ANAC Imposes Severe Restrictions on Passenger Air Transport in the Context of the Coronavirus Pandemic

Through Resolution No. 143/2020, the National Civil Aviation Administration (the “ANAC”, after its acronym in Spanish) established that in the context of the health emergency generated by Covid-19, airlines may only market passenger air transport services from, to or within the Argentine territory, to the extent that they are authorized by ANAC under the exceptional procedures established for humanitarian repatriation flights provided in Resolution No. 100/2020, or whichever one may replace it. In addition, it established that the promotion or commercialization of regular or non-regular air transport services for passengers without such authorization will be subject to the sanctions established by the implementing regulations of the Aeronautical Code (Decree No. 326/1982).

In order to restrict the commercialization of passenger air transport services, Resolution No. 143/2020 took into consideration the emergency decrees issued by the Argentine Executive, by means of which international passenger flights originating from what were considered “affected zones” were initially banned, but a social, preventive and compulsory isolation measure was later established and thus the entry into the Argentine territory of non-residents and, subsequently, even of residents and Argentine nationals residing abroad was prohibited—although a special framework was put in place to enable the repatriation of the latter (Decrees Nos. 260, 274, 297, 313 and 331).

The ANAC also took into account that, as a result of successive resolutions of the Ministry of Transport to deal with the pandemic, commercial air passenger transport services within the Argentine territory were suspended while the social, preventive and compulsory isolation measure remains in force (Resolutions 63, 64, 71 and 73 of the Ministry of Transport).

By virtue of this, the ANAC considered that the schedules of regular passenger flights approved by ANAC under the Aeronautical Civil Aviation Regulations (RAAC) Part 121 have lost effect; therefore, once regular air transport services are re-established, and prior to the start of commercial operations, new approvals must be requested in accordance with the provisions of Resolution No. 180/2019 of the ANAC (which establishes the hourly feasibility approval procedure for the operation of regular, non-regular and special flights).

In the recitals of Resolution No. 143/2020, the ANAC points out that some airlines were promoting the sale of tickets for regular flights without having obtained the corresponding

authorization from the ANAC and that it is its mission to protect the rights of users and consumers of commercial air transport services.

Likewise, through Resolution No. 144/2020, the ANAC established that airlines that operate passenger air transport services to, from or within the Argentine territory may reschedule their regular operations or request authorizations for non-regular operations only from September 1, 2020, onwards. In addition, and in what seems to be intended to complement the provisions of Resolution 143, the ANAC authorized airlines to market air tickets with a start date of operations from September 1, 2020, clarifying that the rescheduling of regular operations and authorizations of non-regular operations will be subject to the effective lifting of the restrictions imposed on commercial air transport and the modalities of operation that in due course may be established for an orderly exit of the emergency generated by the coronavirus.

To issue Resolution No. 144/2020, the ANAC considered that it is necessary to adopt measures to respond in an agile and timely manner to the restrictions imposed by the health issue and its impact on the commercial air transport of passengers.

In addition, it considered that “the unprecedented situation caused by the new Coronavirus COVID-19 does not allow certainties regarding the termination of the preventive and compulsory measure of social isolation that threatens the commercial air transport of passengers, as any lifting of restrictions must respect the sanitary restrictions that are established in due course ”.

The resolution fails to provide specific considerations on how September 1, 2020 was set as the benchmark date—when social isolation is, as of now, only provided until May 10. In this regard, the resolution only states that “it has been found reasonable to set September 1, 2020 for the purpose of rescheduling regular operations or requesting authorizations for non-regular operations of passenger air transport subject to the effective lifting of restrictions imposed on air commercial transport and the modalities of operations that could be established in due course according to the orderly exit of the emergency”. The ANAC also deems it necessary to give certainty to the public regarding commercial operations, thus finding it appropriate to authorize the commercialization of air tickets with a start date of operations from that date.

In view of this situation, several organizations have expressed their concern regarding the measures adopted by ANAC. These include the International Air Transport Association (IATA), the Airports Council International - Latin America (ACI-LAC), the Latin American and Caribbean Association of Air Transport (ALTA), and the Chamber of Airlines in Argentina (JURCA).

According to IATA, the measures have a serious economic effect and flight restrictions should follow the quarantine times established by the Argentine Government, which, they assure, allows more flexibility in the scheduling of flights to airlines and prevents the

country from being isolated in the event that other countries open their borders in coming weeks. Likewise, IATA considers that the restriction generates uncertainty for international airlines that have a valid operating permit to exercise the rights derived from it, in addition to jeopardizing compliance with the international commitments acquired under the bilateral agreements signed by Argentina.

On the other hand, ACI-LAC and ALTA, along with IATA, also expressed their concern about the effects of these measures, which they understand were not shared or agreed on by the industry. They assure that the risk of survival that airlines will face under this regulation endangers thousands of jobs in the country, Argentina's connectivity with the world, as well as internal connectivity, which is vital for the transport of essential supplies and for the economic and social well-being of the nation.

The members of JURCA also expressed their great concern about the implications that it generates for the continuity of air operators and made themselves available to discuss and work out joint solutions that resolve both unavoidable health demands and the urgent needs of the airline industry in the pursuit of its survival.

The situation is so important that it was the subject of a newspaper article published on the online site of The New York Times (read article link).