ANAC’s slow pace in deciding upon administrative fines
The National Civil Aviation Agency (“Agência Nacional de Aviação Civil” – “ANAC”) has taken up to 6 years, counting from the moment the complaints are filed by passengers, to make definitive decisions on offences allegedly committed by airline companies in providing their services. This figure was recently published in the Brazilian press along with an explanation that processes originating from complaints filed in mid-2008 are only now receiving decisions from the ANAC Appeals Board.
From the moment a passenger files a complaint with ANAC through to the final decision in the agency’s highest decision-making authority, the case moves through a process of preliminary inquiry that results in the publication of a so-called ‘Notice of Violation’ and the launching of the corresponding administrative process. Following this, the airline company is officially called upon to present its defense and, based upon the information found in the Notice of Violation and the defense presented by the airline company, ANAC states its decision and, if a violation is found, establishes the fine to be paid by the airline.
The airline can either pay the fine with a 50% discount or appeal to ANAC’s Appeals Board, a panel which is currently composed of 6 members who decide whether the fine is to be upheld or not. A total of 3,815 administrative processes are currently awaiting analysis by the Agency’s Appeals Board.
Airline companies rarely manage to have the fines established by ANAC’s first-tier decision-making body overturned by the Appeals Board. This is mainly due to the legal assumption that the supposed offence, as stated in the Notice of Violation, did actually occur and the airline companies’ difficulties in exercising their right to defense in these administrative processes. Such difficulties range from the production of so-called ‘negative proof’ (proof that the alleged events did not take place) to the lack of airlines’ records of incidents for periods of time – something which affects the examination of the processes when the airline no longer have information or documents to present with its defense.
In response to the information published in the press, ANAC announced that new decision-making bodies are in the process of being created, and these will shortly form part of the Appeals Board, meaning there will subsequently be an increase in the speed with which decisions will be issued. Furthermore, the Agency stated that the delays are a result of strict compliance with the law, and that almost a quarter of the total number of processes relate to the exceptional number of complaints that ANAC received in 2008. ANAC also stated that between the years 2008 and 2012, the Agency collected more revenues through the imposition of fines than any other regulatory agency.