INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW they are not inherent in additional services, and the fares must be specified from the outset. It is no coincidence that the airline may consider hand luggage as the subject of an additional charge, provided that this is clearly communicated at the time of booking45. Similarly, it is unlawful to break down the price of the service, so that the consumer has to determine it "by summation in a composite picture (...) not immediately perceivable"46. A fortiori, this applies to the use of automated profiling procedures. In fact, many carriers adopt so - called "dynamic pricing", which involves variability based on algorithms that analyse behaviour; for example, they are able to work out how many requests have been made for a given flight, with a noticeable increase in the fare in the face of high demand. The algorithm can increase the fare every time the same user checks the possibility of booking, especially when using the same computer. Therefore, there is often processing of which the traveller is unaware. Seldom, the company conceals or presents in an obscure, ambiguous or incomprehensible way information that the consumer should know. In this perspective, the rationality of the solution adopted by Article 1 of Decree - Law No. 104 of 2023 in its original formulation is strengthened, since the prohibition of the dynamic fixing of fares, if this leads to a price two hundred per cent higher than the average flight price, could offer adequate protection. Instead, the current rule requires the demonstration of abusive conduct and profiling based on the subjective conditions of the traveller is illegitimate, but can only be proved by complex reconstructions. Precisely because of the differential characteristics of the flight, even presumptive demontration presents considerable problems and leaves ample room for doubt. In this sense, the original and somewhat drastic idea of Decree - Law No. 104 of 2023 had a certain foresight. However, already according to our Consumer Code and the previous measures of the Authority, profiling is an unfair practice, because it violates criteria of good faith and gives prominence to distorting elements, such as the traveller's 45 See Court of Justice, sec. V, 18 September 2014, C. - No. 487 / 2012, Vueling Airlines SA v. Instituto Galego de Consumo de la Xunta de la Galicia, in Giur. it. rep., 2014, according to which “European Union law grants air carriers a freedom in relation to tariffs which encompasses all the commercial services related to the performance of the air transport contract, including services such as baggage check-in. Therefore, carriers may choose to include the cost of such a service in the basic fare or to offer it as an additional surcharge”. 46 Cf. Cons. Stato, sec. VI, 27 October 2011, no. 5785, in Giur. it. rep., 2011; Cons. Stato, sec. VI, 9 June 2011, no. 3511, ibid., 2011.
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