CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM is difficult to establish whether and to what extent companies are tempted to conceal their evaluation systems behind descriptions of convenience"7. To some extent, the issue came to the attention of the legislator, who declared his conviction that he had to correct imbalances originated by the epidemic situation and increased by the use of algorithms8, but he was only able to demonstrate the first of the two prerequisites of his intervention to protect the consumer, in particular on the routes with the islands, linked to the instances of so - called territorial continuity9. In fact, it is uncontroversial how the disruption of fares originated with the epidemic10 and was accentuated by the war in Ukraine, with the related inflationary tensions, while the causal link with the use of algorithms has been harshly contested and, in particular, the companies have denied the undue use of automated evaluations on the traveller's economic possibilities11. The Italian Government's approach in August 2023 was somewhat drastic; in fact, art. 1, paragraph 1, of Decree - Law no. 104 of 2023 placed a prohibition on calculating fares by means of algorithms, when it would harm the needs connected to the so - called territorial continuity and, that is, in relation to the priority connections with the islands, if there was "a sale price of the ticket or ancillary services two hundred per cent higher than the average fare of the flight"12. This last requirement, the fundamental one, might be surprising, since it seems to link the prohibition and its operation to the occurrence of an identifiable fact a posteriori. In reality, although the rule was set out in a singular way, it was to be interpreted as permitting recourse to algorithms only if their mathematical structure prevented price 2020, 5 - 16 June 2020, 5 ff.; G. Gaudio, Le discriminazioni algoritmiche, in Lav. dir. Europa, 2024, 3 ff. 7 See E. Gragnoli, The employment relationship, automatic decisions and their limits. The regulation of non - understandable phenomena, loc. cit., 6 ff. 8 In general, see M. D. Wittman - P. P. Belobaba, Personalization in airline revenue management. Heuristics for real - time adjustment of availability and fares, in Revenue pricing manag., 2017, 16, 376 ff. 9 See also F. Ferraro, L'evoluzione della politica sugli aiuti di Stato a sostegno dell'accesso al finanziamento nell'attuale situazione di crisi economica e finanziaria, in Dir. un. eur., 2010, 335 ff.; M. L. Tufano, La disciplina degli aiuti di Stato nell'Unione europea: dal controllo all'enforcement, ibid., 2010, 381 ff.; P. Vesterdorf - M. Nielsen, State aid law of the European Union, London, 2008, 56 ff.; Guigley, European State aid law and policy, Oxford, 2009, 39 ff. 10 See: T. Thepchalerm - P. Ho, Impacts of Covid - 19 on airline business: an overview, in Journ. busin. econ. rev., 2021, 81 ff. 11 On similar problems that have emerged in the tourism sector, with particular regard to hotel bookings, see G. Abrate - G. Viglia, Strategic and tactical price decision in hotel revenue management, in Tour. manag., 2016, 55, 123 ff. 12 See Article 1(1) of Decree - Law No. 104 of 2023, in its original text.
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