Aeronautical Infractions: Registry of Administrative Proceedings, Sanctions and Recidivism

On January 4, 2017, Resolution No. 1196/2016 (herein, the “Resolution”) of the National Administration of Civil Aviation (“ANAC” after its acronym in Spanish) was published. It ordered the creation of an IT system for registration of administrative proceedings and sanctions imposed in relation to aeronautical commercial and operational infractions set out in Decrees No. 326/1982 and 2352/1983.

The faculties and the responsibility with regard to the data registered in such records were assigned to the Executive Departments of the ANAC, according to whether the infractions are regulated by:

1. Decree No. 326/1982 on control of air commercial transport activities, remaining the registry of commercial violations in charge of the Aeronautical Infringements Department (“DIA” after its acronym in Spanish), dependent on the National Department of Air Transport (“DNTA” after its acronym in Spanish), and
2. Decree No. 2352/1983, which regulates the regime of aeronautical violations, being the primary responsible parties for registering operational offences: the National Department of Operational Safety (“DNSO” after its acronym in Spanish), the National Department of Air Navigation Inspection (“DNINA” after its acronym in Spanish) and the General Department of infrastructure and Airport Services (“DGIySA” after its acronym in Spanish), according to their respective powers.

In addition, the Resolution sets forth that the registry of recidivism is under the authority of the DIA, which comprises both the offences established in Decree No. 326/1982, like those in Decree No. 2352/1983, and the sanctions that become firm (i.e. not subject to appeal because the term allowed for the appeal has expired) as from the January 1, 2017 must be registered.

According to article 214 of the Aeronautical Code those who, within the last four years prior to the date of the violation, have been sanctioned by another breach, must be considered recidivists. In accordance with this standard, offence records will remain registered for four calendar years, counting as from the date when the respective sanction has become firm in the administrative field.

Sanctions that are not firm must not be registered for the purposes of the registration of recidivism. In order to exempt the judicially questioned records, the Legal Affairs Department, dependent on the Legal, Technical and Administrative General Department of the ANAC, must inform the DIA of the files where an appeal has been lodged before the Federal Justice in Contentious Administrative Matters, in accordance with article 215 of the Aeronautical Code, and on the firm judgments held in the same.

The DIA will issue the certificates on aeronautical infractions records that will be taken into account for the graduation of sanctions, as well as upon request of those who evidence legitimate interest. The DNTA is empowered to enact rules that will make the issuance of such certificates viable, as well as operational and/or regulatory standards relating to the implementation and execution of the system of recidivism.