By: Lizz Dahiam Pacheco Ramírez
Coordinator of the Consumer Advocacy Group
Consumers are increasingly purchasing goods and services through non-traditional methods, or distance sales. Examples of this are purchases over the internet or by telephone, the purchase of goods in magazines and suddenly approaches towards users. All these forms of transaction in commerce are part of what the Colombian Consumer Statute protects through the “right of withdrawal”.
In accordance with current legislation (Art. 47 of Law 1480 of 2011), this power to withdraw, or unilaterally resolve the negotiation with the seller, only applies to contracts for the sale of goods or provision of services through financing systems granted by the producer or supplier, in timeshare sales or sales using non-traditional methods or at a distance. Additionally, the referred precept establishes that the opportunity to make the withdrawal is within five (5) days from the delivery of the good (or the conclusion of the contract) and the consequence is the return of the money paid by the consumer.
Currently, this prerogative of consumers has a great impact on one of the most relevant sectors of the market economy, air transport. For the purposes of the application of the withdrawal it is indifferent whether the ticket has been acquired through non-traditional methods, at a distance, through a travel agency or directly with the airline. Thus, the scope of the withdrawal is not defined by the seller from whom the good or service is purchased, but by the non-traditional method by which the air ticket is purchased.
However, regarding the analysis of the right to withdraw in the context of passengers air transport, we cannot lose sight of the existence of a particular regulation that modifies the rules established by Law 1480 of 2011 (Colombian Consumer Statute). This special regulation reduced the time allowed to exercise the right of withdrawal and established withholdings in favor of the airline. Thus, although the Consumer Statute contemplated a term of five (5) days to withdraw along with the refund of all money, Resolution 1375 of 2015, incorporated into the Colombian Aeronautical Regulation, restricted the term to only forty-eight (48) hours, following the purchase operation, to exercise the right of withdrawal, in addition to some withholdings, depending on whether they are national or international air tickets.
In addition, the aforementioned Resolution stated that if it is a national trip, there must be a term greater than eight (8) calendar days between the departure of the flight and the exercise of the right of withdrawal, and, in the case of an international trip, between the date of the withdrawal and the departure of the flight the term must be equal to (or greater than) fifteen (15) calendar days.
Hence, the following question arises: why give application to a Resolution and not to the Consumer Statute, if the right of withdrawal was reduced and restricted, harming the consumers?
Well, the answer to this question is found in Law 1480 of 2011, which states in its Article 2 that the rules established in the Consumer Statute apply to all sectors of the economy, except those in which there is a special regulation. On those cases, where there are particular rules, preferential application should be given to the sectorial regulations, such as the Aeronautical Regulations of Colombia.
Consequently, it is imperative to have consumers that are informed regarding the existence of the right of withdrawal and the special regulations that can be found for some goods or services. This way, the interested parties will be able to exercise their rights in a timely manner, since the lack of knowledge of this situations may lead to the loss of their rights and money.