A proteção do consumidor nos voos aéreos internacionais

Abstract

The Constitution of the Federative Republic of Brazil, aiming to equalize the legal relations of consumption in the country, inserted in its text the consumer protection, raising it to the category of fundamental right and principle of the economic order, guaranteeing the consumer protection to all Brazilian and foreign residents in our territory. This constitutional order established the originality of the Consumer Defense Code, which governs all consumer contracts in which there is an imbalance between the contracting parties. In cases of an international air service contract, the Code's discipline was widely used by Brazilian courts. However, in judging RE 636.331/RJ with ARE 766.618/SP, and interpreting art. 178 of Federal Constitution, the Federal Supreme Court held that the content of the Warsaw and Montreal Conventions should be applied by overlapping the Consumer Protection Code in that type of contract. In this aspect, the present research had as objective to analyze if thejurisprudential understanding of the Court really protects the consumer, visualizing the favorable and unfavorable points to the protected one. For that, the investigation of the doctrinal concepts and knowledge that refer to the thematic was done. Next, the conflict between the norms was observed, until arriving at the analysis of the thesis approved by the Supreme Court. Finally, it is observed that the understanding of the Federal Supreme Court, although to a certain extent was favorable to the passenger, decreased the level of protection provided by arts. 5th, inc. XXXII, 170, inc. V, of the Major Law and art. 48 of the Transitory Constitutional Provisions Act, for the benefit of companies providing international air transport services.