338 COMPETITION LAW IN TOURISM often ends up affecting tourism as well, due to their multidisciplinarity12. These are areas such as environmental protection, cultural heritage, territorial government, ports and airports, transport networks and, most importantly, competition. When regulating such transversal matters, the national legislator and the Authoritymight, in fact, indirectly intervene in the tourismsector13. Furthermore, the planning and management guidelines for tourism structural funds and investments, abroad and in Italy, are also defined at the State level. Finally, it should be considered that tourism is governed by wide-ranging principles, which essentially have a constitutional or European dimension, such as the principle of protection of competition, pursuant to art. 117 of the Constitution and the freedom of economic initiative, pursuant to art. 41 of the Constitution. From this point of view, the Constitutional Court affirmed that, if the legislator (national or regional) or the Government restricts the free exercise of economic activities without justifiable reasons, it will clash with the economic liberalisation principle, as affirmed several times by European and national judges and recognised by articles 41 and 117 of the Constitution14. In fact, as recognised by the Constitutional Court itself “the “protection of competition” mentioned in the second paragraph, letter e), of article 117 of the Constitution – which also falls within the exclusive competence of the State legislature – includes measures that aim to open a market by removing the constraints on the methods of exercise and access to economic activities, including both protection and market promotion measures”15. Therefore, the liberalisation provisions, which favour market access by other economic operators and prevent the introduction of barriers capable of distorting market competition, fall entirelywithin the sphere of competition16. Furthermore, the Constitutional Court affirmed that private economic initiative and activity are free, and everything that is not expressly prohibited by law is allowed17. 12 R. Santagata, Diritto del Turismo, UTET, 2018. 13 V. Franceschelli & F. Morandi, Manuale del diritto del turismo, Giappichelli Editore. 2019 14 See, ex multis, on the topic: EU Court of Justice, judgment of 6 October 2015, case C-354/14, Sentence of the Constitutional Court no. 117/2015. 15 See, ex multis, Constitutional Court, judgment no. 83/2018; no. 125/2014 and no. 299/2012; no. 401 of 2007; judgment no. 150 of 2011. 16 See, ex multis, Constitutional Court, judgment no. 47/2015, as well as Regional Court of Lazio (TAR) judgment no. 6755/2016. 17 See, ex multis, Constitutional Court, judgment no. 200/2012.
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