By Barbara Gomes de Oliveira

Amidst the many disruptions occurring between passengers and airlines, legal disputes have become common where users seek compensation for problems such as lost luggage, delays, cancellations and overbooking.

For a long time, such requests were based on the rights and guarantees set forth in the Consumer Protection Code (Law 8,078/90), after all, there is no doubt as to the nature of the consumer relationship. However, in their defense, in cases involving international air transport, airlines sought the application of the provisions of the Warsaw Convention (also known as the Montreal Convention), which generated a certain conflict in case law, which was decided in divergent ways, depending on the understanding of each court.

Until 2017, the prevailing case law understanding was that the Consumer Protection Code prevailed over the Warsaw Convention, and there was even a decision by the Superior Court of Justice that confirmed this orientation (AgRg in AREsp: 388975 MA 2013/0289400-6)

Unlike the Consumer Protection Code, the Warsaw Convention, consolidated by the Hague Protocol with the purpose of unifying the rules relating to international air transport, provides for limitations on compensation, according to the damage suffered by the user, which, evidently, is much more advantageous to the person who will bear the compensation.

In 2017, however, the Brazilian Supreme Court (STF) decided, in the judgment of RE 636,331, that the Warsaw Convention on the Consumer Protection Code should prevail, based on the constitutional provision of article 178, which highlights the application of the principle of reciprocity in international transport issues. Since then, the judgments of the first instance courts, as well as of the Courts of Justice around the country, have been changing, which have based their decisions on the aforementioned STF judgment, making it a landmark in the matter.

Consequently, the pacification of case law resulted in increased legal certainty in consumer relations, in addition to stabilization in the setting of quantum compensatory, even reducing the legal liabilities of airlines, by mitigating the possibility of illicit enrichment by passengers who litigate without effective cause.