COMPETITION AND TOURIST PROTECTION 271 of Articles 22 and 23 of the same regulation. The first provision gives the company the power to set the fee, while the second was set to safeguard the interests of travellers, ensuring the tariffs’ transparency. Therefore, according to Art. 23, paragraph 1, the essential and foreseeable elements of the fee must always be specified, while the supplements relating to non-compulsory or indispensable services must be “communicated in a clear, transparent and unambiguous manner at the beginning of any booking process and their acceptance must take place through explicit consent (opt-in)”26. For the Court, any cost of carrying hand luggage must also be specified (although this is not provided for by Art. 23, paragraph 1), as it is a core element of the total fee; for the very reason that the airlines should offer a comfortable journey, the service cannot be offered with a surcharge. The airline argues that the checked baggage, which is an additional ancillary service, can require payment of surcharges as it requires higher storage and custody costs27. On the basis of the data provided by the company, the Competition Authority found that larger bags and luggage are an important element for the passenger. Few people show up at the boarding gate with just one item of hand luggage, while many carry one large bag in addition to a smaller one or a suitcase. Therefore, the airline allegedly promoted its offer with “incomplete description of the proposed price, not including that of the large hand luggage, an indispensable and unavoidable element of the travel, falsely represented as the cause of nonforeseeable costs”28. By comparing this method to other airlines’ strategies which allow passengers to bring large sized hand luggage we can conclude that “the option of carrying only one small sized item of hand luggage, suitable to occupy a reduced space, (...) the one beneath the seats, does not seems reasonable for the purpose of carrying all personal belongings, nor (...) with the compliance with the applicable safety regulations”29. As such, charging an extra fee for a larger item of hand luggage alters the correct structure and definition of the fee and the airline hides a non-transparent increase, basically deceiving the 26 See Art. 23, paragraph 2, second subparagraph, of Regulation (EEC) no. 1008/2008. 27 This principle had already been affirmed by the Court of Justice, section III, 19 July 2012, C – 112/11, Ebookers.com Deutschland gmbh c. Bundesverband der Verbraucherzentralen und Verbraucherverbande – Verbraucherzentrale Bundesverband ev, with a note of Rasi, I supplementi di prezzo opzionali per prestazioni offerte da persona diversa dal vettore aereo, in Dir. trasp., 2013, 173 and following. 28 Such is the text of the action taken by the Italian Competition Authority of on 31 October 2018, no. 27398, cit. 29 Such is the text of the action taken by the Italian Competition Authority of on 31 October 2018, no. 27398, cit.
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