International Journal of Tourism, Travel and Hospitality Law Abu Dhabi | Estoril | Milan | Palma | Parma | Porto Alegre | Rende Sassari | Salamanca | Travna | Zagreb
International Journal of Tourism, Travel and Hospitality Law
ISSN 2184-8793 ISSNe 2975-9056 All Rights Reserved. No part of this journal may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. A written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This work is published for general guidance only and is not intended as a substitute for professional advice. While every precaution has been taken in the preparation of the text, the publishers and authors can accept no responsibility for the consequences of any errors, however caused. And Tis edition was published in 2024 by ESHTE, alongside other universities and institutions
International Journal of Tourism, Travel and Hospitality Law (IJTTHL) Founders: Carlos Torres, ESHTE (Portugal), Chiara Tincani, University of Verona (Italy), Claudia Lima Marques, Federal University of Rio Grande do Sul (Brazil), Francesco Morandi, University of Sassari (Italy), Francesco Torchia, University of Calabria (Italy), Silvia Feliu, University of the Balearic Islands (Spain), Monika Jurkova University of Trnava (Slovakia), Tatjana Josipovic, University of Zagreb (Croatia), and Vincenzo Franceschelli, University of Milano-Bicocca (Italy). Editor in chief and publisher: Carlos Torres, ESHTE (Portugal). Editors: Claudia Lima Marques, University of Rio Grande do Sul (Brazil), Chiara Tincani, University of Verona (Italy) Francesco Morandi, University of Sassari (Italy), Francesco Torchia, University of Calabria (Italy), Francisca Ramón Fernández, Valencia Polytechnic University (Spain) Michael Wukoschitz, President Emeritus of International Forum of Travel and Tourism Advocates (Austria), Marie Jull Sørensen, Aalborg Universitet (Denmark), Matija Damjan, University of Ljubljana (Slovenia), Mohamed El Halabi El Kayal, Sorbonne University Abu Dhabi (United Arab Emirates), Monika Jurčová, University of Trnava (Slovakia), Sara d’Urso, University of Milano-Bicocca (Italy), Sarah Prager, Chairman of the Travel and Tourism Lawyers Association (United Kingdom), Silvia Feliu, University of the Balearic Islands (Spain), Stephen Mason, TravelLaw LLP (United Kingdom), Tatjana Josipovic, University of Zagreb (Croatia), Valérie Augros, Avocat a la Cour (France), Vincenzo Franceschelli, University of Milano-Bicocca (Italy), Scientific Committee: Alfredo Batuecas Caletrío, University of Salamanca (Spain), Ana Branca Carvalho, IPV-ESTG (Portugal), Andrej Mićović, University of Kragujevac (Serbia), Antonia Paniza, University of the Balearic Islands (Spain),
Apostolos Tassikas, Aristotle University of Thessaloniki (Greece), Aránzazu Pérez Moriones, Public University of Navarre (Spain), Ardyllis Soares, University Center of Brasília (Brazil), Athina Kontogianni, European University Cyprus (Greece), Avelino Blasco, University of the Balearic Islands (Spain), Belén Ferrer Tapia, University of the Balearic Islands (Spain), Björn Steinrötter, University of Potsdam (Germany), Cecilia Fresnedo de Aguirre, University of the Republic (Uruguay), Charles Stotler, University of Mississipi (United States), Christophe Lachièze, University Paris 8 (France), Christopher Deacon, Stewarts (United Kingdom), Claudia Madrid Martínez, Central University of Venezuela (Venezuela), Danguolé Bubliene, Vilnius University (Lithuania), Dimitris Mylonopoulos, University of West Attica (Greece), Elina Moustaira, National and Kapodistrian University of Athens (Greece), Emmanuelle Llop, Equinox Avocats (France), Enrico Gragnoli, University of Parma (Italy), Ernst Führich, Kempten University (Germany), Felio José Bauzá Martorell, University of the Balearic Islands (Spain), Flavia Medina, University of Buenos Aires (Argentina), Francesco Gaspari, Unimarconi (Italy), Gianfranco Benelli, University of Sassari (Italy), Giorgi Amiranashvili, Ivane Javakhishvili Tbilisi State University (Giorgia), Humberto Gosálbez, University of Cordoba (Spain), Ieva Navickaitė-Sakalauskienė, Mykolas Romeris University (Lithuania), Ilie Dumitru, Bucharest University of Economic Studies (Romania), İlyas Çeliktas, Attorney at Law (Turkey), Inmaculada González Cabrera, University of Las Palmas de Gran Canaria (Spain), Irene Kull, University of Tartu (Estonia), Jaqueline Tanti-Dougall, President of IFTTA (Malta), Javier Melgosa Arcos, University of Salamanca (Spain), Jens Karsten, bxl-law SPRL (Germany), Joana Socias Camacho, University of the Balearic Islands (Spain), João Vidal, University of Algarve (Portugal), Jolanta Vilkevičiūtė, Aleksandras Stulginskis University (Lithuania), Jonas Thyberg, Konrad Advokater (Sweden), José Ángel Torres Lana, University of the Balearic Islands (Spain),
José Eugenio Soriano García, Complutense University of Madrid (Spain), José Tudela Aranda, University of Zaragoza (Spain), Josep Maria Bech Serrat, University of Girona (Spain), Karmen Lutman, University of Ljubljana (Slovenia), Klára Dvořáková, Prague Faculty of Law (Czech Republic), Lana Bubalo, University of Stavanger (Bosnia and Hercegovina), Loly Serrano Castro, UNAV (Spain), Lorenzo del Federico, University of Chieti-Pescara (Italy), Marcella Gola, University of Bologna (Italy), Marcilio Toscano Franca-Filho, Federal University of Paraíba (Brazil), Marcos Iglesias Caridad, University of Salamanca (Spain), Maria Ângela Carrascalão, National University of East Timor (East Timor), Marina Gunare, Baltic International Academy (Latvia), Mario Beni, University of São Paulo (Brazil), Mario Folchi, Institute of Air and Space Law Aerohelp (Argentina), Matilde Ceballos Martin, University of Almeria (Spain), Mayte Otero, University of Malaga (Spain), Mikko Laakso, Laki|Lehtonen (Finland), Milana Tomić, Legal Advisor at the Government of Montenegro (Montenegro), Nada Dollani, University of Tirana (Albania), Nancho Nanchev, Legal expert (Bulgaria), Olga Milinchuk, Zhytomyr Polytechnic State University (Ukraine), Olivier Dugardyn, Dugardyn & Partners law firm (Belgium), Pablo Mendes de Leon, International Institute of Air and Space Law, Leiden University (Netherlands), Patricia Benavides Velasco, University of Malaga (Spain), Péter Staviczky, Attaché responsible for State aid (Hungary), Pilar Juana García Saura, University of Murcia (Spain), Piotr Cybula, University of Physical Education in Krakow (Poland), Raul Perez Guerra, University of Almeria (Spain), Renato Santagata, University of Naples (Italy), Ronald Schmid, University of Darmstadt (Germany), Rony Golan, Advocate, Arbitrator & Mediator (Israel), Ruwantissa Abeyratne, Aviation Strategies International (Canada), Snežana Miladinović Drobnič, University of Montenegro (Montenegro), Stepan Keiler, Sigmund Freud PrivatUniversität Wien (Austria), Sverre McSeveny-Aril, Norwegian Bar Association (Norway),
Tasman Tam, Hong Kong University (China), Xavier Delpech, Jean Moulin University Lyon 3 (France), Editorial Board: Afonso Café, University of Algarve (Portugal), Alejandro Corral Sastre, CEU San Pablo University (Spain), Alessandra Corrado, University of Milano-Bicocca (Italy), Alona Rogale-Homika, Baltic International Academy (Latvia), Andras Salamon, Edutus University Budapest (Hungary), Anne Dolan, University of Limerick (Ireland), Andrew Charlton, Managing Director of Aviation Advocacy (United States), Anthony Cordato, Lawyer (Australia), António Osório, Lawyer (Cape Verde), Armela Maxhelaku, University of Tirana (Albania), Bertold Bär-Bouyssière, Dentons’ Brussels (Belgium), Camille Dang, Lawyer (France), Caterina del Federico, University of Bologna (Italy), Desislava Hineva, Varna University of Economics (Bulgaria), Dominik Wolski, Katowice School of Economics (Poland), Dov Kolani, IFTTA President Emeritus and Founder (Israel), Duilio Cortassa, Lawyer (Italy), Emmanuelle Hober Zaffran, Aix-Marseille University (France), Evanthia Kardoulia, European Consumer Centre (Greece), Guillaume Beurdeley, Deputy Secretary General of Les Entreprises du Voyage (France), Jean Pierre Kesteloot, Counsel at Liedekerke (Belgium), Joaquín López Vallés, Spanish National Markets and Competition Commission (Spain), Karmen Lutman, University of Ljubljana (Slovenia), Karolina Pruchniewicz, Nicolaus Copernicus University (Poland), Manuel David Masseno, Beja Polytechnic (Portugal), Marie Vandersanden, Attorney at law (Germany) Nataliia Godis, Mid-Sweden University (Sweden), Paola De Pascalis, University of Bari (Italy), Peter Vos, ANVR (Netherlands), Phil Cameron, University of Paris 1 Panthéon-Sorbonne (USA), Polyxeni Moira, University of West Attica (Greece), Rosaria Garozzo, Italian Competition Authority (Italy), Rui Aurelio de Lacerda Badaro, SBDI (Brazil),
Sergio Castel Gayán, Department of Tourism of the Government of Aragon (Spain) Yana Yakushina, University of Ghent (Russia), Xhon Skënderi, University of Tirana (Albania), Zoltán Bartucz, Hungarian State Aid Monitoring Office (Hungary) Ibero Americam Chapter Ibero American Editorial Board Adriana Romero, University of Buenos Aires (Argentina), Alex Sanchez, Instituto Hondureño de Turismo (Honduras), Allan Kuster, Lawyer (Aruba), Anggie Flies Añon, University of Magellan (Chile), Arturo Aliaga-Grez, Lawyer (Chile), Carlos Armas Morales, Universidad Nacional Mayor de San Marcos (Peru), Carlos Mario Molina Betancur, Member of the Colombian Jurisprudence Academy (Colombia), Carmen Martinez Arnaud, CONFOTUR (Dominican Republic), Dénis Ivan Lanuza, National Autonomous University of Nicaragua at León (Nicaragua), Earlston Mcphee, Director – Sustainable Tourism Planning at Bahamas Ministry of Tourism (Bahamas), Edgardo Lovera Riquelme, Duoc UC (Chile), Elizabeth Villalta, Ambassador (El Salvador), Elvi Marina Ortega Sáez, University of Havana (Panama), Enrique Mota Flores, Unicaribe (Mexico), Esteban Szmulewicz, Catholic University of the North (Chile), Eugenio del Busto, National University of Quilmes (Argentina), Eugenio Hernández-Bretón, Baker & McKenzie, S.C. (Venezuela), Fabio Londoño Gutiérrez, Instituto Colombiano de Derecho Tributario y Aduanero (Colombia), Federico Dangelo Martínez, University of Belgrano (Argentina) Freddy Andrés Hung Gil, University of Havana (Cuba), Freddy Sánchez Merino, Simón Bolívar University (Venezuela), Gabriela Roca, Corporate Affairs and Sustainability Director at Corporación AG (Guatemala), Gonzalo Casanova Ferro, University of Buenos Aires (Argentina), Graciela Güidi, University of Buenos Aires (Argentina), Gustavo Néstor Fernández, National University of Rosario (Argentina) Hector Morales, Lawyer (Guatemala), Hermes Navarro, Costa Rican Tourism Board (Costa Rica),
Iván La Riva Vegazzo, National University of Trujillo (Peru), Ivan Lopez Villalba, Fenacaptur (Ecuador), Jens Thraenhart, Vice Chair UNWTO Affiliate Members (Barbados), Joandre Ferraz, Lawyer (Brasil), Juan José Alvarez Sardiñas, Director Counsel, Ministry of Tourism (Cuba), Karina M. Barreiro, Observatorio de Derecho del Turismo UBA (Argentina), Lenin José Andara Suárez, University of the Andes (Venezuela), Magaly Arze López, Lawyer, Bolivia, Marcelo Oliveira, ABAV (Brazil), Maria Luisa Garzaro, Guatemala Tourist Board (Guatemala), Marina Ortega, University of Havana (Panama), Mario Martínez Sandoval, Benjamín Valdez & Asociados Law Firm (El Salvador), Mateo Estrella, University of Cuenca (Ecuador), Nicolás Cobo Romaní, Pontifical Catholic University of Chile (Chile), Roberto Ruiz Díaz Labrano, National University of Asuncion (Paraguay), Robin Montano, Lawyer (Trinidad & Tobago), Romina Santroni, Lawyer (Dominican Republic), Sandra Salinas Baldivieso, Inter-American Network of Environmental Law Specialists (Bolivia), Sandra Sofía Arcos Valcárcel, University of Buenos Aires (Argentina), Santiago Aramburu, University of Buenos Aires (Argentina), Sebastián Moreno Fleming, Saint Thomas Aquinas University of the North (Argentina), Sheila Sánchez Bergara, University of Lleida (Cuba), T. Jennifer Edwards, Tourism Organisational & Strategic Development Specialist (Bahamas), Tatiana Siercke, Instituto Hondureño de Turismo (Honduras), Weldon Black Zaldivar, Unidroit scholar (Paraguay)
IJTTHL 1 | 2024 CONTENTS Themes Consumer profiling in air transport and tourism, Chiara Tincani, 15 Proposed Revision of the European Package Travel Directive: Plié or Relevé in the EU Legislative Ballet?, Karmen Lutman, 33 Air passenger rights before, during, and after COVID-19 – where to next?, Masha Korošec, 49 Law 190 of 13 December 2023 on Tourist Guides, Sara d’Urso, 71 Sustainability and Tourism: the roles of the World Tourism Organization and the World Code of Ethics for Tourism, Amina Welten Guerra and Rui Aurélio de Lacerda Badaró, 93 Tourism and climate change in island countries, Mohamed Kayal, 111 Greenwashing in aviation: sustainability challenges faced by misleading business practices, Guillermo Budi Hycka and Silvia Frade Sosa, 141 The Alaska Airlines Incident: Boeing 737-9, Silvia Frade Sosa and Diego Olmedo de Cáceres, 147 Law No. 2023-1289, of December 28, 2023, relating on the predictability of the organization of air navigation services in the event of a social movement and the adequacy between the scale of the strike and traffic reduction, “Christophe Lachièze”, 153 The fraud-friendly phenomenon: Ryanair gets its final judgement, but it’s not over yet! Sandrine Johnson, 155 Case Law Court of Justice of the European Union, First Chamber, 19 October 2023, Case C-660/2020, Mr MK versus Lufthansa Cityline GmbH, Enrico Gragnoli, 157
Court of Justice of the European Union, case No. c-299/22 M.D. v UAB Tez Tour, Edmundas Rusinas, 163 Case C-76/23 - Reimbursement in travel vouchers: The provision “required signed | written agreement” of the passenger was obtained by filling out an online form on the operator's website, Carlos Torres, 179 Court of Justice of the European Union, case C-723/22: the broadcast of an episode on television in rooms and other areas of a hotel constitutes a communication to the public, Carlos Torres, 185 Air passenger compensation for flight delay: can the lack of airport staff constitute an “extraordinary circumstance”?, Emmanuelle Hober Zaffran, 189 Air passenger rights: Can a technical failure be considered as an extraordinary circumstance exempting the air carrier from its obligation to compensate passengers under Regulation (EC) No 261/2004?, Emmanuelle Hober Zaffran, 197 Expert Evidence in the courts of England and Wales: Griffiths v TUI [2023] 3 WLR 1204, Sarah Prager, 205 Package Travel Directive - many issues addressed by the English courts all in one case: in the wake of Sherman v Reader Offers Ltd, Stephen Mason, 211 Iberoamerican Chapter El ecoturismo: un modelo de turismo alienado con los Objetivos de Desarrollo Sostenible, Francisca Ramón Fernández, 221 Chile y el vino, comentarios sobre su derecho, Edgardo M. Lovera Riquelme, 267 Enoturismo en México: su regulación jurídica, Oscar Cruz Barney, 281
Consumer profiling in air transport and tourism Chiara Tincani1 1. Italian models for regulating the use of algorithms in scheduled air transport. 2. The first interventions of the Competition and Market Authority. 3. Tariffs in air transport, agreements restricting competition and the so - called profiling. 4. The regulations on the processing of personal data, air fares and profiling. 5. Profiling in the hotel sector. In 2022 and in the first six months of 2023, not only in the air transport, strong tensions were reported, with significant increases in transport prices and marked fluctuations, with no comprehensible reasons. Although the exact determination of the causes for such behaviour on the part of the airlines has remained unsubstantiated, there is a widespread belief that it depended on the systematic use of highly sophisticated mathematical tools for calculating the charge, with algorithms. The Italian legislator declared his conviction that he had to correct imbalances originated by the epidemic situation and increased by the use of algorithms.The Law No. 136 of 2023, which converted the Decree - Law No. 104 of 2023, refers all initiatives to the Italian Competition and Market Authority, which "ascertains that the algorithmic coordination of 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". Therefore, on the one hand, the rule has a general object and concerns the entire national territory and, on the other hand, it dwells on “algorithmic coordination”. Thus, there has been a shift from an intervention on the use of algorithms as an intrinsic factor of potential risk to a view of their significance for the preservation of the competitive structure of the market. The issue suggests a broader reflection; we can think of the hotel sector where the use of pricing procedures based on user profiling is imagined, especially with regard to the resourses of the customer. The point is to assess whether these pricing mechanisms are unfair commercial practices, with possible recourse to the safeguards provided in Italy by the Consumer Code. Keywords: Air fares - Use of algorithms - The Italian models – The EU regulations – Profiling in the aviation sector – Profiling in the hotel sector. DOI 10.60559/ijtthl2024-007 1 University of Verona.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW 1. ITALIAN MODELS FOR REGULATING THE USE OF ALGORITHMS IN SCHEDULED AIR TRANSPORT In 2022 and in the first half of 2023, strong tensions arose in the air transport market, with significant price increases and marked fluctuations, with no comprehensible reasons. Although the exact determination of the reasons for such behaviour on the part of the airlines has remained unsubstantiated, there is a widespread belief that they were caused by the systematic use of highly sophisticated mathematical tools for calculating the charge, with algorithms2. Well - known in the economic literature3, the subject had no reflection on the legal debate, at least in Italy, until August 2023, whereas there have been analyses in other areas, for instance in labour relations4. To tell the truth, as has been objected to in some public speeches by airline executives, the legislator was moved by suspicion, but not by the demonstration of the distorting influence of these models on the calculation of fares and, above all, by the unproven conviction that automated intervention could establish in advance the economic capacity and willingness to spend of the traveller, thus conditioning the selection of the requested compensation to his detriment. On the legal side, the first question posed by algorithms is their knowability5, as pointed out in the Italian debate6, since, it has been said, "it 2 See: L. M. Lopucki, Algorithmic entities, in Washington University law review, 2018, 887 ff. 3 V.: K. Koelker - K. Lutjens, Using genetic algorithms to solve large - scale airline network planning problems, in Transp. Research procedia, 2015, 900 ff.; J. Betancourt - A. Hortacsu - A. Oery - K. Willliams, Dynamic price competition: theory and evidence from airline markets, in Nber working papers, 2022, no. 30347, 5 ff.; A. Karbassi Yazdi - M. Amin Kaviani - T. - Hanne - A. Ramos, A binary differential evolution algorithm for airline revenue management: a case study, in Soft computing, 2020, 24, 5 ff. 4 See: J. Prassl, Humans a service. The promise and the perils of work in the gig economy, Oxford University press, Oxford, 2017, 65 ff.; A. Rosenblat, Uberland: how algorithms are rewriting the rules of work, Los Angeles, 2018, 37 ff.; C. Salazar, Rights and algorithms: the gig economy and the “Foodora case”, between judges and legislators, in Liber amicorum per Pasquale Costanzo, 2019, 179 ff. 5 See: J. Gorelli Hernandez, Algoritmos y transparencia: pueden mentir los numeros? Los derechos de informaciòn, in Trabajo y derecho, 2002, 1 ff. (from the abstract); A. Höchling - M. C. Wehener - Lyth, Discriminated by an algorithm: a systematic review of discrimination and fairness by algorithmic decision making in the context of human resources recruitment and human resources development, in Bus. res., 2020, 13, 795 ff. 6 See: E. Gragnoli, The employment relationship, automatic decisions and their limits. The regulation of non - understandable phenomena, report to the International Conference in Logrono Ethicomp
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.
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.
CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM understood as an intrinsic factor of potential disorder to a limitation of their use for the preservation of the competitive structure of the market17. The subject of territorial continuity appears incidentally18, since the Authority may consider the fact that illegitimate conduct is "practised on national routes connecting with the islands", "during a period of peak demand linked to seasonality or in conjunction with a state of emergency", and leads "to a sale price of the ticket or ancillary services, in the last week prior to the flight, that is more than two hundred per cent higher than the average fare of the flight". These factors are always relevant in relation to restrictive agreements of competition or forms of abuse of a dominant position. For journeys inherent to the so - called territorial continuity19 (with confirmation of the original approach of August 2023), the "use of automated tariff determination procedures based on web profiling of the user or on the type of electronic devices used for bookings"20 is prohibited, in the event of economic prejudice. However, the criterion is also applied “to other domestic connections (...), in the presence of a state of emergency (...) or if road or rail travel (...) is, in whole or in part, prevented by exceptional events declared by public authorities”21. Therefore, forms of profiling are prohibited22, seen as a factor distorting fair competition, albeit within the framework of an initiative of the Authority. 2. THE FIRST INTERVENTIONS OF THE COMPETITION AND MARKET AUTHORITY In its interventions to promote competition and repress unfair practices, the Authority must assess "the structure of the market (...), the methods of price setting, also through the use of revenue management systems and 17 In particular, on the objective relevance of the abuse of a dominant position, regardless of the author's convictions, see C. Osti, Abuso di posizione dominante, loc. cit., 25 ff. 18 See Article 1(2) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 19 That is, on connections to the islands and during a period of peak demand related to seasonality or in conjunction with a state of national emergency. 20 See Article 1(3) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 21 See Article 1(4) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 22 See: M. Nisevic, Profiling consumers through big data analytics: strengths and weaknesses of Article 22 GDPR, in Global privacy law review, 2020, 1, 107 ff.; see also P. De Hert - H. Lammerant, Predictive profiling and its legal limits: effectiveness gone forever?, in Exploring the boundaries of big data, 2016, 32, 145 ff.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW algorithms (...), the risks for the competitive process and for consumers deriving from the use of algorithms based on artificial intelligence or on user profiling"23. Regardless of the objective difficulty of reaching a reasoned conviction on these aspects, the current version of Article 1 of Decree - Law No. 104 of 2023 proposes an administrative function of ensuring the effectiveness of its principles. Hence, these measures have a declared procedural slant, with a planned initiative of the Authority, intended to promote an orderly flow of flights to the islands and, more generally, competition on all domestic routes. In this perspective, the so - called profiling and the automated analysis of the “type of electronic devices used for bookings” are important24. In 2023, the Authority launched a fact - finding investigation aimed at verifying the spread of algorithms in the so - called revenue management systems used by airlines. In fact, carriers are increasingly making use of so - called “pricing algorithms” for the automated definition and dynamic adaptation of fares25. The progressive digitalisation of negotiation processes has increased the availability and variety of data that can be processed and, as a consequence, has improved the so - called revenue management systems, which are now able to guarantee a greater differentiation of fees according to the characteristics of demand or their rapid adaptation in response to other variables, such as production costs or the choices of competing companies. In fact, "the use of artificial intelligence and machine learning techniques could allow the definition of algorithms capable of elaborating new criteria of inference between data, according to a process of self - learning and, therefore, a management of pricing decisions (...), also based on the detection of the corresponding strategies of competitors and on a (...) systematic profiling of consumers"26. The fact - finding survey was prompted by the concern that, on routes to and from Sardinia or Sicily, particular requirements linked to the seasonal nature of demand and a reduced availability of alternative solutions could have a significant impact on the determination of fees; the Authority intends to assess the possible distortion of competitive dynamics. In particular, it 23 See Article 1(5) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 24 See Article 1(3) of Decree - Law No. 104 of 2023, as amended by Conversion Law No. 136 of 2023 and, therefore, in the text in force today. 25 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. 26 See Order No. 30874 of 2023, published in the Competition and Market Authority Bulletin No. 44 of 20 November 2023.
CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM pays attention to the way in which fees and their individual components are disclosed, given their impact on the overall transparency of prices and their comparability; in fact, travellers must be aware of the changes that have determined the fees27. At least in this respect, the survey is very ambitious, because it presupposes that companies disclose their calculation mechanisms. Moreover, albeit in the different sphere of labour law28, the articulation of such systems has been highlighted and it has been emphasized that, with machine learning, “the possibility of obtaining a possible ex post explanation of the decision requires recourse to reverse engineering methods that have significant costs and, above all, grow as the complexity of the algorithm increases. The result obtained from these analyses would be (...) comprehensible, in most cases, only by an expert subject", and "a subsequent intervention would then be necessary to facilitate comprehension by a non - expert subject, such as (...) the employer himself"29. Recently, the Authority was asked about the existence of a restrictive agreement with regard to the economic conditions demanded by some so - called low cost companies on routes at the ends of which were, on the one hand, Palermo or Catania and, on the other, Rome, Milan, Turin or Bologna30. In particular, with reference to some carriers, the substantial increase in fees that occurred over the Christmas period of 2022 was allegedly due to a collusive intent. The Authority observed how companies define their proposals on the basis of decisions of a statistical nature and how well they calculate fares in relation to available seats depends on the balancing of interests, i. e. the maximum increase in average revenue and the need to fill the aircraft. 27 Cf. C. Romeo, L'era degli algoritmi e la sua incidenza nell'ambito della certezza del diritto: un connubio sospetto, in Lav. giur., 2024, 6 ff., according to which “the algorithm cannot replace (...) the human mind, in the perception that algorithmic use in the choices to be profiled must ensure efficiency and speed, but also impartiality of the choices reserved to the operator, capable at any time of intervening with the necessary spaces of discretion”; P. De Hert - H. Lammerant, Predictive profiling and its legal limits: effectiveness gone forever?, loc. cit., 145 ff. 28 Cf. M. Peruzzi, Artificial Intelligence and Work. Uno studio su poteri datoriali e tecniche di tutela, Turin, 2023, 13 ff.; S. Watcher - B. Mittelstadt - C. Russell, Counterfactual explanations without opening the black box: automated decisions and GDPR, in Harv. journal law tech., 2018, 841 ff.; G. Gaudio, Algorithmic management, employers' powers and burden of proof: in search of the material truth behind the algorithm, in Lab. law issues, 2020, 27 ff. 29 Cf. G. Gaudio, Le discriminazioni algoritmiche, loc. cit., 6 ff. 30 See Order No. 31014 of 2024, published in the Competition and Market Authority Bulletin No. 1 of 2 January 2024.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW Thus, during the reported period, although there had been high price peaks on some of the indicated routes, the offers would have varied due to adjustments made on account of bookings. Therefore, the Authority did not find any violation of the competition promotion regulation and, in particular, the existence of restrictive agreements. Moreover, the Authority itself emphasized that "the observed market outcome" may have stemmed from "motives other than the alleged collusion"31; other factors may have contributed, including the frequent use of automated systems. The Authority has stated that it is unable to assess whether their use has a distorting effect, due to the lack of precise knowledge of the phenomenon. This outcome is relevant and calls into question the importance of the recent Italian provisions; the public administration's efforts have not led to conclusive results and, on the contrary, have highlighted how the subject does not lend itself to objective analysis at reasonable cost. 3. TARIFFS IN AIR TRANSPORT, RESTRICTIVE AGREEMENTS AND SO-CALLED PROFILING According to Article 1 of Decree - Law No. 104 of 2023, the Authority must intervene if “the algorithmic coordination of the tariffs charged” could lead to an agreement restricting competition or “the price level set through a revenue management system constitutes an abuse of a dominant position”. Thus, the distorting effects should depend on the use of automated mechanisms preordained to favour collusive conduct or abuse. The rule assumes that the systems are knowable and, in essence, the Authority should scrutinise their operation so that it can assess the data entered and their governance. Therein lies the weakness of the arrangement; in fact, the decision - making process of algorithms is complex, particularly in the case of machine learning. It is a dynamic system, in which instructions are recalibrated over time in an automated manner, and it is based on a probabilistic method, since the result is not predictable, as it derives from links between variables that do not correspond to relations of a causal nature; therefore, from a technical point of view, the decision can only be clarified and explained ex post, with reverse engineering models, at high costs that increase as the algorithm becomes more and more articulated and, in any case, with settings 31 See Order No. 31014 of 2024.
CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM that can only be deciphered by an expert32. Therefore, the Authority is not very well able to know how the systems work, nor to assess whether the determination of prices is the expression of a calculation functional to altering the ordinary dynamics of the market. In essence, it is no longer possible to establish whether the distorting effect results in an agreement restricting competition or in the abusive exercise of a dominant position, because the investigation stops beforehand, i. e. when faced with the lack of a full and certain analysis of the decision - making process; if the operation of the algorithm cannot be guessed at, it cannot be demonstrated that it was constructed for illegitimate purposes. Furthermore, algorithms may create errors, which could spoil the final evaluation, despite the fact that the relevant variables are apparently neutral; in particular, they "could use" an element "other than a discriminating factor"33, but, insofar as it is "statistically correlated with the latter", produce then “a similar discriminating effect, at the price, however, of being more difficult to perceive even by those who programme and supervise the operation"34. These difficulties in application raise a more general question, namely whether objective and more drastic regulatory techniques could not guarantee better protection. Article 1 of Decree - Law No. 104 of 2023 in the wording prior to its conversion into law had its grounds, since it prohibited the dynamic fixing of tariffs if this resulted in a price two hundred per cent higher than the average price of the flight; there was a limit anchored to an economic criterion, free from discretionary evaluations, based on a simple finding. What is different is the case of profiling, which, for instance, provides personalised advertising or leads to different commercial offers depending on the nature of the person or the category in which he or she is included; 32 Cf. P. Zellini, La dittatura del calcolo, Milan, 2018, 16 ff.; C. Accotto, Il mondo dato. Five short lessons in digital philosophy, Milan, 2017, 64 ff.; C. O'Neill, Weapons of mathematical destruction. How big data increases inequality and threatens democracy, Florence, 2017, 34 ff.; V. Mayer - Schönberger - K. Cukier, Big data. A revolution that will transform the way we live and already threatens our freedom, Milan, 2013, 52 ff. 33 Cf. M. V. Ballestrero, Ancora sui raiders. La cecità discriminatoria della piattaforma, in Labor, 19 January 2021; M. Barbera, Discriminazioni algoritmiche e forme di discriminazioni, in Lab. law issues, 2021, 1, 20 ff.; A. Perulli, La discriminazione algoritmica: brevi note introduttive a margine dell'ordinanza del Tribunale di Bologna, in Lav. dir. Europa, 2021, 1 ss.; M. Borzaga, Qualche riflessione a partire dai primi orientamenti della giurisprudenza di merito in tema di discriminazioni algoritmiche, in Ianus - dir. fin., 2021, 24, 151 ss. 34 See G. Gaudio, Le discriminazioni algoritmiche, loc. cit., 6 ff.; A. Lo Faro, Algorithmic decision making and management of labour relations: cosa abbiamo imparato dalle piattaforme, in Federalismi.it, 5 October 2022, 195 ss.; S. Renzi, Decisioni automatizzate e analisi predittive e tutela della privacy dei lavoratori, in Lav. dir., 2022, 593 ss.
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
CONSUMER PROFILING IN AIR TRANSPORT AND TOURISM potential for the choices that consumers must be able to make free from deceptive conditioning”38. In particular, the ability “to distort ordinary choices with regard to the main characteristics of the product, as well as its price, the omission of relevant information or its unclear or non - exhaustive presentation” are relevant39. In essence, it is enough to alter “economic behaviour”40 . Although the consumer Code distinguishes between misleading practices41 and so - called aggressive practices42, mostly in the transport sector the former are relevant, as can be deduced from Article 22 bis of the Code43; with regard to maritime fees, advertising on the price that does not highlight port taxes, ancillary charges or all those that are in any case significant is considered misleading, since the carrier must disclose a single fee that includes any fixed item. The intention is to ensure transparency so that the traveller is not induced to negotiate for a fee that, a posteriori, turns out to be higher44. It is unfair to propose conditions that are only advantageous in appearance, but in substance misleadingly reduced, since nozione di 'professionista' nel commercio elettronico, in Giur. it., 2019, 1813 ff.; D. Melano Bosco, Il superamento della teoria del c. d. professionista di rimbalzo, ibid., 2021, 836 ff. 38 Cf. Cons. Stato, sec. VI, 6 September 2017, no. 4245, in Giur. it. rep., 2017, according to which “the legal asset protected is only indirectly the consumer's patrimonial sphere; in an immediate way, the aim is to safeguard the proper functioning of the competitive market”. See also TAR Lazio, Rome, sect. I, 9 September 2014, no. 9559, ibid., 2014; TAR Lazio, Rome, sec. I, 4 July 2013, ibid., 2013. 39 See Cons. Stato, sec. VI, 4 March 2013, no. 1259, in Giur. it. rep., 2013. 40 See Cons. Stato, sec. IV, 6 September 2017, no. 4245, cit. 41 See Articles 21 and 22 of Legislative Decree No. 206 of 2005, as amended by Legislative Decree No. 170 of 2021 (the so - called Consumer Code). 42 See Articles 24 and 25 of Legislative Decree No. 206 of 2005, as amended by Legislative Decree No. 170 of 2021 (the so - called Consumer Code). 43 Pursuant to Article 22 bis of Legislative Decree No 206 of 2005, as amended by Legislative Decree No 170 of 2021 (the so - called Consumer Code): “advertising shall be considered misleading if it concerns fares charged by shipping companies operating on Italian territory directly or in code - sharing, and advertises the price of the ticket due to the shipping company separately from ancillary charges, port taxes and all charges in any event intended to burden the consumer, since the shipping company must advertise a single price that includes all these items”. 44 Cf. M. Previti, Le pratiche commerciali scorrette nel trasporto aereo: la tutela del passeggero – consumatore, loc. cit., 700, according to whom such a provision would be superfluous, since such a result could have been reached with the application of articles 20, 21 and 22 of legislative decree no. 206 of 2005, as amended by legislative decree no. 170 of 2021 (the so - called Consumer Code). the conduct of shipping companies. Again according to the author, the "rationale for the introduction of Article 22 bis is (...) to be found (...) in the perceived need to equate the protection of maritime passengers with that of air passengers".
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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