INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW think of the determination of the fee on the basis of the traveller's economic condition. It is not at all easy to prove the harmful effects of such systems, no matter how careful the consumer is. Indeed, individual choices in air transport are conditioned by schedules and each flight satisfies different needs, so that the attention of people with their own expectations is focused on each one. The passenger rarely makes systematic comparisons between the various proposals, if any, because his attention is attracted by the time and day of departure. This prevents the normal traveller from realising the negative implications of profiling or, at the very least, proposes a partial or misleading representation of his individual needs and the characteristics of each service. The same applies to the Authority's analysis, even though it has superior resources at its disposal, since the characteristics of the journey, the date and time prevent a full comparison, all the more so at peak travel times. While it is difficult to assess the impact of algorithms on competitive dynamics, it is in the abstract plausible to verify the consequences of profiling, even if this could imply a considerable administrative effort. In fact, the analysis is entrusted to the Authority, which, by breaking down the constituent elements of the fee, should identify the one that is anchored to the traveller's economic availability. These price determination mechanisms are unfair commercial practices, with possible recourse to the protection provided by the Italian Consumer Code35; the issue of transparency in the determination of fees has long been known in the airline industry. In general, pursuant to Article 20(2) of the Code, a practice is unfair if "it is contrary to professional diligence and is false or likely to distort to an appreciable extent the economic behaviour (...) of the average consumer". The company's actions must be guided by the principles of good faith and fairness36, as set out in Articles 2 and 39 of the Code. Therefore, illegitimacy depends on the suitability of instrumental initiatives to influence the decisions of others37, so that “it is sufficient to demonstrate their detrimental 35 See Legislative Decree No 206 of 2005, as amended by Legislative Decree No 170 of 2021 (the so - called Consumer Code). See: M. Nisevic, Profiling consumers through big data analytics: strengths and weaknesses of Article 22 GPDR, loc. cit., 104 ff., with consideration for the link between so - called profiling and unfair commercial practices. 36 See M. Libertini, Clausola generale e disposizioni particolari nella disciplina delle pratiche commerciali scorrette, in Contr. impr., 2010, 73 ss.; G. De Cristofaro, Pratiche commerciali scorrette, in Enc. dir. Ann., vol. V., 1077 ss.; E. Camilleri, Pratiche commerciali scorrette, safety net e nuove vulnerabilità: prospettive e limiti, in Nuove leggi civ. comm., 2024, 201 ss.. 37 See M. Previti, Le pratiche commerciali scorrette nel trasporto aereo: la tutela del passeggero - consumatore, in Dir. mar., 2023, 699 ff. On the notion of professional, see C. Scapinello, La
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