Executive Approves Regulation of Commercial Air Transport Services

On September 10, 2024, the Executive Branch published Decree 809/2024 in the Official Gazette, introducing changes to the Argentine aeronautical policy and, particularly, regarding commercial air transport of passengers.

Firstly, the Decree approved a new Regulation on Air Transport Services for Passengers and Baggage, and Protection of Passenger’s Rights, thus repealing Resolution 1532/98 of the Ministry of Economy.

Additionally, the Decree approved a document regulating General Conditions for Air Cargo Transport Contracts, as well as a Regulation on Advance Payments that may be due in case of death or injury of passengers who are victims of a commercial civil aviation accident. Regarding the transport of passengers, as it was commented after the enactment of Emergency Decree 70/2023, one of the new rules introduced to the Aeronautical Code provided that the aeronautical authority was responsible for issuing a regulation on the protection of passengers' rights (article 130 bis).

Accordingly, the Commission for the Regulation of the Aeronautical Code considered that the legal relation between passengers and airlines has changed dynamically in recent years, therefore making it necessary to update the applicable regulation  to strengthen standards of passenger protection and, simultaneously, to ensure that air carriers operate in a market of open competition, according to international standards.

The new Regulation introduced the responsibility of the carrier and/or an intermediary  to provide adequate, truthful, accurate, detailed, cost-free information in Spanish about the essential characteristics of the offered services, the conditions of commercialization, and the applicable rules (article 4). 

Certain information, such as the final price of the ticket (including the value of the fare, fees, and taxes), must be provided before the ticket is issued. The Decree also stipulates what information the air transport contract must include.

When tickets are marketed and issued by an intermediary, it is solely the intermediary’s responsibility to comply with the duty to provide the information, and the carrier will not be liable for any errors or omissions the intermediary makes (article 5). As for the liability for breach of contract, it was established that the intermediary will not be responsible for the total or partial breach of the carrier's obligations, as long as the breach is not caused by an act or omission imputable to the intermediary.

Further linked to the right of information, article 8 of the Regulation also establishes that the carrier must make available to the passenger at least one remote channel for complaints and requests regarding the contract. According to article 7, the passenger must provide the carrier with an e-mail address or, alternatively, a telephone number to receive information about the trip. Failure to provide these data or to check the received e-mails will exonerate the carrier for the lack of information.

The Regulation also establishes the irrevocability of carriers’ offers addressed to undetermined potential customers (article 14), which will now bind the issuer during the time in which they are held. An offer issued by intermediaries and/or third parties outside the carrier that do not comply with the carrier's regulations will only be binding for those who issued it.

Regarding the right to acceptance or repentance revocation, the Regulation establishes that in contracts executed remotely, the passenger may exercise their right to revocation within ten calendar days from the execution of the contract (article 19), as long as the fare conditions the passenger chose at the time of contracting allow the refund within the agreed terms. For this purpose, airlines must provide the necessary means to allow passengers to clearly and easily access this option on their websites.

The Regulation lists the incidental services the carries must provide in cases of cancellations, rescheduling, and delays. However, it also establishes that the carrier is exempted from this obligation when the cancellation, delay, or rescheduling of the flight or a connecting flight is the result of weather circumstances, acts of God or force majeure, or when the passenger is informed of the cancellation, delay, or rescheduling at least 15 days before the departure of the original flight (article 44).

This compensatory scheme also extends to the passenger's rights in the event of denied boarding due to overbooking, and even to the voluntary passenger who agrees to give up their seat to other passengers. The latter, according to article 46, will not have the right to file claims against the carrier.

On the other hand, the Regulation establishes that when a passenger does not show up for boarding or does not notify the carrier the no-show, the carrier may charge a fee for the voluntary change of date, should the fare allow it.  
Some specific cases contemplated in the Regulation include passengers requiring special assistance, passengers with special medical conditions, minors and pregnant women (articles 29 to 33). There are also provisions on frequent flyer programs, and on the right to carry and transport pets.

The Regulation reaffirms the federal jurisdiction in aeronautical matters by establishing that the hearing and decision of cases involving air navigation and/or any legal relations arising from air commerce in general is a federal matter (article 13). This is consistent with the Argentine Supreme Court’s precedents of recent years (see here).

Finally, the Decree creates a Conciliation Service for Air Transport Passengers and a National Registry of Air Transport Conciliators to settle passengers’ claims in an agile way. Both will work within the scope of the Secretariat of Transport of the Ministry of Economy. The regulation establishes that the conciliatory process will be carried out electronically and will be voluntary and free of charge for passengers, who will be able to attend the hearings without needing legal representation. Likewise, the procedure will be governed by the principles of celerity, immediacy, informality, and dignified treatment. 

Initially, this new system does not repeal or modify other existing conciliation mechanisms, such as the one created by Law 26993. 
It is important to wait for the Secretariat of Transport regulation, which will define the scope of the conciliation process, as well as the action parameters of the conciliators.

The Decree will become effective as of October 10, 2024.