On 8 February 2022, the Italian "hand baggage policy" case came to an end.(1) The Italian Council of State issued judgment No. 879/2022, which rejected the appeal brought by the Italian Competition Authority (AGCM) against the decision of the first-instance judge. This confirmed the full compliance of Wizz Air's hand baggage policy with all regulatory and applicable consumer protection rules.
The case dates back to 31 October 2018, when the AGCM ordered Wizz Air to suspend the implementation of its hand baggage policy. The policy was to charge passengers extra for bringing a standard-sized trolley (ie, up to 55x40x23 centimetres) on board flights departing from 1 November 2018.
On 29 October 2019 the legal proceedings before the Administrative Tribunal of Lazio (TAR Lazio) led to the issuance of judgment No. 12455/2019, by which the judge of first instance upheld Wizz Air's challenge and annulled the fine imposed by the AGCM.
The AGCM appealed against the TAR Lazio's judgment and reiterated its arguments alleging Wizz Air's unfair conduct:
By separating the supplement fare for hand baggage from the total price of the basic fare . . . thus removing an essential and foreseeable element from the final price, thereby requiring the consumer to include such a supplement at a later stage of the purchase process and hiding a non-transparent increase in the tickets' final price.
The Italian Council of State disregarded the AGCM's arguments and ruled that the fares proposed at the time of ticket purchase were displayed in a clear manner so as to be easily understandable to consumers, and any passenger visiting the airline's website could easily obtain all the information needed to calculate the cost payable for boarding a second "large" hand baggage item as well.
Another key aspect of the Italian Council of State's decision related to the fact that the basic fare offered by Wizz Air allowed passengers to take on board one piece of hand luggage without additional charge. In particular, any passenger could always take on board both a hand baggage bag of 40x30x20 centimetres (with a tolerance of a further five centimetres for the wheels) and all the additional personal effects listed in article 14.1.6. of Wizz Air's general conditions of carriage (ie, small personal property such as a coat, a document holder or reading materials).
The Italian Council of State also confirmed that the hand baggage policy implemented by Wizz Air was in compliance with the case law of the European Court of Justice (ECJ). It made particular reference to the ECJ judgment on the Vueling case, C-487/12. Indeed, the ECJ judgment stated that hand baggage is an essential item of passenger air transport but it did not indicate what the relevant dimensions (maximum and minimum) or weight should be. Accordingly, the principle affirmed in the judgment had to be reasonably applied "on condition that such hand baggage meets reasonable requirements in terms of its weight and dimensions". The AGCM had not clarified the reasons why, in its opinion, the hand baggage dimensions allowed under the Wizz Air policy would qualify as unreasonable.
According to the Italian Council of State, the conclusion was also consistent with the national rules governing the matter, and in particular, Italian Ministerial Decree No. 1/36 dated 28 January 1987 and the subsequent implementation Circular APT-09, issued by the Italian Civil Aviation Authority on 8 May 2001, which defined "hand baggage" as articles that passengers may carry on board to be placed in the storage compartments above or below the front seat, without imposing minimum dimensions or weight, since these depend on the capacity of the aircraft.
During the proceedings before the Italian Council of State, the International Air Transport Association (IATA) also intervened, in the interests of all the airlines, to support Wizz Air's arguments, stressing the legitimacy of the Hungarian carrier's baggage policy.
With this judgment, the Italian Council of State's judgment has definitively recognised the unlawfulness of the fine of €1 million imposed on Wizz Air on 20 February 2019 by stating unequivocally that the Hungarian carrier's commercial practice is fully compliant with both EU legislation and case law as well as with national rules governing the matter.
The absolute relevance of the subject matter and the fundamental impact of this judgment were further confirmed by the intervention of IATA, which considered the issue in question as at the heart of a carrier's freedom to set fares and make their own commercial decisions while protecting the rights of both passengers and consumers.
For further information on this topic please contact Laura Pierallini or Marco Marchegiani 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.
(1) For further information on this case, see "Italian antitrust procedure in respect of airlines' new hand baggage policy" and "Wizz Air's fine for hand baggage restrictions annulled".