The purpose of this article is to inform about the behavior of airlines regarding non-compliance with the Consumer Statute, and the obligations arising from the provision of air passenger transport services.
Regarding the Consumer Statute (Law 1480/2011), which establishes the rights of consumers, these become obligations for those who, as in our case, provide a service such as that offered by airlines (air passenger transport). These obligations include the rights to complete, timely, and suitable information as established in Article 3, numerals that include receiving a quality product, and the prohibition of misleading advertising defined in Article 5, numeral 13 as any message that does not correspond to reality or is insufficient, thereby inducing or potentially inducing error, deceit, or confusion, as enshrined in Article 30 of the same law.
According to the above, when consumers are dissatisfied, they file complaints or claims generally with the same airline that engaged in conduct contrary to the Statute, and in certain cases they file lawsuits before the Superintendency of Industry and Commerce (SIC), which in 2013 sanctioned the airline Viva Colombia for violating the Consumer Statute, since the information given to consumers regarding the time to check in and be in the boarding area, and therefore the flight time, was incorrect or was changed without timely notice of such change. Thus, the SIC imposed a sanction corresponding to the refund of COP $766,914 to each passenger plaintiff and a fine of COP $14,737,500 (Portafolio, 2013).
Regarding the RAC, in Chapter 3, numeral 3.10.1.8, as amended by Resolution No. 03175 of June 11, 2015, it expressly establishes the right of withdrawal and retraction for sales through non-traditional means as set forth in Decree 1499 of 2014, which is closely linked to the consumer's right to adequate information. The Special Administrative Unit of Civil Aeronautics (AEROCIVIL) has sanctioned airlines for omitting information or providing incomplete information regarding these two rights. Therefore, it is incorporated into the RAC; the statute establishes a right of retraction, but the one that applies to airline tickets is that enshrined in the RAC. Thus, the authority with the power to impose administrative sanctions is AEROCIVIL. At the end of 2016, AEROCIVIL opened proceedings against three airlines due to complaints filed by users regarding incomplete information, lack of information about the right of retraction, withdrawal, or cancellation of flights, and even misleading advertising. The fines to be imposed range around COP $716 million (AEROCIVIL, 2016).
Furthermore, in 2015, AEROCIVIL sanctioned several airlines for non-compliance with the RAC and certain airport security obligations. These sanctions are not related to the Consumer Statute. Avianca had to pay 811 million pesos, Dutch Antilles was fined approximately 270 million pesos, with a frequency of 2 weekly flights; this was the second highest in that period (nothing compared to Avianca with 5,500 weekly flights). Taca was fined 268 million, Lan Colombia 219 million, Iberia 128 million, ADA 76 million, state-owned Satena 72 million pesos, and Conviasa 58 million. (Investigative Unit, EL TIEMPO, 2016)
From the above, we can see that AEROCIVIL is the authority that imposes administrative sanctions for non-compliance with the RAC, and that airlines have had to pay and rectify their conduct thanks to the effective enforcement by AEROCIVIL, even regarding airport security aspects. And in relation to the Consumer Statute, it protects consumers when conduct contrary to its provisions occurs, sanctioning the behavior of airlines.
Today, given the sanctions imposed by the SIC, and the tutela actions filed for violation of rights and norms, such as in Judgment T-987/12, in which the court ordered airline Avianca to delete the database called "list of non-compliant travelers," intended to deny access to the essential public service of air transport provided by that airline, under the terms explained in that decision, and requested AEROCIVIL to impose an administrative sanction.
Thus, the regulation of control entities over airlines is comprehensive, as institutions such as the SIC, AEROCIVIL, and those of the ordinary jurisdiction have carried out the respective controls to ensure compliance with the rules. In addition to the controls, airlines have provided compensations to users to avoid greater sanctions. The reasons for compensation range from flight cancellations, delayed flights, or baggage issues, to early flights, which have a minimal percentage. The forms of compensation are mainly vouchers, accommodation, and AEROCIVIL indicates the percentages of the "types of compensations given to passengers in vouchers (31%), equivalent to $6,650 million, accommodation (21%) with $4,800 million, baggage delay (12%) with $2,771 million, and baggage theft (6%) totaling $1,407 million. In the case of airlines, those that provided the most compensations were Aerolíneas de Antioquia (ADA) with 5,073 and Fast Colombia/Viva Colombia with 3,269, according to the indicator established per 100,000 passengers"[1].
So we can see that the authorities have indeed acted with the goal of protecting consumers, improving service, and preventing arbitrary decisions, providing security to users.