378 COMPETITION LAW IN TOURISM When assessing the unfairness of a clause, the nature of the service covered by the contract must be taken into account, referring to the circumstances that exist at the time of its conclusion53 and this a fortiori if the fallacy of the commercial practice is confirmed54. In summary, the hypothesis of unfairness regards both the opacity of the content of the clauses, in violation of the principle of transparency and completeness, and their explicit content, which places the consumer in a condition of greater disadvantage compared to the professional who resells the same consumer a right already acquired and already paid for. This issue needs to be assessed in the presence of an imbalance contrary to good faith, in relation to the nature of the service covered by the contract and the circumstances existing at the time of its completion55. In regards to unfair clauses, past authoritative doctrine has already expressed itself in favour of the unfairness of those clauses, contained in different contractual regulations of the low-cost carriers, which allow airlines to stow large hand baggage in hold when a certain amount of luggage on board is exceeded, at the carrier’s discretion, all in the name of safety56. The passenger has the right to carry large hand luggage, but that right is conditional and weighs on the fact that an x number of passengers with trolleys do not embark the aircraft before them. Passengers may not know until the time of boarding, unless they have purchased a priority ticket, whether or not during the flight their personal belongings will actually be with them. 53 On the criteria for the evaluation of the vexation of the clauses, see: S. Monticelli, Sub Art. 1469-ter C.C. (Sub Art. 1469-ter of Civil Code), in E. Cesaro (ed.), Clausole vessatorie e contratto del consumatore (Unfair terms and consumer contract), Padova, 1998. 54 On the subject of significant imbalance, see: S. Troiano, Commento all’art. 1469-bis, I comma (Comment on Art. 1469-bis, first paragraph), in G. Alpa & S. Patti (ed.), Il Codice Civile Commentato (The Commented Civil Code), Milan, 2003, pp. 33 et seq. 55 As regards the criteria of good faith (objective or subjective), see: R. Sacco, La presunzione di buona fede (The presumption of good faith), in Ric. Dir. Civ., 1959, pp. 9 et seq; G.M. Uda, Art. 1469-bis (clausole vessatorie nel contratto tra professionista e consumatore) – 1° comma, la buona fede nelle clausole abusive (Art. 1469-bis (unfair clause in the contract between professional and consumer) – 1st paragraph, good faith in unfair clause), in G. Alpa & S. Patti (ed.), Clausole vessatorie nei contratti del consumatore (Unfair clause in consumer contracts), in Comm. Cod. Civ. Schlesinger, Milano, 2003, pp. 97 et seq. 56 C. Vignali, op. cit.
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