By Luciana Goulart Penteado, Partner and Gustavo Cesar Mazutti, Associate, Demarest Advogados

Overview

Recently, the National Civil Aviation Agency (ANAC), which is responsible for the standardization and enforcement of the rules of the Brazilian air transport sector, issued Resolution No. 400/2016, establishing new rules for the general conditions of regular passenger air transport in the domestic and international spheres. Among the new rules, ANAC introduced a clear modification in relation to the period granted for the passenger to cancel a purchased ticket, which goes against the right of withdrawal that is provided for in the Brazilian Code of Consumer Defense (CDC). Despite the divergences in the opinion of jurists, in case law and even in the Legislative Branch, it is clear that the change introduced by the ANAC appears to be reasonable, in its attempt to strike a balance between the consumer and the supplier in the execution of the air transport contract, as well as to seek alignment with current international practices.

As broadly divulged in the media, Resolution No. 400 of the National Civil Aviation Agency (ANAC) became effective on March 14, 2017, establishing new rules for the general conditions of regular air transportation of passengers in the domestic and international scopes.

Enacted with the purpose of benefiting the Brazilian consumer in the purchase of air tickets, Resolution No. 400 of ANAC introduced a significant change in relation to the period granted to the air transport consumer to cancel a ticket that has been acquired. According to its Article 11, when the consumer purchases an air ticket at least seven (7) days before the date of boarding, the period for withdrawal without any cost is of twenty-four (24) hours, counting from receipt of the proof of purchase.

The provision makes no distinction as to the place where the purchase was made. Thus, at first sight, it concerns a rule that applies indistinctively to the purchase of air ticket, whether it was made over the airline counter or through the Internet.

The controversial aspect is that the purchase through the Internet would, in theory, fall within the scope of Article 49 of the Code of Consumer Defense (CDC), according to which the contracting of supply of a product or service that occurs outside of the commercial establishment is contingent upon the exercise of the right of withdrawal by the consumer within a period of seven (7) days, irrespective of the date of rendering of the service.

The broad and unrestricted application of Article 49 of the CDC to the purchase of air tickets through the Internet finds opposition in the country for a long time on the part of the opinion of jurists and case law, and even in certain sectors of the Legislative Branch that in 2010, particularly due to the changes imposed by the electronic commerce, called upon a commission of jurists to modernize certain aspects of the Code of Consumer Defense.

Among the modernization themes, Bill No. 281/2012 of the Senate proposes a change in the deadline for exercising the right of withdrawal in relation to the air transport contract. The wording proposed by the commission of jurists for the introduction of a new provision in the CDC (Article 49-A) is the following: "Article 49-A. Without prejudice to the right of termination of the air transport contract prior to the beginning of the travel (Article 740, Paragraph Three of the Civil Code), the exercise of the right of withdrawal by the consumer of air tickets may have its deadline changed, due to the peculiarities of the contract, by a well-grounded rule of the regulatory agencies."

In this sense, let us look at the interesting point of view of Judge Maria Henriqueta Lobo, of the Court of Justice of Rio de Janeiro, in the judgment of the Appeal No. 2008.001.33979: "In fact, the right of withdrawal provided for in Article 49 of the Code of Consumer Defense cannot be applied to any and all purchases and sales occurred outside of the commercial establishment. The intention of the legislator, when creating said provision, was of protecting the consumer from aggressive advertising marketing techniques, from non-reflected acquisition, or further, from lack of knowledge as to the product or service to be acquired. In the event of sale of an air ticket by telephone or through the Internet, however, the consumer has access to all of the information related to the service to be contracted, such as the price of the ticket, time of the flight, date, on-board service, connections, etc., in the same way that he/she would have if he/she went personally to the commercial establishment. Thus, there is not a situation of vulnerability of the consumer or imbalance in the consumption relationship so as to justify the application of Article 49 of Law No. 8.078/90, since nothing is different between the acquisition of the air ticket in the commercial establishment and the acquisition outside it."

This is mainly due to the particularities of the air transport contract, in which any cancellation by the consumer with short antecedence in relation to the boarding can generate a disproportionate loss for the air company (for example, the consumer could exercise his right of withdrawal even if the purchase had been made for a flight on the following day).

It is also due to the fact that the purpose of Article 49 of the CDC is of protecting the consumer against the acquisition by impulse or with lack of knowledge of the characteristics of the product, while, in the purchase of the air ticket through the Internet, the consumer has full access to the information that is necessary to make a conscious acquisition, and the purchasing process is in his/her hands, since he/she him/herself is the one that decides when and how the purchase will be made.

In this regard, it is important to note that the authors of the Bill of the Code of Consumer Defense support a casuistic application for Article 49: "The individual case will determine whether it is a sale outside the commercial establishment that is subject to the right of withdrawal or not. If it is common for the parties to execute contracts by telephone, for example, the provision does not apply and there is no right of withdrawal."

It is particularly because of such reasons that the changes introduced by ANAC seems reasonable in the attempt of striking a balance between the consumer and the supplier in the execution of an air transportation contract. There is more: despite the reduction of the period for the exercise of the right of withdrawal for the specific case of purchase on a date near to that of boarding, differently from what one would think at first sight, this change, in a general way, is beneficial for the consumer.

This is so because, in view of the fact that the air transport service is considerably limited and of high cost, at the exact moment when the consumer purchases the ticket, a "seat" on the commercial flight is automatically occupied, making it impossible for other consumers to purchase it. Effectively, if the consumer cancels his/her ticket on a date that is near to that of the flight, there is a major possibility that the airline would be unable to resell the vacancy in such a short period. Moreover, if this should occur, the airline is forced to bear, in principle, the loss or, at least, fails to profit from the situation created by the consumer.

However, at a later moment, the additional costs caused by such cancellation are inevitably passed on to all kinds of consumers by means of the increase of the average price of air tickets in the market.

Thus, one perceives that, if the initial purpose was of assuring more protection for the consumer, the broad and unrestricted application of the right of withdrawal of the air transport contract can be detrimental for the class of consumers as a whole, going directly against the actual purpose of Article 49 of the CDC.

Therefore, the change introduced by ANAC Resolution No. 400 as regards the exercise of the right of withdrawal at a date near to that of boarding appears to be positive for the re-equilibrium of the contractual relationship between the consumer and the supplier and, in addition, it is beneficial for the consumer, which meets with the objectives pursued by ANAC in the enactment of the resolution.

Lastly, it is worth recalling that similar regulations are already applied in developed countries, where the effects felt were positive. In the USA, where each airline is free to establish the rules related to the right of withdrawal, the Transportation Department observed that the change in the rule had the effect of reducing the prices and providing a greater diversity of options in the relationship between the price and the service. Directive No. 83/2011 of the European Union, for example, imposed on the member countries the obligation of adopting in their legislations a rule that considers the right of withdrawal in contracts for air transport service inapplicable, specifically due to the particularities of such contracts.

Therefore, as observed, the new regulation is not only positive to Brazilian consumers and suppliers, but it is also aligned with the current international practices.

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