Elizabeth Mireya Freidenberg February 15 2017 Overview of recent aviation regulations and commercial aviation matters Freidenberg Freidenberg & Lifsic | Aviation - Argentina Elizabeth Mireya Freidenberg Aviation Consumer rightsAdditional regulations Filing claimsConsumer rightsThe Constitution, as amended in 1994, establishes consumer rights when using services and acquiring goods or receiving them for free. Law 24,240 was issued to regulate these constitutional rights.Article 63 of Law 24,240 establishes that:the Aeronautical Code and applicable international conventions apply to the contract of air transportation; andthe law is applicable to this type of contract only on a supplementary basis.In practice, Law 24,240 applies only to claims stemming from the provision of insufficient or misleading information to passengers, consignors or consignees regarding the conditions of an air transportation contract.Law 24,240 was modified by Congress through Law 26,361, which deleted Article 63.The government recently vetoed this decision through Executive Decree 565/2008 for the following reasons:The aviation industry is governed by specific legislation, while consumer law is generic.Provinces decide and approve most of the conditions applicable to the contracting of airline transportation (eg, frequency, fares and schedules).Resolution 1532/98 establishes the conditions of carriage of transportation contracts.EU Regulation 261/2004 complements the Montreal Convention 1999 regarding the liability of carriers in the compliance of schedules.The principles of aviation law (eg, the exclusivity of conventions, uniformity and internationality) are accepted by courts in most parts of the world (eg, El Al Israel Airlines vs Tseng decided by the US Supreme Court in 1999 and Sidhu vs British Airways decided by the British House of Lords in 1977, which established the exclusivity of the Warsaw System).Additional regulationsANAC Resolution 445/16 refers to the ancillary services that airlines must provide to passengers in case of delay or cancellation of a flight and modifies the previous Disposition 73/97 (for further information please see "New Civil Aviation Authority regulation").Resolution 113/16 was issued on December 29 2016 by the Regulatory Body of the National System of Airports (ORSNA), a federal agency that controls and regulates the performance of the national airport system. It revokes ORSNA Resolution 79/10, which established a priority system for operators. Aeropuertos Argentina 2000 informed ORSNA that Jorge Newbery Airport had increased its number of operators to nine, a number which looks set to rise again. As such, Resolution 113/16 adopts the internationally recognised system of equal treatment between operators and does not give priority to any carrier, which was not previously the case.The Ministry of Transport Resolution 485 (issued on November 11 2016) called for a public hearing to consider the petition by five operators requesting domestic and international traffic rights. The call was made in accordance with the Aeronautical Code (Law 17,285) and the requirements to obtain permits under Decree-Law 2186/92.The call for a public hearing marked a change of ANAC policy, as no public hearing had been held during the previous decade. Consequently, the market had been monopolised by a number of carriers and Argentina's air transport system had been limited by its lack of increased capacity and expensive fares.Resolution 485 also resulted in a public hearing procedure. The ANAC board, presided over by the ANAC president, heard the arguments of each company and the interested parties formulated their support for or opposition to each of the petitioners.The board's decision has yet to be issued.Filing claimsLaw 26,993 (System of Conflict Resolution in Consumer Relations) was issued on September 19 2014. It established a conflict resolution system for consumer relationships in Buenos Aires City.Argentine provinces and municipalities follow their own administrative procedures and a number of provinces and municipalities have offices that inform and accept claims from passengers domiciled in that area. Coprec (a consumer relations body based in Buenos Aires) also accepts claims from residents throughout Argentina.In practice, the procedure created by Law 26,993 became operative only in 2015. As a result, Coprec and municipal offices were inundated with passenger claims against airlines in 2016.The Coprec system operates as follows:A claimant files his or her claim with Coprec online, explaining the facts of the claim and providing the required documentary evidence.Coprec evaluates the claim and decides whether it will investigate.If the claim is approved, Coprec appoints a Buenos Aires-based mediator and the claimant decides the time and date of the first hearing, which is officially notified to the defendants by the mediator.Under Law 26,993, the mediator must advise the claimant during the process and is paid his or her fee by the defendant if an agreement is reached.Law 24,240, as amended, is applicable due to Article 63 therein, which establishes that the Argentine Aeronautical Code and the applicable international conventions apply to claims based on air transport contracts. (Neither Coprec nor the municipal offices has decided which law applies to claims filed under Law 26,993.)If the defendant airline does not take part in the hearing, a fine of approximately $500 is imposed. The claimant receives 20% of the fine. If this amount does not cover the consumer's claim, an administrative process is started with another administrative agency (Consumer Audit). Depending on the amount claimed, the claimant may eventually start a judicial process.Law 26,993 establishes a complex administrative appeals procedure. Due to the fact that Coprec's claims process is relatively new, there are contradictory interpretations regarding the implementation of the law and procedure.Buenos Aires has its own Citizen Participation Centre, which accepts passenger claims in each city district that has an appointed mediator; no fees are applicable. The Civil Aviation Authority (ANAC) also accepts claims by passengers, in which case the start of a summary proceeding is notified to the airline. In general, airlines file their argument within 10 working days and try to negotiate a settlement. ANAC has no administrative authority to penalise airlines.In sum, passengers have many options to file claims and defendants (ie, airlines) have seen their legal expenses rise as a result of claims in different parts of Argentina.For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email ([email protected]).