Government announces emergency aid package for the aviation industry

Due to the coronavirus pandemic, the Federal Government announced an emergency aid package to relieve the aviation and airport industries, two of the most affected in the midst of the crisis.

Provisional Presidential Order (PO) No. 925, published on March 18, 2020:

• Longer deadline to reimburse unused airline tickets

Airline companies will have 12 months to refund tickets purchased through contracts of carriage executed until December 31, 2020.

Further clauses of the contract are maintained and the regular delay assistance must still be provided, when applicable.

In addition, customers will be exempt from any remedy for breach of contract when they accept credit from the airline to use it in another purchase within 12 months from the date of the original purchase.

• Postponing payments on concessions contracts

The payment of fixed or variable contributions under airport concession contracts shall be postponed until December 18, 2020.

PO No. 925 will carry full effect for 60 days, extendable for another 60-day period, and it must be approved by the two houses of the National Congress to be converted into law.

• Application by the Brazilian National Civil Aviation Agency (ANAC)

Seeking to clarify the applicability of the PO No. 925 and to adapt the application of Resolution No. 400/2016 due to the effects of the pandemic in the aviation industry, ANAC issued Resolutions No. 556 and 557, both published on May 14, 2020.

Resolution No. 556 temporarily softens the rules of Resolution No. 400/2016, which establishes the General Conditions for Air Transport (Condições Gerais de Transporte). Thus, the changes in the schedule by the air carrier (especially those related to the time and itinerary) must be informed to passengers at least 24 hours in advance of the original flight schedule, applying this rule as of May 14, 2020. Therefore, the period of 72 hours to change the schedule established by Resolution No. 400 is suspended.

Furthermore, in case of changes in the schedule by the air carrier, delays and cancellations of the flight, and interruption of the service, the following obligations are suspended since February 4, 2020:

• to provide material assistance when the changes, delays, cancellations and interruption of the service are due to the closure of borders or airports by determination of the competent authorities;
• to re-accommodate on a third-party flight to the same destination at the earliest opportunity when the carrier’s own flight is available; and
• to perform the service by another means of transportation.

The air carrier is also exempt from providing food assistance in the cases of material assistance, according to the schedule, and from providing individual meal vouchers.

The carrier must also provide information to passengers as soon as required. Furthermore, the period of 10 days for the resolution of complaints and response to costumer comments on the platform Consumidor.gov.br has been suspended, and now a period of 15 days must be followed, as reported by ANAC. These measures are applicable to all flights originally scheduled as of February 4, 2020.

All the measures described herein, instituted by Resolution No. 556 and amended by Resolution No. 563, of June 9, 2020, will be in force until December 31, 2020, when the state of emergency due to the pandemic ends.

Resolution No. 557, in turn, establishes that the 12-month period for refund of tickets, brought by the PO No. 925, will not apply in case of cancellation of the air ticket made by the passenger, within twenty-four hours from the receipt of the voucher, as long as that the cancellation is made at least seven days before the boarding date. In this case, the deadline for refund will be maintained at 7 days from the passenger’s request.

Presidential Decree No. 10,284, published on March 20, 2020:

• Postponing payments of air navigation charges

At the discretion of the Air Force Commander, the payment of air navigation charges may be postponed until the end of the current fiscal year.

This governmental measure does not apply to charges that should be paid to entities authorized to provide air navigation services which are not part of the federal public administration. Moreover, this Decree does not postpone the payment of airport charges.

In this regard, Ordinance No. 402/GC3 was published on March 25, 2020, by the Air Force Command, postponing the payment of charges from March, April, May, and June to, respectively, September, October, November, and December of 2020. However, the Ordinance restated that the postponement shall not include entities authorized to provide air navigation services which are not part of the federal public administration.

Provisional Presidential Order No. 945, published on April 4, 2020:

• Assignment of use of areas under military management for national public air transport service providers

Provisional Presidential Order No. 945 and Ordinance No. 465/GC3 enabled the special assignment of use of areas under military management to allow national airlines to keep their aircraft parked at no cost during the state of public calamity due to the coronavirus pandemic. In accordance with the measure, assignments of use will be executed for a term of one month, but extensions can be admitted.

The assignment covers only the use of physical space cells, as determined by the Department of Airspace Control, and requires that they are used solely for the intended purposes, under penalty of nullity of the assignment. The measure will be formalized by a special term of assignment described in Exhibit I of the Ordinance.

The assignment shall not entail any burden to the Federal Government or to the Air Force, and they shall not be liable for any loss caused to the aircraft or to third parties. The handling, maintenance and use of the aircraft, as well as the maintenance of the assigned area, shall be the assignee’s liability, who shall be subject to the conditions set by the Air Force Command.

Resolution No. 587, of September 29, 2020:

• Extension of validity of licenses, certificates, authorizations, registrations, accreditations, training, and examinations

ANAC issued Resolution No. 587, of September 29, 2020, to extend by 120 days the validity of documents, such as selected licenses, certificates, authorizations, registrations, accreditations, training, examinations, and others. The measure aims to prevent the spread of the coronavirus, preserving the health and safety of servers and of those regulated by the Agency.

This Resolution is the third postponement granted by ANAC to extend the validity of specific documents, since ANAC’s Decision No. 42, of March 17, 2020, and Resolution No. 570, of July 1st, 2020, extended the maturity date of the documents by 120 days each. As the deadline approached, the Agency decided to renew the measure for another 120-day period.

Furthermore, the rule determines that documents, which validity has already been extended due to Decision No. 42 and Resolution Nº. 570, may not have their validity extended once again based on this Resolution.

For further information, contact the partners of our Aviation and Infrastructure and Energy practice areas.