376 COMPETITION LAW IN TOURISM In all these cases, the subjective state of the carriers is of little importance, even in the presence of good faith; what is relevant is the potential conditioning of the behaviour of the recipient of the commercial practice. Thus, in the cases under consideration, failure to compare carriers’ tariffs fairly with those of competitors would have made them an advantage in the face of a disadvantage for the consumer who purchased an incomplete or lower service at the same price (and a disadvantage for competitors). The infringement of the rules on commercial practices would seem quite evident. Also on this point, however, the two companies have appealed to the TAR of Lazio, complaining that the resolution infringes the principle of tariff freedom. The TAR first accepted the appeal and suspended the provision of the AGCM, considering that, “in balancing the interests to be assessed pending the discussion of the merit (it is to be considered) prevailing to maintain the res adhuc integra, since the return to the ‘old’ policy followed by a possible acceptance of the burden on the merit, with consequent reintroduction of the ‘new’ one, could create disorientation among the consumers themselves”. Than on 29 October 2017 the Administrative Court issued the verdict. The TAR considered that the AGCM did not identify the incorrectness of the commercial practice in reference to the way in which the cost of the ticket was presented, therefore having to believe that what was also proposed at the time of the initiation of the procedure can be considered outdated in the sense of the formal display clarity of the message proposed to the consumer on the website of the airline in question. The consumer was perfectly able to immediately understand the price in the hypothesis he wanted to embark the large baggage. Considering this verdict, in regards to the failure of the confirmation of the infringement of the rules on unfair commercial practices, it is still relevant to note the possible unfairness of baggage clauses, ex Consumer Code Art. 33. The question arises as to whether the content of these clauses as a source of imbalance and substantive inequity in the contractual regulation can be abused, since it aggravates the informationasymmetrybetweentheconsumer andtheundertaking51. 51 See, Trib. Roma, 21/01/2000, in Corriere giur., 2000, pp. 496 et seq, with comment by A. Orestano and A. Di Majo. On the qualification of the criterion of good faith (whether subjective or objective) for the judgment of unfairness of a clause and of the relationship of good faith with respect to the criterion of significance, see: F. D. Busnelli & U. Morello, La Direttiva 93/13 CEE del 5 aprile 1993 sulle clausole abusive nei contratti stipulati con i consumatori (The 93/13 EEC Directive of 5 April 1993 on unfair terms in consumer contracts), in Riv. notariato, 1995, p. 374; G. Lener, La nuova disciplina delle clausole vessatorie nei contratti dei consumatori (The new regulation of unfair terms in consumer contract, in Foro it., 1996, V, p. 160; V. Rizzo, Le clausole abusive: realtà e prospettive. La Direttiva CEE del 5 aprile 1993 (Unfair terms: reality and prospects. The EEC Directive of 5 April 1993), in Rass. Dir. Civ., 1993, p. 590.
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