Agências reguladoras e a proteção do consumidor no transporte aéreo: um estudo de caso do PL 3514/2015

Abstract

This study offers a critical analysis of the role of regulatory agencies, with special emphasis on the Brazilian Civil Aviation Agency (ANAC), in addressing the challenge of harmonizing sectoral regulation in air transport with the consumer protection framework established by the Consumer Defense Code (CDC). The central focus lies on the potential transfer of regulatory responsibility over the right of withdrawal, as provided in Article 49 of the CDC, and its implications for the effectiveness of legal protection in electronic contracting within the air transport sector. The research hypothesis is that, although ANAC’s technical regulation enhances efficiency and specialization, its overlap with the consumer protection regime may weaken fundamental rights and generate normative conflicts. The study adopts a deductive approach and a legal-normative method, combined with a comparative analysis of legislation, policy drafts — particularly Bill No. 3,514/2015 — administrative resolutions, and international experiences, as well as a jurisprudential analysis of decisions rendered by the Brazilian Supreme Federal Court (STF), the Superior Court of Justice (STJ), the São Paulo State Court of Appeals (TJSP), and the Federal District Court of Appeals (TJDFT). The findings reveal three main dimensions: (i) the technical contribution of regulatory agencies to the implementation of sectoral public policies; (ii) the risks of regulatory capture and the erosion of the minimum protection guaranteed by the CDC; and (iii) the need for mechanisms of normative harmonization between regulatory law and consumer law. The study concludes that ANAC must act in a complementary manner, guided by legal oversight parameters and regulatory risk matrices based on the real impact on fundamental rights, in order to preserve the primacy of the CDC as the core instrument for consumer protection in contractual relations within the air transport market.