Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Consumer protection and liability
Are airfares regulated in your jurisdiction?
According to Law 11.182/2005, air fares are not regulated.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
In case of flight delays, air carriers will promptly notify the passengers about the delay and the expected time of departure, using the communication means available. Air carriers will update passengers about the estimated departure time every 30 minutes. Written information about the delay must be provided if requested by passengers.
If the flight is delayed for more than four hours, or if the flight is cancelled or a passenger is unable to board a connecting flight because of the delay, air carriers must offer the following alternatives:
- boarding another flight;
- reimbursement of the fare effectively paid, including taxes and airport fees; or
- completion of the transport through other transport modes.
Passenger transfers in flight delay and cancellation scenarios are free and have priority over carriage of passengers who acquired tickets for the same flight at a later time. Re-accommodation is offered to passengers, who may choose one of either a seat in the first available flight of the air carrier or a flight operated by a third party to the same destination; or a seat in a flight of the air carrier at a date and time chosen by the passenger.
Passengers with special needs have priority when seats on other flights are being allocated. If an air carrier can anticipate a delay of more than four hours, it must promptly inform the flight’s passengers about these alternatives.
In case of flight delays and cancellations, material assistance must be offered as follows:
- Exceeding one hour: access to means of communication.
- Exceeding two hours: a meal compatible with the time of day, or a meal voucher.
- Exceeding four hours: hotel accommodation if there is an overnight wait and ground transfers when necessary, provided that passengers do not reside in the city of departure (in which case the air carrier is not required to offer accommodation, only ground transfers). Accommodation must be offered to passengers with special needs and their companions regardless of the overnight waiting period.
Material assistance must be provided until the moment the passenger chooses to be placed on another flight at a date and time of their choosing, at their own discretion or if they opt for reimbursement.
(b) Oversold flights?
An oversold or overbooked flight will have consequences for the air carrier if this action results in denied boarding. In this scenario the rules identified under the denied boarding section below will apply.
(c) Denied boarding?
Air carriers must compensate passengers who accept seats on other flights in order to avoid denied boarding. Further, in case of denied boarding, air carriers must offer the same alternatives applicable to flight delays of more than four hours.
Where passengers do not voluntarily accept compensation, in addition to offering alternatives and the obligation to provide material assistance, air carriers must immediately pay an indemnification to the passenger whose boarding was denied in the amount corresponding to 250 special drawing rights (SDR) for domestic flights and 500 SDR for international flights. This payment is made through bank transfer, in cash or in the form of a voucher.
(d) Access for disabled passengers?
Directive 280 was issued by the Civil Aviation Agency (ANAC) in 2013 with the purpose of regulating the service of passengers with special needs. According to this directive, passengers with special needs include:
- persons aged 60 and above;
- pregnant and lactating women;
- persons accompanied by an infant;
- persons with reduced mobility; or
- anyone for whom a specific condition limits their autonomy as a passenger.
(e) Lost, damaged or destroyed luggage?
In case of baggage loss, passengers will immediately formalise a claim addressed to the air carrier. Air carriers will return the baggage within seven days for domestic flights and 21 days for international flights. On expiration of such terms, air carriers must indemnify passengers for the loss.
Further, in baggage loss situations, the air carrier must reimburse the expenses of passengers who are outside of their city of residency. Reimbursement must be carried out within seven days as of the date on which the receipts are presented to the air carrier. The contract of carriage regulates the daily limits for reimbursement and applicable payment methods.
If the baggage is not found:
- the amounts previously paid as reimbursement of expenses can be offset with the amount of indemnification owed to the passenger; and
- the air carrier must reimburse the passenger for additional amounts paid for the transport of the baggage.
Air carriers may offer credits or vouchers as compensation, which can be accepted at the passenger’s discretion.
Where baggage has been damaged or mishandled, passengers must file a complaint within seven days. In the following seven days the air carrier must do one of the following:
- pay a compensation;
- replace the damaged item with one that is identical; or
- repair the damage (if possible).
Damage to fragile items may not be indemnified by the air carrier, depending on what is established in the contract of carriage.
(f) Retention and protection of passenger data?
In 2012 ANAC published Directive 255 in order to prevent and suppress acts of unlawful interference and facilitate clearance before the immigration, customs, sanitary and agricultural authorities. Under this directive, air carriers must collect information on passengers and crew and forward this information to the relevant authorities in advance to the departure of the flight.
A personal data protection law was recently approved by the Brazilian Congress, which was enacted as Federal Law 13.709/18 and will become effective on 15 February 2020.
What rules and liabilities apply to the air carriage of cargo?
Brazil is a signatory to the Convention for the Unification of Certain Rules for International Carriage by Air 1999 (the Montreal Convention), which was enacted internally in 2006 under Decree 5.910. The country is also a signatory of the following:
- the Warsaw Convention 1929;
- the Hague Convention 1955;
- the Guadalajara Convention 1961;
- the Guatemala Protocol 1971; and
- the Montreal Protocols 1–4 1975.
The Aeronautical Code (Law 7.565/86) regulates liability on air transport in domestic flights. In brief, this legislation has provisions that are similar to those established in the relevant international conventions, especially regarding limitation of liability. The Aeronautical Code sets out that in case of baggage loss and flight delays, airlines’ liability will be limited to an amount corresponding to 150 national treasury bonds, which corresponds to R1,755. In case of passenger death or injury, the Aeronautical Code sets out that airlines’ liability will be limited to 3,500 national treasury bonds, which corresponds to R40,950 (these calculations are based on ANAC Directive 37/2008).
Brazilian courts are inclined to deny enforceability to certain provisions of the Montreal Convention, especially those that deal with liability caps and the time bar for filing suits against carriers.
Precisely because there has been a great debate on whether the conventions apply, the Supreme Court accepted a baggage case in which Air France had been sued by a passenger. The lower court’s judgment denied compensation according to the limits of the Warsaw Convention (at the time the relevant facts took place, the Montreal Convention was not effective in Brazil) and awarded a higher compensation based on the Consumer Protection Code. Likewise, the Supreme Court accepted a suit filed by a passenger against Air Canada. The company defended the claim on the grounds of the statute of limitations having expired (since the suit has been filed more than two years after the relevant flight). In both cases the Supreme Court rendered a final judgment with binding effects on all lower courts of the country upholding the international treaty.
Although this decision has been rendered on passenger claims, not cargo, it is possible to conclude that its principles will also apply to liability regarding transportation of cargo. The Superior Court of Justice has interpreted that the Supreme Court precedent applies to cargo cases as well, but certain judges of the Sao Paulo Court of Appels have been denying enforceability of the convention under the interpretation that it applies only to baggage situations, where there is an antinomy between the convention and the Brazilian Consumer Protection Act, and that cargo should be regulated by the Civil Code instead of the Consumer Protection Act.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
No. All kinds of advertising and marketing in Brazil are regulated by Federal Law 4.680/65, Decree 57.690/66 and the Brazilian Advertising Self-Regulation Code. The latter was issued by the National Council of Advertising Self-Regulation.
Do any special rules apply to consumer complaints handling in the aviation industry?
A recent Supreme Court judgment will directly affect how consumer complaints are handled. As a result of the decision, the Montreal Convention will be used by courts more often instead of the Consumer Protection Code, which is adopted in most cases. This modification will directly affect how complaints are handled, mainly considering the indemnity limitations and the statute of limitation rules established by the conventions.
Click here to view the full article.