Thought leadership from our experts

Recent decisions of the Italian Antitrust Authority about the airlines passengers baggage dimension: a loophole to be cared in the applicable rules?

The dimensions of passengers hand baggage allowed on board of commercial flights is not ruled by any national, European, international laws, regulations, treaties or conventions. The recent ECJ judgment in Case C-487/12 (Vueling Airlines v. Instituto Galego de Consumo de la Xunta de Galicia) has stated that the carriage of hand baggage cannot be made subject to a price supplement, provided that it meets reasonable requirements in terms of its weight and dimensions and complies with applicable security requirements.

On 31 October 2018 the Italian Antitrust Authority (AGCM) has ordered the Irish carrier Ryanair and the Hungarian carrier Wizz Air to suspend the implementation of their new hand baggage policy providing the payment of a surcharge to bring on board what they qualified a "standard" trolley (i.e. up 55x40x23 cm).

According to the above new luggage policy, only a "small" hand baggage (i.e. up to 40x30x20 cm), to be stored under the passenger seat, is allowed on board for free, while for larger hand baggage an extra-fee between Euro 5 and 25 (depending on the various booking options, such as priority boarding, fidelity programs etc.) has to be paid.

The AGCM has held that the mentioned new policy causes a misleading representation of the actual price of airfares, because the operators exclude a predictable and non-avoidable charge from the final price of the air transport service, namely the cost for bringing on board a trolley of standard dimensions that – according to the AGCM – must instead be included in the so called 'basic fare'. This practice, according the AGCM, affect the decision-making of average consumers since they cannot figure out the real price offered to the public, nor make a comparison with fares proposed by other carriers on the same routes. Following this line of reasoning the AGCM has found a breach of Article 20, 21 and 22 of the Italian Consumers Code (regarding unfair commercial actions and omissions against consumers) and has resolved to suspend the new hand baggage policy of Ryanair and Wizzair. On such basis the foreign carriers have also been ordered to refrain from any increase of costs for the "large" hand baggage transport and to make available to all passengers a suitable space for the storage of the same either on board or in the cargo hold.

Both airlines have decided to challenge the AGCM decision before the Italian Administrative Court (TAR), asking for its precautionary suspension and then revocation on the merits. The arguments submitted by the claimants to support their position are basically the same and can be summarized as follows:

  • the possibility for each passenger to bring on board a standard trolley is often prevented by limited space availability in the cabin of aircraft used for short and medium-haul routes (indeed both airlines fly EU connections only), thus consequently causing at least half of the passengers' hand baggage to be stored in the cargo hold at the time of the embarking procedures. On the contrary, under the new hand baggage policy, each passenger is allowed to carry on board a small

luggage for free, plus a bag or personal belonging (such as a laptop case), and a surcharge is requested only to bring a second trolley of larger dimensions;

  • the new hand baggage is compliant with article 23 of Regulation (EC) 1008/2008 in terms of information and non-discrimination to the public, because it gives a clear indication of the final prices applied by the carriers and so it does not exist any "prior separation from the fare of a predictable and non-avoidable charge", as otherwise deemed by the AGCM. Indeed, passengers are informed with full transparency about the new policy since the first approach on the airlines' website, before the start of the online booking process. The new policy is also carefully described under the general conditions of transport for passengers and baggage of the airlines;
  • the suspension of the new hand baggage policy for all flights departing from Italian airports to International destinations (booked on the airlines' Italian website) would have an immediate and direct impact on thousands of flights operated by the carriers every week. As a consequence, passengers would be exposed to a serious inconsistency and different treatment between various regimes, depending on the country of departure and the nationality of the website used to book the ticket.

With separate decisions on 22 Nov. 2018 (Ryanair) and 6 Dec. 2018 (Wizzair), TAR upheld the challenge of both airlines and, accordingly, suspended the AGCM precautionary orders by way of provisional measures.

On 21 February 2019 the AGCM closed the administrative procedures imposing pecuniary fines to both airlines for unfair commercial practices (in the amount of Euro 3 million to Ryanair and Euro 1 million to Wizz Air) and confirming the order to interrupt the application of the subject policies. The decision has been suspended yet another time by the TAR, upon challenge from both airlines.

The decisions of the Italian Antitrust Authority have evidenced the lack of harmonized rules on the dimensions of the hand baggage. Indeed, the relevant policy is left to the commercial decisions of the airlines which are driven by many factors, such as the capacity of the aircraft operated, which vary from flights to flights, airlines to airlines. To the extent that such policies are transparent and allow the passengers to travel safely and with a reasonable hand baggage (i.e. a baggage which is consistent with the passenger needs on board and with the aircraft dimensions), no loophole exists at legislation level and accordingly there is no need for the competent authorities to address the foregoing policies.