Judgment;Summary — ECLI:EU:C:2020:301
Date: 2020-04-23
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-28/19 — 1 
Case C-28/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
16 January 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
18 December 2018 
Appellants:  
Ryanair Ltd 
Autorità Garante della Concorrenza e del Mercato ‒ Antitrust 
Respondents:  
Autorità Garante della Concorrenza e del Mercato ‒ Antitrust 
Ryanair Ltd 
Ryanair DAC 
  
Subject matter of the main proceedings 
An appeal against the judgment of the Tribunale amministrativo regionale del 
Lazio (Regional Administrative Court, Lazio, Italy, ‘the Regional Court’) 
upholding the decision of the Autorità garante della concorrenza e del mercato 
(the Italian competition authority, ‘the Competition Authority’) finding the 
company Ryanair guilty of five separate unfair commercial practices and 
imposing penalties on it accordingly, and an appeal by the Competition Authority 
against certain aspects of that judgment. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING ‒ CASE C-28/19 
 
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Subject matter and legal basis of the request for a preliminary ruling 
The request for a preliminary ruling, made pursuant to Article 267 TFEU, 
concerns the correct interpretation and application of Article 23 of Regulation 
No 1008/2008. 
Questions referred 
Is the second sentence of Article 23(1) of Regulation (EC) No 1008/2008 of the 
European Parliament and of the Council of 24 September 2008 on common rules 
for the operation of air services in the Community to be interpreted as meaning 
that an online check-in fee and an ‘administration fee’ for credit card purchases, 
which are additional to the price of the ticket, and the VAT applied to air fares and 
to optional supplements for national flights, fall within the category of 
unavoidable, foreseeable or optional price supplements?  
Is the fourth sentence of Article 23(1) of Regulation No 1008/2008 to be 
interpreted in the sense that the word ‘optional’ covers price supplements which 
the majority of consumers are able to avoid? 
Provisions of EU law relied on 
Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 
24 September 2008 on common rules for the operation of air services in the 
Community, Article 23(1). 
Provisions of national law relied on 
Decreto legislativo 6 settembre 2005, n. 206 ‒ Codice del consumo (Legislative 
Decree No 206 of 6 September 2005 approving the Consumer Code, ‘the 
Consumer Code’), in particular, Articles 18, 20(2), 21(1)(b), (c) and (d) and (4a), 
22 and 27. 
Outline of the facts and the main proceedings 
1 By decision of 15 June 2011, the Competition Authority found the airline Ryanair 
had engaged in a number of unlawful commercial practices relating to the sale of 
certain ancillary services that are governed by the specific rules of EU law to 
which the appellants refer. 
2 The complaint against Ryanair concerns the following matters in particular: 
(a) the potentially misleading nature of certain advertisements published on the 
Internet and/or in the press ‒ in particular, announcements advertising a 
large number of seats available at very low cost during a specific period of 
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time — which might have misled consumers as a result of serious omissions 
concerning the actual conditions and restrictions applicable to the offers 
advertised; the practice in question appears to be unfair, pursuant to 
Articles 20(2), 21(b), (c) and (d) and 22 of the Consumer Code, in that it is 
contrary to professional diligence and likely materially to distort the 
economic behaviour of the average consumer in relation to the actual 
availability of flights at the fares advertised and the real scope and value for 
money of the offers advertised by the company; 
(b) the incorrect presentation of the prices applied by the reservation system on 
the airline’s website (http://www.ryanair.com/it), inasmuch as the company 
presented certain cost components (online check-in and the administration 
fee) as ‘optional charges’, even though they are in fact mandatory, that is to 
say, they are normally charged to the consumer in the course of the online 
reservation process and are added to the basic fare initially proposed; the air 
fare which Ryanair advertises is thus lower than the price which consumers 
actually pay, and this indicates a lack of transparency in the calculation 
method; the practice in question appears to be unfair, pursuant to 
Articles 20(2) and 21(1)(d) of the Consumer Code, in that it is contrary to 
professional diligence and likely materially to distort the economic 
behaviour of the average consumer in connection with the actual cost of the 
service provided by the company; in the initial stages of booking a flight, 
online purchasers are not in fact aware of the online check-in fee or the 
‘administration fee’ applicable to credit card purchases, which are additional 
to the price of the ticket, and also receive little information about the 
application of VAT to air fares and to the optional price supplements for 
national flights; 
(c) the supply by the company of inadequate information on the procedure to be 
followed in order to exercise certain rights (relating, specifically, to the use 
of bonuses and the obtaining of refunds) and the obligation for consumers to 
use a premium rate telephone line (an 899 number) in order to exercise those 
rights, and the insufficient provision of information on alternative 
procedures for obtaining a reimbursement and on the administration fee 
charged by Ryanair for claims processing; the practice in question appears to 
be unfair, pursuant to Articles 20(2), 22, 24 and 25(d) of the Consumer 
Code, in that it is contrary to professional diligence and likely, because of 
the lack of information, to mislead the average consumer in so far as 
concerns the scope of such rights and the procedure to be followed in order 
to exercise those rights and also likely, because of the imposition of 
additional burdens in obtaining the full or partial reimbursement of unused 
tickets, unduly to hinder the effective exercise of such rights; 
(d) the use of the English language in communications with Italian consumers 
sent or requested by the company and to explain on the company’s website 
the terms and conditions of travel; the practice in question appears to be 
unfair, pursuant to Articles 20(2) and 22 of the Consumer Code, in that it is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING ‒ CASE C-28/19 
 
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contrary to professional diligence and likely materially to distort the 
economic behaviour of the average consumer in connection with the 
conditions governing the contractual relationship with the company; 
(e) the charging of a higher price than indicated on the company’s website for 
changing booking details (dates, times, routes, etc.); the practice in question 
appears to be unfair, pursuant to Articles 20, 21(1)(b) and (d), 22, 24 and 
25(a) of the Consumer Code, in that it is contrary to professional diligence 
and likely materially to distort and unduly to alter the economic behaviour of 
the average consumer, given the additional costs charged when elements of 
the transport service purchased are changed or boarding cards are reissued. 
3 The expression ‘unfair commercial practices’ applied to Ryanair’s conduct 
designates conduct covered by the general prohibition laid down in Article 20 of 
the Consumer Code. ‘Commercial practices’ means any conduct on the part of a 
business that objectively ‘relates’ to the ‘promotion, sale or supply’ to consumers 
of goods or services and which is adopted prior to, contemporaneously with, or 
even after the formation of the contractual relationship. As regards the criteria for 
determining whether or not a given commercial practice is unfair, Article 20(2) of 
the Commercial Code provides, in general terms, that a commercial practice is 
unfair if ‘it is contrary to professional diligence’ and ‘it materially distorts or is 
likely materially to distort the economic behaviour, with regard to the product, of 
the average consumer whom it reaches or to whom it is addressed or of the 
average member of the group, when a commercial practice is directed to a 
particular group of consumers’. 
4 The Italian legislature has also identified a series of particular types of commercial 
practice that are to be regarded as definitely misleading and aggressive, without it 
being necessary to establish that they are contrary to ‘professional diligence’ or 
that they are actually apt ‘to distort the economic behaviour of the consumer’. 
According to Italian legislation, whether or not a commercial practice is 
misleading depends on whether it is ‘truthful’, that is to say, whether it contains 
false information or information which, in principle, will mislead or might 
mislead the average consumer, in particular, in so far as concerns the nature or 
principal characteristics of goods or services and which is thus likely to induce the 
consumer to take a commercial decision which he would not have taken in the 
absence of the practice in question. Where those cumulative criteria are met, the 
practice will be regarded as unfair and thus as one that must be prohibited. 
5 An act of omission, in order to be regarded as misleading, must relate to ‘material 
information that the average consumer needs’ in order to take an informed 
decision (Article 22 of the Consumer Code). In this connection, it is important to 
point out that, in every case in which the commercial practice takes the form of an 
‘invitation to purchase’, an expression which includes commercial 
communications, information relating to the ‘principal characteristics of the 
goods’ is always to be regarded as material information (Article 22(4) of the 
Commercial Code). If such information is lacking, an invitation to purchase will 
RYANAIR 
 
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thus be regarded as misleading (see the judgment of 12 May 2011, Ving Sverige, 
C-122/10, EU:C:2011:299, paragraph 24). 
6 For those reasons, the Competition Authority took the view that the case did 
involve unfair and misleading commercial practices and it thus prohibited their 
continuance. Given the severity and duration of the infringements, it imposed the 
following fines, pursuant to Article 27(9) of the Consumer Code: 
– EUR 110 000 in respect of the infringement described in paragraph 2(a) 
above; 
– EUR 220 000 in respect of the infringement described in paragraph 2(b) 
above; 
– EUR 90 000 in respect of the infringement described in paragraph 2(c) 
above; 
– EUR 27 500 in respect of the infringement described in paragraph 2(d) 
above; 
– EUR 55 000 in respect of the infringement described in paragraph 2(e) 
above. 
7 Ryanair brought an action against the Competition Authority’s decision, seeking 
its annulment. 
8 By judgment of 12 April 2012, the Regional Court dismissed Ryanair’s claims 
and upheld in full the Competition Authority’s findings in so far as concerned the 
infringements described in paragraph 2(a), (b) and (d) and the relevant fines. It 
partly upheld Ryanair’s action in so far as concerned the practices described in 
paragraph 2(c) and (e). 
9 By a first appeal, the airline challenged that judgment before the referring court, to 
the extent that the Regional Court had dismissed its action. It also requested that a 
request for a preliminary ruling of the Court of Justice be made concerning the 
interpretation of the word ‘optional’, used in Article 23 of Regulation 
No 1008/2008. 
10 By a second appeal, the Competition Authority challenged the same judgment 
before the referring court, to the extent that the Regional Court upheld Ryanair’s 
action in so far as concerned the unfair practices described in paragraph 2(c) and 
(e). Ryanair brought a cross appeal against the parts of the Regional Court’s 
judgment which dismissed its action and upheld the decision of the Competition 
Authority.  
11 The referring court joined the abovementioned appeal cases, since they both 
challenged the same judgment. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING ‒ CASE C-28/19 
 
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The principal arguments of the parties in the main proceedings 
12 In so far as concerns the cost components at issue, that is to say, the online check-
in fee and the ‘administration fee’ for credit card purchases, which are additional 
to the price of the ticket, and the VAT applied to air fares and to optional 
supplements for national flights, the Regional Court concluded that those items 
were unavoidable, inasmuch as they related to a mandatory service (online check-
in) and to a tax (VAT). As regards the fee that is charged when a credit card other 
than a specified credit card (a pre-paid Mastercard) is used, the Regional Court 
interpreted Article 23 of Regulation No 1008/2008 not as a rule designed to 
encourage the public to obtain in advance the most cost-effective payment method 
at any particular time, but as a rule designed to ensure the complete price 
transparency of plane tickets from the moment a customer decides to commence a 
transaction. It therefore took the view that the question of whether the charge was 
unavoidable must be considered not in the abstract, but objectively, that is to say, 
by reference to whether there was a reasonable possibility of an average consumer 
commencing a specific commercial transaction being able to avoid that charge. On 
that basis, the Regional Court held that that the fee for purchasing tickets online 
without a specific credit card was unavoidable. 
13 On that last point, Ryanair argued that the supplement was in fact avoidable, both 
in the abstract and objectively. To support that claim it produced empirical 
evidence showing that approximately a third of all reservations made on its Italian 
website had been made using the particular type of card specified. 
Succinct presentation of the reasons for the request for a preliminary ruling 
14 The referring court states that, as a general rule, where a question is raised in the 
context of a case that is pending before a court or tribunal against whose decisions 
there is no judicial remedy under national law, that court or tribunal is required to 
bring a request for a preliminary ruling before the Court of Justice (see the third 
paragraph of Article 267 TFEU) unless there is already well-established case-law 
on the point or the correct interpretation of the rule of law in question admits of no 
reasonable doubt. 
15 The referring court, taking into account the protective aims of the provisions 
under consideration and the general guidance that may be gleaned from the 
Court’s previous case-law, proposes a broad interpretation of Article 23 of 
Regulation No 1008/2008, in line with that on which the Competition Authority’s 
decision is based and that adopted in the judgment at first instance and now under 
appeal. 
16 However, given that Ryanair has suggested a different interpretation, there are 
grounds for making the reference for a preliminary ruling, as requested, since that 
interpretation is not patently unfounded. 
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17 The referring court therefore considers that it must bring a request for a 
preliminary ruling before the Court of Justice in this case. 
18 According to the referring court, the final price to be paid must, in the context of a 
computerised booking system, be indicated when the prices of air services are 
displayed for the first time. 
19 With reference to the wording of the third sentence of Article 23(1) of Regulation 
No 1008/2008, the Court of Justice has already pointed out (see the judgment of 
6 July 2017, Case C-290/16) that the obligation to specify at least the air fare, as 
well as, separately, the taxes, airport charges and other charges, surcharges or 
fees, where these items have been added to the air fare, is in addition to the 
obligation under the second sentence of Article 23(1) to indicate the final price 
(see also the judgment of 15 January 2015, Air Berlin, C-573/13, paragraph 44). 
Accordingly, an air carrier which merely referred to the final price would not 
satisfy the requirements of the third sentence of Article 23(1) of the regulation, 
since they impose an obligation to indicate the amounts of the various items which 
make up that price. 
20 According to the Court’s case-law, the various items which make up the final 
price to be paid, referred to in the third sentence of Article 23(1) of Regulation 
No 1008/2008, must always be brought to the customer’s attention in terms of the 
amounts that they represent in that final price. That interpretation is borne out by 
the objectives pursued by the regulation. 
21 Indeed, Article 23(1) of Regulation No 1008/2008 is intended to ensure, in 
particular, that there is information and transparency with regard to prices for air 
services from airports located in a Member State and thereby contributes to 
safeguarding the protection of customers who use those services. In that respect, it 
lays down information and transparency obligations as regards, in particular, the 
conditions applicable to air fares, the final price to be paid, the air fare and the 
unavoidable and foreseeable items that are added to the fare, and the optional 
price supplements relating to services that supplement the air service itself (see the 
judgment of 18 September 2014, Vueling Airlines, C-487/12, EU:C:2014:2232, 
paragraph 32). The Court has also had occasion to clarify (see the judgment of 
19 July 2012, Case C-112/11) that the concept of ‘optional price supplements’, 
referred to in the last sentence of Article 23(1), must be interpreted as meaning 
that it covers costs, connected with the air travel, arising from services, such as 
flight cancellation insurance, supplied by a party other than the air carrier and 
charged to the customer by the person selling that travel, together with the air fare, 
as part of a total price. 
22 Thus, the objective of ensuring the provision of adequate information and 
transparency with regard to prices would not be achieved if the [third] sentence of 
Article 23(1) of Regulation No 1008/2008 were to be interpreted as offering air 
carriers a choice between including taxes, airport charges and other charges, 
surcharges and fees in the air fare, or indicating those various items separately. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING ‒ CASE C-28/19 
 
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The provision in question must instead be interpreted as meaning that, when they 
publish their air fares, airlines must indicate separately the amounts that customers 
must pay in taxes and airport charges as well as any other charges, surcharges and 
fees, as referred to Article 23(1) (b), (c) and (d) of the regulation. They cannot, 
therefore, include those price components, or any part of them, in the air fare, as 
referred to in Article 23(1)(a) of the regulation. In short, according to the referring 
court, what follows from that is the principle that, when purchasing a ticket, 
customers must pay a final price, not a provisional price. 
23 In that context, it is of decisive importance in this case to classify, for the purposes 
of the provisions of EU law at issue, the cost components at issue. On the one 
hand, online-check in and VAT are classified by the Competition Authority and in 
the judgment appealed against as non-optional costs. On the other hand, the third 
component, the ‘administration fee’ for credit card purchases, is a surcharge that is 
automatically added to the price whenever a passenger chooses, on completion of 
his booking, a payment method other than the pre-paid credit card specified by the 
airline.