COMPETITION PROTECTION IN THE TOURISM SECTOR IN ITALY 345 their potential clients, or should be imposed proportionally to each facility’s value – so that lower categories don’t get overwhelmed with unjustified constraints. On a separate note, the limitations that the Regulation introduced on food and beverage services, as well as on hygiene and health requirements, were also liable to limit the offers of the various categories of non-hotel facilities, negatively affecting the relative competitive capacity and the free determination of their management. In particular, the Authority considered discriminatory the provision which only allowed bed and breakfasts and guesthouses to offer guests packaged foods or those coming from registered businesses or otherwise supplied by means of special machines or dispensers. According to the Authority, this constituted an unjustified limitation of the freedom of economic initiative of other types of non-hotel facilities. Moreover, it also creates an unjustified limitation for the bed and breakfasts and guesthouses themselves, because it could hinder the use of different methods of serving food and drinks, with the risk of generating potential negative repercussions on the competitiveness and competitive dynamics in the non-hotel tourism sector30. That statement is in line with a consolidated orientation of the Authority, which repeatedly underlined the discriminatory character of limitations and foreclosures that apply to certain types of non-hotel accommodation facilities31. This orientation received the endorsement of the jurisprudence. The case law confirmed, in fact, that any limitation of freedom of economic initiative that is not justified by reasons of general interest would be indicative of an authoritative public intervention in the economy. Such interventions are not allowed within those sectors whose dynamics should instead balance naturally with the intersection of supply and demand, depending on the availability, diversity and quality of the services offered – and such is the tourism sector. Furthermore, similar constraints would worsen the burden of administrative costs on hospitality businesses, in contrast with a desirable policy of reducing these charges. Finally, they would unjustifiably and arbitrarily affect the economic opportunities of those who are interested in exercising the accommodation activity being discussed but cannot (or, legitimately, do not want to) adhere to predefined business choices – which clash with the freedom of economic initiative. 30 ICA Opinion, AS1542, 1 August 2018, in Bull. no. 43/2018 31 See, for example, the opinions of the Authority no. AS1380 of 28 April 2017, in Bull. no. 22/2017, and AS1447 of 17 August 2017, quoted.
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