Comentários sobre a proposta de alteração do Código de Defesa do Consumidor

It was very surprising the approval of a proposal to modify article 39 of the Brazilian Consumer Protection Codeby the Brazilian Chamber of Deputies, so that the charging for baggage transportation becomes an abusivepractice. Nothing better describes the effects of the news than perplexity and incomprehension about themotivation for such a measure, which, if sanctioned, would represent a setback in terms of modernity in airtransportation regulation and would place Brazil out of step with the best world practices.
There can be no Government intervention regarding the formation of the price and conditions for contracting airtransportation services, otherwise the principles that guide the economic order provided for in article 170 of theBrazilian Federal Constitution would be violated, especially free competition, according to which entrepreneursare free to set prices in accordance with market conditions.
The freedom of tariffs, understood as the right to define prices and contracting conditions, is also guaranteed byinternational treaties signed by Brazil.
The Chicago Convention, promulgated in Brazil through Decree 21.713/1946, aimed to create a harmonizedlegal system in which service operators could have legal certainty and, therefore, predictability, to plan theexecution of their activities around the world. Based on these premises, the “freedoms of the air” regime wasimplemented through Air Services Agreements (ASAs), which are treaties signed between countries to establishthe necessary conditions for offering air transportation services between the signatories. Brazil has signed airservice agreements with more than one hundred countries.
The most modern treaties – open skies agreements – implement regimes in which there is less regulation andencourage broad competition between airlines, firmly grounded in freedom of contracting and pricing.
Take, for example, the most recent treaty between Brazil and the United States, of March 2011, which providesthat “each party shall allow prices for air transportation to be established by airlines of both Parties based uponcommercial considerations in the marketplace”.
Likewise, the agreement signed with Switzerland stands out, approved by a legislative decree of the BrazilianSenate, according to which “tariffs charged for air services may be freely established by the designated airlines”.
The proposed legislative change, in seeking to control prices in the form of a ban on contracting thetransportation of baggage under the cloak of alleged and mistaken abusiveness, actually hurts the interests ofconsumers: the ones who travels without checked baggage, who will pay for a service that he/she does not use;and who travels with luggage, since the inclusion of costs associated with the transportation of baggage in theticket price prevents the proper allocation of expenses and income, which generates a potential increase in theprice for the service.

As experience and studies in the field of economics show, State interference in the formation of the price ofgoods and services does not promote social justice or effectively protect the consumer, but it actually causes areduction in investments and discourages economic activity.
The constant populist tendency to impose price fixing or freezing, as intended through the modification of thelegislation, has already been responsible for long periods of economic stagnation, and that is what will happen ifmeasures like this are incorporated into our legal system.

Texto publicado originalmente em Inglês no site: Charge for the transportation of baggage on aircrafts: Setback in the modernization of air transportation regulation – Lexology