Since the Consumer Defense Code (Law 8.078/1990) came into force, in March 11th, 1991, most judicial demands filed by passengers against airlines due to occurrences during international flights are resolved utilizing this normative text. However, from the Brazilian Supreme Court's decision issued on 05/25/2017 - content which was only made public on 11/13/2017 - the case law panorama has a well-defined framework for consumer relations with the application of the International Conventions that regulate this matter.
The en banc Federal Supreme Court, by analyzing the appeals RE 636331 and ARE 766618 as topics of general1 repercussion, has defined, by 9 votes in favor to 2 against the following thesis: "in the terms of art. 178 of the Constitution, the norms and the international treaties limiting the responsibility of air carriers, particularly the Warsaw and Montreal Conventions, prevail over the Consumer Defense Code."
The appeals addressed the application of the indemnity limit provided for in the International Conventions in the event of baggage loss during an international flight (RE 636.331), and the limitation period to be observed in passenger complaints against airlines (ARE 766.618).
In the Extraordinary Appeal No. 766.618, reported by Minister Roberto Barroso, the discussion revolved around the limitation period of the lawsuit filed by Cintia Cristina Giardulli against the airline Air Canada. In this case, the plaintiff filed the action 2 years and 8 months after her arrival at the final destination. The air company defended the thesis that the limitation period had lapsed based on article 29 of the Warsaw Convention and its alterations (the limitation period in the Montreal Convention is provided by article 35).
Minister Roberto Barroso in his vote, after exhausting the constitutional theme on the hierarchy of international treaties when internalized in our legal system and the prevalence of Warsaw Convention and its alterations in relation to the Consumer Code, in light of the content provided by article 178 of the Federal Constitution of 1988, referenced the precedent of RE 297.901/RN2 reported by Minister Ellen Gracie and granted the Appeal to overrule the contested ruling - which rejected the preliminary argument of the limitation period lapse - and ruled that the request was unfounded due to the limitation period provided by article 29 of the Warsaw Convention.
In regards to the Extraordinary Appeal 636.331, reported by Min. Gilmar Mendes, filed by Société Air France against Sylvia Regina de Moraes Rosolem, the objective consisted in the acknowledgement of the violation by Rio de Janeiro's Court's ruling of art. 178 of the Federal Constitution, aiming at the prevalence of the Warsaw Convention over the Consumer Defense Code, particularly regarding the indemnity limitation for material damages in the case of passenger's baggage loss during an international...