumer caused by the new measure is of an economic nature, therefore fully remediable. This means that there would be no irreparable prejudice capable of justifying a precautionary measure. The Competition Authority regarded this action as an improper commercial practice and cited (for various reasons) the aforementioned judgment of the Court of Justice23, already referred to by the airline, because, according to that judgment, “hand baggage must be considered an indispensable element” and “its transportation cannot be subjected to a supplement of price, on condition that (...) baggage meets some reasonable requirements, in terms of weight and size”24. The European judges had been asked to assess the compatibility of the Spanish law (which required checked baggage to be subject to no fee), with Art. 22, paragraph 1, of the Regulation (EEC) no. 1008/2008, according to which, the carriers “can freely set the rates”25. The decision was based on a joint reading 20 Such is the text of the action taken by the Italian Competition Authority on 31 October 2018, no. 27398, cit. 21 The notification of commencement of the precautionary action was issued on 17 September 2018. 22 See Court of Justice, section V, 18 September 2014, causa C – 487/12, Vueling airlines sa c. Instituto galego de consumo de la xunta de Galicia, in Dir. trasp., 2015, 436 and following. 23 See Court of Justice, section V, 18 September 2014, causa C – 487/12, Vueling airlines sa c. Instituto galego de consumo de la xunta de Galicia, cit. 24 See Court of Justice, section V, 18 September 2014, causa C – 487/12, Vueling airlines sac. Instituto galego de consumo de la xunta de Galicia, cit. 25 See Bocchese, La Corte di giustizia europea interpreta le disposizioni sulle tariffe aeree presenti nel Reg. (CEE) no. 1008 (2008), in Dir. trasp., 2015, 439 and following and, for a more general approach, from the same author, La rifusione della disciplina comunitaria sulla prestazione dei servizi, ibid., 2009, 307 and following; Deiana, Problematiche giuridiche del trasporto aereo low cost, ibid., 2010, 671 and following; Zampone, Il ruolo delle autorità nazionali nella valutazione dei requisiti economico – finanziari delle compagnie aeree, tra esigenze di liberalizzazione, sicurezza e tutela dell’utente, ibid., 2012, 87 and following.
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