Introduction

Two Argentine consumer associations (Consumidores Libres Coop LTDA de Provision de Servicios de Accion Comunitaria and Union de Usuarios y Consumidores) recently filed a collective action against the majority of airlines operating in Argentina in defence of passenger rights.

Resolution 101 of the Regulatory Body of the National Airport System (ORSNA) – dated November 25 2016 – reduced airport fees from $57 in 2016 to $49 from January 1 2017. The claimants alleged that the carriers should reimburse the difference between the airport fee paid by passengers in 2016 when their tickets were issued for flights in 2017 and the new airport fee.

Complaint

In their complaint, the consumer associations presented no power of attorney or instruction from the passengers that they claimed to represent or even a list of the individual passengers concerned. The complainants claimed their rights and the defence of the passengers as consumers, based on Consumer Defence Law 24240.

The complainants first called for a mediation hearing, but no airline agreed to settle the case as far as is known.

Arguably, the complainants should have filed the complaint against:

  • ORSNA, which had reduced the airport fees; or
  • Aeropuertos Argentina 2000, which runs Argentina's 33 airports and charges airport fees for the maintenance and provision of airport services to passengers.

Instead, the complainants made claims only against the airlines in question, arguing that they charge airport fees in the name of the airport when tickets are issued directly or via an agent, with the aim of delivering airport fees when passengers fly.

To date, only one non-Argentine airline has been served the complaint, which was filed with the Federal Civil and Commercial Court.

This airline presented the following defence and evidence:

  • The relationship between the airline and its passengers was not a consumer relationship. Rather it was a contractual relationship and, as a result, the Consumer Defence Law was not applicable.
  • As a consumer relationship did not exist, the consumer associations had no legitimacy to act in defence of the passengers that they claimed to represent.
  • The plaintiffs had not identified the passengers that they claimed to represent and had not determined the amounts claimed. Therefore the complaint was legally invalid under Article 330 of the Federal Procedure Code. Under Article 330, complaints must be filed in written form and contain:
    • the plaintiff's name and address;
    • the defendant's name and address.
    • the exact object of the action;
    • the facts of the complaint, explained clearly;
    • the applicable law; and
    • the petition.

Complaints must also include the amount claimed, unless this cannot be calculated precisely. The amount claimed is provisional and the complaint must be filed to avoid an action's proscription.

Resolution 706-E/2017

Surprisingly, on the day of the deadline to respond to the complaint, the Argentine National Civil Aviation Administration (ANAC) issued Resolution 706-E/2017 (which was published in the Official Gazette on September 22 2017 and came into effect on September 25 2017).

The resolution established that airlines should inform the ANAC of the procedures that they will follow to reimburse passengers who make a personal complaint based on the fact that the airport fees that they paid when they purchased their tickets in 2016 had been reduced when they travelled in 2017.

As a result, the abovementioned airline answered the complaint and requested that the court case before the Federal Civil and Commercial Court be considered null and void.

Nonetheless, it is virtually impossible for airlines to comply with Resolution 706-E/2017, as it is difficult to inform all of the passengers who are eligible for reimbursement because the airlines in question do not have the passengers' contact information.

Further, under the Civil and Commercial Code (Law 26,994), Argentine citizens should be notified of any new regulations issued once they have been published in the Official Gazette.

At this time, there is uncertainty regarding the future fulfilment of Resolution 706-E/2017.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Elizabeth Mireya Freidenberg at Freidenberg Freidenberg & Lifsic by telephone (+54 11 4311 4991) or email (emf@emfrl.com.ar).