On 23 December 2019 a 30% tax on services hired abroad by travel agencies located in Argentina was introduced. The fact that the new tax applied the day after its introduction created chaos for air companies as non-compliance can trigger fines with interest. The Argentine Tax Authority recently introduced a resolution to address the lack of clarity surrounding the collection of the new tax, but it will take time for carriers to implement the measures required to comply with the new regulations.
The Immigration Authority (DNM) repeatedly imposes substantial fines on carriers. Despite the fact that in many cases these fines have been wrongly imposed, airlines must pay any outstanding fines in order to file a judicial complaint against the DNM, so the fines are widely viewed as another cost of operating in Argentina. That said, a number of airlines have recently challenged the DNM's fines and the courts have given a clear sign that, even with the above difficulties, it is worth challenging this legal loophole.
In a recent Federal Civil and Commercial Court 2 case, the plaintiffs filed a complaint for damages for a rescheduled flight after a mandatory mediation hearing ended without a settlement. However, the court found that the change of flight schedule had complied with civil aviation and consumer rules. As a result, it rejected the claim and imposed legal costs on the losing party.
It is not unusual for immigration authorities to pursue airlines for infringements of the passenger documentation requirements which travellers must meet in order to enter a country. Argentina is no exception and the Immigration Authority (DNM) has been incentivised to detect passenger documentation infringements and collect fines from air carriers. However, a number of recent decisions regarding the DNM's imposition of fines in such cases could mark a turning point with regard to this issue.
The Federal Court recently heard a case in which two passengers claimed damages from Aeromexico after they had been ordered to disembark an aircraft for being disruptive. The case provides an insight into the question of whether consumer protection law trumps flight security concerns.
The Civil and Commercial Court of Appeals recently overturned a first-instance decision concerning a laptop lost on an Aeromexico flight from New York to Buenos Aires. The first-instance court had ordered Aeromexico to pay damages, but the appeal court found that the model of the lost laptop had never been sold in Argentina and that the plaintiff had neither proved that her laptop had been packed in her luggage nor made her claim in a timely manner.
A federal court recently dismissed a lawsuit against El Al Israel Airlines which had been filed by an Argentine passenger based on a lack of jurisdiction as set out by Article 33 of the Montreal Convention. The court examined the different hypothesis described by Article 33 and found that the claimant had failed to file a lawsuit against El Al before the courts where it was domiciled or had its principal place of business, where the contract had been made or before the courts of the claimant's planned destination.
Carriers' commitment to travel at certain times implies a duty of extreme diligence to respect the terms of their offer and such commitment is essential to those who use their services. A first-instance court recently declared that Qatar Airways breached its transport contract and the obligations to its passengers following the delay and cancellation of one of its flights from Sao Paulo to Buenos Aires.
In the context of deregulating the aviation sector and attracting low-cost carriers, the Ministry of Transportation recently issued Resolution 656/2018, which allows domestic carriers to charge any fare that they wish under certain circumstances. Before this resolution, domestic carriers could charge no lower than the Civil Aviation Authority threshold.
A recent National Commercial Court decision has set a favourable precedent for the aviation industry in Argentina. The court ordered the application of international conventions rather than local law and federal jurisdiction instead of commercial national jurisdiction. This application of international conventions by the Argentine courts is important, as it establishes the limited liability that is generally overlooked by domestic legislation.
A passenger filed a claim against Iberia Lineas Aereas de Espana SA for a breach of contract after her non-stop flight to Europe was modified due to overbooking. The claimant argued that the defendant had fraudulently failed to fulfil its obligations. The Civil and Commercial Court of Appeals rejected the punitive damages awarded by the first-instance court, but increased and maintained compensation for moral and material damages, respectively.
Under Resolution 706-E/2017, airlines must inform the Argentine National Civil Administration (ANAC) of how they will reimburse the discrepancy in airport fees paid by passengers who bought tickets in 2016 and travelled on or after January 1 2017, when a fee reduction was introduced. Most of the affected airlines have now proposed ways to comply with the resolution, which should avoid summary proceedings by ANAC for non-compliance.
Two Argentine consumer associations recently filed a collective action against the majority of airlines operating in Argentina in defence of passenger rights. 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, which was reduced from January 1 2017.
Following the issuance of Resolution 445/16 by the Civil Aviation Authority (ANAC), the National Directorate of Air Transport was tasked with establishing a system to evaluate airlines' compliance with their flight schedules. The aim is to increase air transportation efficiency for passengers and provide the ANAC with additional tools to evaluate the performance of scheduled carriers.
A number of aviation regulations were issued in Argentina in 2016, including an executive decree to protect claims arising due to the provision of insufficient or misleading information to passengers, consignors or consignees regarding the conditions of an air transportation contract. Further, 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 crew of a commercial airline invited a VIP passenger into the cockpit for the duration of a scheduled flight. The first-instance court decided that the crew and passenger should be charged under Article 190 of the Criminal Code, as their behaviour had violated safety regulations and posed a threat to the security of the aircraft, passengers and cargo and third parties on the ground, even though no harm had been caused.
The Civil Aviation Authority (ANAC) recently issued a regulation modifying and deleting previous dispositions. Resolution 445/06 states that non-compliance with ANAC-approved schedules for scheduled carriers will be subject to fines only if the carrier delays a flight without providing the required ancillary services to passengers. If the carrier has no other option than to delay a flight, no fines will be imposed so long as the carrier complies with its obligations to passengers.
The First Chamber of the Civil and Commercial Court of Appeals' ruling against two passengers who claimed to have missed their flight because of overbooking sets a good precedent, as this is a common defence for passengers in Argentina who arrive late to the airport. The court ruled that in accordance with Ministry of Economy, Public Works and Services Resolution 1532/98, the carrier had had the right to apply its no-show policy to the passengers.
New Law 27,196 has made the early detection, diagnosis and treatment of coeliac disease and access to gluten-free food a matter of national interest. The law sets out the institutions, including airlines, which must offer at least one gluten-free item. It is unclear whether the law applies to domestic carriers only, but it appears that if a passenger requests a gluten-free meal when making a booking, it must be supplied if the flight departs from Argentina.
The Civil Aviation Authority recently published a provision which amends the procedures and requirements for the approval of special or non-scheduled flights. Approval is conditional on the carrier filing the reasons for the extraordinary petition, along with supporting information and registration, airworthiness, operator and insurance certificates.