Put Leonardo Neri and Barbara Oliveira – 09/04/2020
The hotel and tourism sector has been one of the most affected worldwide during this quarantine period. In Brazil, a loss of R$14 billion is estimated since the beginning of the crisis, with the possibility of a reduction of 295 thousand formal jobs, according to data from the National Confederation of Commerce of Goods, Services and Tourism (CNC).
Due to the increasingly alarming results, on April 8, 2020, Provisional Measure No. 948 (MP 948/2020) was published, which provides for the cancellation of services, reservations and events in the tourism and culture sectors, due to the COVID-19 pandemic, which led to the recognition of the state of public calamity decreed on March 20, 2020. Until now, only the situation of airlines had been regulated, through MP 925/2020.
MP 948/2020 provides alternative measures to be adopted by suppliers in cases of cancellation, mitigating some consumer rights in order to contain losses in the sector. The purpose of MP 948/2020 is to reestablish balance in the consumer relationship, in view of the crisis faced worldwide, both by consumers and suppliers, avoiding the attribution of excessive burden to one of the contracting parties.
In this sense, article 2 establishes that the supplier will not be obliged to reimburse the consumer in the event of cancellation of services, reservations or events, provided that the following is ensured:
- the rescheduling of services, reservations or events within a period of 12 (twelve) months, counting from the end of the state of public calamity, taking into account the seasonality and the values of the contracted services;
- the provision of credit, which may also be used by the consumer for a period of 12 (twelve) months, counting from the end of the state of public calamity; or
- any other agreement entered into with the consumer.
If it is not possible to adopt any of the three measures, the supplier must refund the amounts paid by the consumer, updated by the IPCA-E, within 12 (twelve) months, counting from the end of the state of public calamity.
Furthermore, the consumer is guaranteed that the cancellation will not incur any additional costs, fees or fines, as long as the request is made within 90 (ninety) days from the entry into force of MP 948/2020.
For reference purposes, article 3 mentions article 21 of Law 11,771/2008 as a list of business companies to which the provisions of article 2 apply, also adding other providers of tourism services and cinemas, theaters and digital platforms for online ticket sales, including hotel and accommodation services.
As for artists and other professionals already hired to perform shows, performances or other events, they will not be required to immediately refund the amounts received for the services, as long as the event is rescheduled within 12 (twelve) months, counting from the end of the state of public calamity. Otherwise, the professional must refund the amounts received, updated by the IPCA-E, within the same 12 (twelve) month period.
Finally, article 5 states that the relationships set out in MP 948/2020 constitute cases of fortuitous event or force majeure and, therefore, do not give rise to moral damages, fines or other penalties provided for in the Consumer Protection Code.
The measures provided for in this new MP 948/2020 should contain the losses in the sector and maintain jobs, placing suppliers and consumers on an equal footing, taking into account the vulnerability of each party within the situation faced.