THE ESSENTIALITY OF A LARGE HAND LUGGAGE 367 airlines have contractual clauses that allows them time to evaluate on a discretionary basis what is the right period for the baggage in the hold to be returned, using the term “reasonable time”, if the baggage is not embarked on the same flight as the passenger. Not to mention the risk that the luggage will be lost or damaged23. To further analyse these issues, another element not to be underestimated for the purposes of the essentiality of large hand luggage is the type of flights performed by the two air carriers in question. Neither of them carries out long range routes, but rather focuses on short and medium range. As a short duration flight, any extra waiting time for baggage in hold becomes a significant portion of the total flight duration and not something travellers can feel indifferent to. The proof is that in the face of these new travel conditions, most travellers have opted to purchase extra hand luggage by paying for it as an additional service, or, in compliance with the old travel conditions, they have acquired priority boarding at a higher price, which also allows them to bring their trolley onto the aircraft. It has long been common practice for low-cost airlines to allow access to a maximumnumber of luggage in the overhead compartments for capacity and security reasons, including information in the conditions of the contract24. These conditions are subject to unfairness, as in the present case, the airline deprives the passenger of an essential transport service, thus forcing them to purchase a more expensive ticket to be among the first to board the aircraft and be allowed to bring a trolley with them on board. One clause that is present in the general conditions of some airline companies and that has elements of unfairness under the Art. 33, paragraph 2, lett. d), c. cons., reserves the carrier the right to refuse persons or their baggage on board for various reasons such as safety, conduct of the individual that, in view of a final commitment by the consumer from the time they conclude the contract, the performance of the carrier is subject to the unquestionable discretion of the carrier, without even providing a refund of the sums paid, except for embarkation fees25. 23 See, among others: M.C. Dessardo, Ritardata consegna del bagaglio e diritto a un equo risarcimento (Delayed delivery of baggage and the right to fair compensation), in Riv. It. Dir. Tur., 2013, 7, pp. 82 et seq; F. Brugnone, cit.; S. Vernizzi, cit.; V. Manca, Ritardo aereo e danno esistenziale (Air delay and non-pecuniary loss), comment on GdP Milan, 19 February 2010, No. 3541, in Riv. It. Dir. Tur., 2011, 3, p. 107; N. Fabbrio, La risarcibilità del danno morale entro il limite della responsabilità del vettore aereo e l’assicurazione obbligatoria (The compensation of non-material damage within the limit of the air carrier’s liability and the compulsory insurance), in Dir. Trasp., 2010, p. 738. 24 Easyjet allows a maximum of 70 bags of the maximum size of 56x45x25 to be placed in the hatboxes, starting from the seventy-first the bags are transferred to the hold and returned along with the baggage delivered. www.easyjet.com, 12 April 2019. 25 V. Franceschelli, C. Vignali, G. Giuggioli, Volare in equilibrio. Parere in materia di clausole vessatorie nei contratti di trasporto aereo nazionale/comunitario di persone e bagaglio al seguito (Fly in balance. Opinion on the subject of unfair terms in national/community air transport contracts for people and luggage). Milan Chamber of Commerce website.
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