Introduction
Facts
Decision
Comment
The Italian Council of State recently issued favourable judgments rejecting the two appeals brought by the Italian Competition Authority against the two airlines Wizz Air(1) and Ryanair.(2) The International Air Transport Association (IATA) intervened in support of the airlines in both proceedings.
In both cases, the existence of unfair commercial practices, in violation of the Italian consumer code, was ruled out. The two judgments are particularly relevant because they have confirmed that the hand luggage policy adopted by the airlines complies with both national and international sectoral regulations – no binding provisions state what luggage dimensions must be included in a basic level of service. The Council of State's judgment aligns with international case law.(3)
The dispute concerned the changes introduced in 1 November 2018, according to which a "basic" travel ticket no longer included a large cabin bag (ie, 55 centimetres by 40 centimetres by 23 centimetres), but instead only a small cabin bag (ie, 45 centimetres by 36 centimetres by 20 centimetres). The Italian Competition Authority considered this change to be a limitation of an essential and foreseeable element of the final price of the ticket.
The Italian Competition Authority brought three grounds of appeal and all were rejected by the Council of State, which considered them to be unfounded. Particularly relevant for the decision was the Italian Consumer Code's definition of "unfair commercial practices", whereby a commercial practice occurs when it:
is contrary to professional diligence and is false or is likely to distort to an appreciable extent the economic behaviour, in relation to the product, of the average consumer whom it reaches or to whom it is addressed, or of the average member of a group if the commercial practice is directed at a particular group of consumers.
The general definition recognises two types of practices: misleading and aggressive. In the present case, the Italian Competition Authority alleged that the commercial practice concerned was misleading. The misleading nature of a commercial practice depends on whether it is untruthful because it contains false information or is otherwise likely to mislead the average consumer.
However, in the opinion of the Lazio Regional Administrative Court and the Council of State, the change in hand luggage policy did not constitute a misleading practice as defined by the Italian Consumer Code since the airlines continued to recognise the possibility for passengers to carry luggage, although a smaller size than previously permitted with the purchase of a "basic" ticket. The new policy therefore had to be considered to fall within the scope of the carrier's commercial freedom.
The Council of State, confirming once again what had already been established previously, has put a definitive end to an issue that had been raised many times, closing the discussion regarding the new baggage policy adopted by Wizz Air and Ryanair.
For further information on this topic please contact Laura Pierallini or Chiara Nuzzo at Studio Legale Pierallini e Associati by telephone (+39 06 88 41 713) or email ([email protected] or [email protected]). The Studio Legale Pierallini e Associati website can be accessed at www.studiopierallini.it.
Endnotes
(3) See Vueling, Court of Justice of the European Union, 18 September 2014, Case C-487/2012.