Collective Commentary about the New Package Travel Directive

ARTICLE 12 | FRANCESCO TORCHIA 283 2. COMPETITIVENESS AND UNFAIR COMMERCIAL PRACTICES While discussing the aforementioned elements, we can arrive at the conclusion that the aim of the unfair competition framework is the protection of a legal asset that is not only the clientele, the start-up or the company (patrimonial theory) or even just the “entity”, understood as a subjective right (personalistic theory), but mainly the effectiveness of the competitive game. This requirement for an unlawful act is the competition between two or more entrepreneurs, which can be obtained within the subject of unfair competitiveness (Article 2598 of the Civil Code). A situation that only occurs in the presence of two characteristics: the entrepreneur title and customers, even potential ones, must be a common element of the subjects involved. Firstly, we can add to the aspects which can be considered as “competitors” in all those businesses whose products and/or services (regardless of the production or trade phases) are addressed to a category of subjects driven by the same market need. Secondly, being in competition means that it is necessary to have the presence of two (or more) economic operators that execute their potentially common activity in temporal and territorial means. In other words, operators that show real prospects of outlet in other markets and/or real possibilities of expansion of their sphere of activity, including products or services of others, despite operating in diverse markets. As a consequence, businesses do not necessarily need to operate on the same economic level (same activity area), seeing as it is enough that their activity influences a common clientele. In the Italian law scenario there are numerous regulations concerning commercial practices which, when described and sanctioned as unfair, have an impact not only on market protection and / or the interest of “truthful” entrepreneurs but also on the interest (of the tourist) for a correct contractual fulfilment. As an example, some regulations on digital identity and transportation have been reported. It is particularly useful in terms of digital identity (for the purposes of this work) to recall a recent ruling (June 2018) of the Court of Lecce – Criminal Section whereby the Judge reported the writing of false reviews as an illegal activity. This “unique” case (one of the first of its kind) also emerged thanks to the support of the travel community TripAdvisor, in which the owner of an agency was selling entire packages of fake reviews to business owners operating in the hospitality industry in order to improve its profile on TripAdvisor. During the investigation, TripAdvisor sent a report to the structures and downgraded