On September 26 2011 the Federal Court of Appeals on Contentious and Administrative Matters modified the penalty imposed by the National Directorate of Internal Commerce on VRG Linhas Aereas.(1) The court stated that whenever specific aviation legislation governs a fact under review, it will prevail over general or domestic legislation.
On March 1 2012 the directorate imposed a penalty of Ps20,000 (approximately $4,638.22) for the alleged violation of Articles 3(d) and 5 of the Mercosur(2) Technical Coordination Agency Resolution (104/2005) and Article 34 of the Consumer Defence Law.
At the time of imposition of the fine, the directorate stated that VRG Linhas Aereas had failed to provide any reference regarding a consumer's right to revoke a contract when a service or product was acquired via the Internet (as stated in Article 34 of the Consumer Defence Law, based on the Mercosur Regulation 104/2005). Article 34 states that whenever a service or product is contracted via either door-to-door selling (ie, a sale or sale offer made to a consumer outside of the seller's commercial office) or mail order (including telecommunications and electronic communication such as by email or online), the consumer has the right to withdraw from that contract within 10 days of signing it or receiving the product, whichever is later. The seller remains responsible for any returning costs. The article also states the obligation to inform the consumer in a proper manner about this right.
VRG stated in its defence that, according to the principle of specialty and according to the Argentine legislation (eg, the Ministry of Economy Public Works and Services Resolution 1532/98, Article 2 of the Aeronautical Code and Article 63 of the Consumer Defence Law), Article 34 of the Consumer Defence Law should not apply to aviation's contractual relationships.
The court held that even though there is a consumer relationship between passengers and airlines, Article 63 of the Consumer Defence Law contains an exception to the law's principle, which provides that "whenever there is doubt regarding this law, the most beneficial result for the consumer shall be applied". Article 63 also states the imperative application of the specific aeronautical law whenever existent.
The court recalled that a modification of the Consumer Defence Law had been elaborated, which contained a revocation of Article 63. This revocation was vetoed by the executive power through Executive Decree 565/2008, which stated that:
- consumer protection laws are created as amendments to adhesion contracts in areas where the state does not provide specific control via specific instruments (this is not the case for the aviation field);
- countries worldwide also apply specific regulations to aviation;
- aviation principles of autonomy, integrity, uniformity and internationality are still being applied by supreme courts worldwide; and
- revocation of Article 63 would create a discrepancy between international treaties and Argentinian constitutional and domestic law.
The court therefore decided that the withdrawal right detailed in Article 34 of the Consumer Defence Law does not apply to aviation contractual relationships.
For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991), fax (+54 11 4311 0852) or email ([email protected]).
(1) Case 13237/10, VRG Linhas Aereas, C/ DNCI-DISP 123/10 (EXPTE S01 478032/06), Camara Nacional de Apelaciones en lo Contencioso Administrativo Federal, SALA I.
(2) 'Mercosur' refers to the common market between Argentina, Brazil, Paraguay and Uruguay.