Put Leonardo Neri Candido de Azevedo – 24/03/2020

In the first half of March 2020, with the decrease in revenues from the tourism sector compared to the same period last year, the segment in Brazil has already shown a loss of approximately R$2.2 billion. The National Confederation of Commerce of Goods, Services and Tourism (CNC) fears that the impact will be even greater in terms of the loss of formal jobs, even in light of new measures adopted with the enactment of Provisional Measure (MP) No. 927, on March 22, 2020.

Following the restrictions experienced worldwide, with the closing of borders in several countries, the drop in travel flow could still lead to huge losses for both consumers and tourism companies.

With an average occupancy rate below 10% in the second week of March, especially for corporate events, some hotels, resorts and theme parks began to close their activities for an indefinite period.

The associations representing the sector presented a proposal to the federal government committing to cover 100% (one hundred percent) of the salaries of 10% (ten percent) of the 380,000 employees, which would be the contingent necessary for the maintenance of the establishments. The remaining 342,000 employees would not be laid off, but would remain at home with salaries paid by the government. The proposal submitted is awaiting a decision by the government, which has not yet made a statement on the matter.

The sector involves enormous circulation not only of people, but also of goods, resulting in a significant impact on economic activities dependent on the movement of these goods.

The unemployment sample in the sector takes into account that, on average, for a reduction of 10% in the volume of revenue, the level of employment in the segment is impacted by 2%.

For the consumer, there is also the fear of being forced to quarantine within the hotel where they are staying on a given trip, remaining confined and prevented from returning to their own country.

However, to date, only Provisional Measure No. 925 has been adopted, on March 18, 2020, which does not directly address the interests of hotel companies, being restricted to airlines. The Provisional Measure, among other measures, establishes that:

Art. 3 The period for reimbursement of the amount relating to the purchase of airline tickets will be twelve months, observing the rules of the contracted service and maintaining material assistance, in accordance with current regulations.

1º Consumers will be exempt from contractual penalties, through the acceptance of credit for use within twelve months, counting from the date of the contracted flight.

2. The provisions of this article apply to air transport contracts signed up to December 31, 2020.

In this sense, the Ministries of Justice and Public Security, Economy, Tourism and Health released a note in which the applicability of ANAC Resolution No. 400, the Consumer Protection Code (CDC) and the Civil Code (CC) was ratified, especially in cases where imbroglios arise from an unpredictable event that impacts the entire tourism sector.

Such measures directly help airlines, and indirectly all other companies in the segment, to protect themselves legally and financially in making immediate decisions, with the aim of reestablishing good relations with consumers, by resolving unforeseen events, mitigating the possibility of a flood of administrative complaints or legal actions before consumer protection agencies and the Judiciary, respectively.

In any case, in any decision taken, there is a need to respect the consumer's right to information, whether by public or private entities.

The numerous requests for flight cancellations and the statements by the Public Prosecutor's Office, Procons and the Judiciary resulted in the adoption of the aforementioned MP No. 925 by the Executive, which delimited the position of airlines, which adhered to the rescheduling of flights and cancellations without abusive charges, as well as hotel companies which, by the principle of equal treatment, should also use the MP in question in an analogous way, to adapt their reservation cancellation policies, until a specific measure is implemented for their core activity.

The positions adopted by tourism companies must adhere to common sense in fulfilling contractual obligations, in order to protect consumers and companies, especially in a pandemic scenario that is expanding daily on a large scale.

Consumer rights, as explained above, are based on the user's vulnerability to provide their defense within a given market context.

Considering this principle, in relation to contractual balance, the guideline is not to modify the clauses, since the objective is to ensure the economic balance of the contract from the moment it is signed, without the need for its cancellation or invalidation, but only to rectify it in what is essential. Thus, if the contract is maintained, the necessary adjustments are made to achieve a new balance, with the possibility of changing hotel reservations, flights and tourist packages without any burden to consumers and tourism companies.

Exceptional situations such as those discussed here demonstrate that consumers and suppliers are equally exposed to COVID-19, and the lack of legal protection on one side could lead to an accelerated growth in the number of infected people on the other side.

Thus, the Judiciary and consumer protection agencies have understood the need for any cancellations and rescheduling to be carried out without causing abuse to the consumer, while at the same time ensuring that suppliers are not solely harmed.

For this reason, in addition to legal solutions based on constitutional norms and principles, what is necessary is the existence of a good relationship between the parties, which is why it is recommended that companies in the sector adopt an emergency policy focused on resolving extrajudicial conflicts, through investment in contract negotiation channels and the use of a legal mediation platform, as a way of maintaining customer loyalty, minimizing the risk of a devastating effect due to the high contingency in view of the accumulation of demands in the judicial sphere.