370 COMPETITION LAW IN TOURISM 5. UNFAIR COMMERCIAL PRACTISES The Authority also wondered whether or not the abovementioned airlines have perpetrated unfair commercial practices when informing potential buyer of their flights. The doubt submitted to the Authority does not therefore pertain to the principle of tariff freedom, invoked by the airline already in the appeal accepted by Regional Administrative Court of Lazio on 22 November 201831 against the provision of 31 October 2018 of the AGCM, which had ruled the suspension of the new baggage policy shortly before its entry into force, with regard to the issue of a lack of transparency concerning the communication of the final transport price. The rulings of the Authority in question, in fact, denounced the two low-cost airlines of having violated Art. 21, paragraph 1 lett. b) and d) and Art. 22 of the Consumer Code for having misleading behaviour on the characteristics and price of the passenger air transport service. In fact, it is precisely Regulation 1008/2008 of the Parliament and of the Council, invoked by the succumbing parties, to limit the right to freedom of tariff enshrined in Article 22 with the duty of transparent communication of the same price, laid down in Article 23 of the paragraph 1 which states that the final price to be paid is always indicated and includes all applicable passenger or freight air fares, as well as all the taxes and charges which are inevitable and foreseeable at the time of publication, while optional price supplements must be communicated in a clear, transparent and unambiguous way at the beginning of any booking process and their acceptance by the passenger must take place on the basis of explicit “opt-in” consent. Considering the transport of the trolley not a supplement, but an essential and inevitable element of the fare, its transport cost must be included in the total fare price from the beginning, contrary to what is declared by the two airlines, which consider it instead an optional service. But, even if it were considered an optional element, as, however, decided by the Regional Administrative Court of Lazio32, its cost should still be indicated when the contract is stipulated in a clear, 31 Decree of the Regional Administrative Court No. 7046 of 22 November 2019. 32 Judgments 12455/2019 and 12456/2019. The TAR affirms that there is no evidence that the airline prevents the consumer from carrying hand luggage in the cabin, placing only limits on its size, but without weight limits (omissis). Nowhere in the judgment (Vueling) it is indicated what the minimum dimensions should be or maximum and the number of such items. The EU Court itself specifies that price surcharges cannot therefore be imposed in relation to these “provided that such hand baggage possesses certain reasonable requirements in terms of weight and size”.
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