Air transport plays an essential role in the economic and social development of any country, as it connects people, boosts tourism, promotes business and facilitates access to countless opportunities.
However, this sector is immersed in a reality marked by extremely high operating costs, volatile profit margins and frequent external fluctuations, such as exchange rate variations, fuel prices, climate issues or even health and political crises.
In addition, airlines face strict regulatory legislation and are monitored by bodies that, although essential for safety, generate complexity and additional compliance costs.
Even in the face of this entire scenario, such companies have historically been treated by the Judiciary Branch and lawmakers as almost strictly liable for any discomfort experienced by passengers, often receiving substantial monetary penalties in cases where plaintiffs are not even required to provide reasonable evidence of their damages.
The excessive protection afforded to consumers may seem like a social advancement when viewed in isolation. After all, who has not experienced a canceled or delayed flight and felt harmed as a result?
The core of the problem, however, lies in the excessive manner in which civil liability is applied in Brazil. The frequent issuance of judgments and disproportionate damages, together with the rigid enforcement of strict liability, leads companies to shoulder not only the inherent risks of their operations but also the consequences of events outside their control.
Although it is just for consumers to be compensated in cases of genuine harm, the absence of evidentiary safeguards creates space for opportunistic litigation and the trivialization of indemnity claims, ultimately encouraging mass litigation.
In this context, companies and startups specialized in purchasing claims arising from lawsuits against airlines and in encouraging litigation have emerged, even in cases with little factual or evidentiary basis. For the passenger enticed by these promises of easy gain, it is yet another advantage: they do not have to bear the costs, and the risk of the lawsuit shifts to the intermediary company.
What many consumers fail to realize is that, in the end, all these costs — from attorney’s fees to potentially excessive compensation awards — are passed on to the price of airline tickets. Therefore, what may seem like a short-term benefit to the individual consumer ultimately results in lasting harm to the collective.
It is in this context that the well-known “Brazil cost” comes into play: the greater the legal uncertainty and the more burdensome and unchecked the imposed penalties are, the more unfeasible it becomes for companies to offer tickets at competitive prices, as they need to offset the losses in the fare structure.
Data from the Brazilian Association of Airline Companies (ABEAR) reveal that since 2020, the number of lawsuits against Brazilian airlines has increased by an average of 60% per year. Surprisingly, 98.5% of lawsuits against airlines worldwide are filed in Brazil. To give an idea of the disparity, while in the United States there is one lawsuit for every 2,585 flights, in Brazil there is one lawsuit for every 0.52 flight – that is, practically one lawsuit for every two flights.[1].
This scenario is worsened by the actions of a small group of lawyers: just 20 individuals or law firms are responsible for 10% of all lawsuits filed against airlines in the country, indicating a possible practice of predatory litigation[2].
The financial consequences are significant. It is estimated that airlines spend around R$1 billion annually on legal costs, including compensation payments that average R$6,700 per passenger when the courts determine that moral damages have occurred[3].
In this logic, the ones who end up paying the price are the very consumers who were supposed to be protected. While the official discourse celebrates the defense of passenger rights, in practice it triggers a side effect that weakens competition, reduces the possibility of promotions, and ultimately makes air travel more elitist.
If airlines – especially smaller ones or those potentially interested in operating regional routes – fear the incalculable costs of an unforgiving legal environment, they will tend to pull back from new investments, reducing the number of flights and driving up ticket prices due to lower supply. The consequence is a reduction in the air network, which once again harms the very passengers who most depend on affordable prices and broader route coverage.
In light of this, it is urgent to reassess the application of the current regulatory framework, aiming to make consumer protection in air transportation more balanced. Measures that condition airline liability to situations that are effectively proven, as well as the granting of compensation proportional to the damage and the analysis of the circumstances of each case, would have the effect of restoring common sense.
Similarly, the Judiciary Branch, by requiring a minimum of concrete evidence before holding companies liable, would preserve the broader scope of consumer protection and, at the same time, acknowledge that there are a number of factors beyond the carriers’ control. Far from meaning a setback in consumer protection, this approach would imply greater legal certainty and, in the long term, greater benefits for everyone, as there would be a decrease in artificial litigation and, consequently, a reduction in costs that would inevitably be reflected in the final price of tickets.
The balance between liability and reasonable evidentiary standards, as well as a systemic view of the economic consequences of judicial decisions, represents the safest path to avoid distortions that, in practice, harm exactly those we aim to protect.
If there is a genuine intention to favor the consumer, the best path is not to encourage ostensive and automatic protection, but rather to build solid support without unbalancing the playing field in such a way that everyone ends up losing.
A new stance from society as a whole would therefore not only protect the airline industry from excessive burdens but also reduce the risk of these costs being passed on to the end user. Ultimately, the lower this cost pass-through is, the cheaper the tickets will become, the greater people’s access to air transportation will be, and the higher the competitiveness among companies, promoting healthy development for the economy and the country.
All of this will allow civil aviation to finally get out of turbulence, take sustainable flights, and offer truly affordable tickets to all citizens.
[1] https://www.poder360.com.br/poder-justica/brasil-concentra-985-das-acoes-contra-aereas-diz-abear/?utm_source=chatgpt.com
[2] https://www.abear.com.br/imprensa/agencia-abear/noticias/desde-2020-numero-de-processos-contra-companhias-aereas-aumentou-em-media-60-ao-ano/?utm_source=chatgpt.com
[3] https://agenciabrasil.ebc.com.br/geral/noticia/2024-09/abear-critica-excesso-de-judicializacao-contra-o-setor-aereo?utm_source=chatgpt.com
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Autor: Camilla Dias Lopes Liporaci • email: camilla.liporaci@ernestoborges.com.br • Tel.: +55 61 98666 0542
