INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW increases of two hundred per cent with respect to "the average fare of the flight", taken as the parameter of the permitted fluctuations. Thus, the prohibition was not absolute, but referred to the solutions chosen by companies, conditioned in their economic options and corresponding technical approaches. Although courageous, the rule imagined in August 2023 suffered from an original problem, that is it gave as proof the negative influence of the use of algorithms without this allegation having found any evidence, as the companies immediately highlighted in the press. On the other hand, Decree - Law No. 104 of 2023 referred the detection of the carrier's illegitimate conduct to an arithmetic calculation on the ratio between the "average flight fare" and the individual one, with intervention entrusted to the Competition and Market Authority and, therefore, to the public administration. The task of the same Authority would have been easy enough, because, upon plausible complaint by the traveller, it would have had to verify the respect of the proportion between average and individual consumer fees. Law No. 136 of 2023, converting Decree - Law No. 104 of 2023, is much more cautious13, since it refers all initiatives to the Guarantor Authority, which must ascertain "that the algorithmic coordination of the fares practised by airline companies in the aviation sector facilitates, implements or in any case monitors an agreement restrictive of competition, even if pre - existing, or ascertains that the level of prices set through a revenue management system constitutes an abuse of a dominant position"14. Therefore, the rule has a general object and concerns the entire national territory and, on the other hand, focuses on “algorithmic coordination”, seen as a potential factor of harm to the interest of consumers only if it restricts competition15, conceived by the Italian law according to logics consistent with those traditional in the European sphere16. Thus, there has been a shift from a provisional intervention on the use of algorithms 13 Article 1(1) was adopted by means of a decree-law, deliberated by the Council of Ministers, with effect from the date of publication in the Official Gazette (10 August 2023), but with loss of effectiveness if it was not converted into law within the next sixty days by the Parliament, by means of a special law. The provision was never applied, because Law No. 136 of 2023 had a different approach, sharply. 14 See Article 1(1) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 15 See A. Pappalardo, Il diritto della concorrenza dell'Unione europea. Profili sostanziali, Turin, 2018, 2nd ed., 99 ff., with particular regard to the structure of restrictive agreements, in the comparison between Italian and European law. 16 On the concept of abuse of a dominant position, comparing Italian and Community law, see C. Osti, Abuso di posizione dominante, in Enc. dir., ann., 5th vol., 1 ff.
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