Turkey: New Distance Selling Contracts Regulation In Turkey – Chapter I (Scope And Pre-Information)

Regulations required for the implementation of the Turkish Consumer Protection Act, published on November 7, 2013 effective May 1, 2014("New Consumer Protection Act"), are being published one after the other. There is no doubt the Distance Selling Contract Regulation was one of the most expected regulations in this respect, which will be implemented on contracts entered by parties through the use of distance communication tools without physically meeting. The Distance Selling Contract Regulation was published in yesterday's Turkish Official Gazette Nr. 29188 which will enter into force within three months from that date. It will superseded the current effective Regulation on Distance Selling Contracts which had entered into force on March 6, 2011 and published in the Turkish Official Gazette Nr. 27866. The superseded regulation had superseded the oldest regulation on the same topic which was effective from June 13, 2003, and published in the Turkish Official Gazette Nr. 25137.

Effective Date: February 27, 2015!

Article 48 of the New Consumer Protection Act is governing distance selling contracts of which the 6th sub-paragraph rules contracts beyond the scope of distance contracts. The rights and obligations of the consumer along with the seller and the provider, right of withdrawal, information requirement, delivery and other terms and conditions will be determined under a separate regulation. Hence, the Distance Selling Contract Regulation to become effective February 27, 2015 will serve this purpose ("Regulation").

Description of Distance Selling Contract: Contracts per SMS also Distance Selling Contracts!

The New Consumer Protection Act described the distance selling contract as ".... contracts entered by using distance communication tools until the contract among the parties has been established including the moment of its establishment within a system established for distant promotion of goods or services without requiring the seller's or provider's along with the consumer's simultaneous physical presence..." The Regulation adopted the same description and determined which tools constitute distance communication tools by listing them. Accordingly, any contract established via "any kind of tool or platform enabling entering into a contract without the requirement for coming together physically such as letter, catalogue, telephone, fax, radio, television, electronic mail message, SMS, İnternet" shall be deemed as a distance selling contract. Different from the superseded regulation, this Regulation includes contracts established via SMS within the scope of distance selling contracts.

The following shall not be subject to Regulation

Although the above definition gives an idea of the scope of the Regulation, the Regulation explicitly listed under its Article 2 on which contracts the Regulation shall not be implemented.

According to the mentioned Article 2, the following services have been left out of the Regulation's scope:

(i) financial services,

(ii) sales made through automatic machines,

(iii) through public phones by using such phones with telecommunication operators,

(iv) services for betting, drawing, lottery and similar chance games,

(v) constitution, transfer or obtaining of real estates or rights related thereto,

(vi) renting of houses,

(vii) package tours,

(viii) time share property or holiday, long term holiday service and the re-sale or exchange thereof;

(ix) delivery of daily consumable materials such as food and drinks to the residence or office of the consumer by regular delivery,

(x) passenger transportation services except for few obligations to be subject to the Regulation,

(xi) installation, maintenance and repair of goods,

(xii) nursing services, social services to support families and persons such as children, elderly or ill persons' care.

Pre-Information Obligation: Not only before establishment of contract but before acceptance of proposal required

As in the previously superseded regulation, this Regulation requires the consumer is informed of certain information by the seller or the provider before the distance selling contract is established. However, different from the superseded regulation this Regulation extended the scope of such information requirement widely and on top of that it ruled the required information is provided not only before the contract has been established but before any proposal to this end is accepted by the consumer.

Pre-Information

The mandatory information to be provided to the consumer before the distance selling contract is established or the equivalent proposal is accepted are as follows:

(i) essential qualifications of the good or service subject to contract;

(ii) name or title of the seller or provider, MERSIS number, if any;

(iii) open address, phone number and similar communication information that will enable the consumer to maintain quick communication with the seller or provider along with the identity and address of the person acting in the name or on behalf of the seller or provider;

(iv) if there is communication information of the seller or the provider to enable the consumer to transmit its complaints other than the information mentioned in the preceding paragraph, if any, such information should be provided;

(v) total price of the good or service including all the taxes, calculation method of the price if the type of price does not allow a prior calculation, all the transportation, delivery and similar additional charges, if any, along with the information that additional charges could be applicable if such charges cannot be calculated in advance;

(vi) additional charge applicable to the consumers if the usage fee of the distant communication tool cannot be calculated over the ordinary fee tariff at the time when the contract is established;

(vii) information on how the payment, delivery, performance will be made along with undertakings in relation thereto and settlement procedure of the seller or provider with regard to complaints, if any;

(viii) if there is a right for withdrawal, terms for using such right, period, procedure thereof and information on the transporter which will be assigned by the seller for the return of the related goods or service;

(ix) open address, fax number or electronic mail information serving the withdrawal notification;

(x) if no withdrawal right is applicable, information on the inability of the consumer to benefit from the withdrawal right or on which conditions such withdrawal right will be lost;

(xi) upon the request of the seller or provider, deposits to be paid or provided by the consumer or other undertakings and the conditions related thereto, if any;

(xii) technical protection measures that could effect the functionality of the digital content, if any;

(xiii) information on which hardware or software the digital content could work together about which the seller or the provider has information or they are reasonably expected to have such information;

(xiv)information on how consumers can make their application for settlement of dispute to Consumer Court or Consumer Arbitration Council.

Although provision of the above information is mandatory, it is possible for the parties to mutually agree otherwise. In other words, consumer and seller or providers are freely entitled to mutually agree upon such information with an amendment. However, it is the duty of the seller or provider to refute any argument of consumers that such information has not been provided, i.e. no pre-information has been made.

Pre-Information has been extended and diversified

Possibility of identifying the seller or provider:As it can be understood from above, the information required to be provided to the consumer before the distance contract has been established or an equivalent proposal is accepted, has been held widely extended and it has been made easier for the consumer to contact the seller or provider promoting goods or services via distant communication tools. Thus, it will be maintained that the consumer can determine without any doubt the identity of the seller or provider from whom the consumer purchased goods or services.

  1. Withdrawal right has been extended:The superseded regulation remained insufficient in using the withdrawal right and was not able to meet the needs of consumers in this respect. This Regulation points out under which circumstances the withdrawal right could be used and under which not. Additionally, the Regulation prolonged the term for using the withdrawal right and specified the obligations of the seller and provider along with the consumer in relation to such withdrawal right.
  1. Sale conditions have been specified: It is understood that the Regulation aims to raise the awareness of the consumer in identifying all but all the amounts the consumer is obliged to pay while purchasing the related goods or services. Hence, the same provision ruling such obligation is also specifying the consumer is not obliged to cover the additional charges if the consumer has not been informed about them. Additionally, it has become mandatory that the total price of the goods or services including all applicable taxes includes all the expenses based on each invoicing period in contracts with an indefinite term or subscription agreements for definite term.
  2. Technical information to be provided to the consumer: Part of the information the consumer has to be informed before the distance selling contract is established or an equivalent proposal is accepted is technical. As informing the consumer about technical protection measures that could have an affect on the functionality of the digital content defined as "any kind of data provided in digital format such as computer program, application, game, music, video and text", and information on which hardware or software the digital content could work together, on which the seller or the provider has information or they are reasonably expected to have such information are included within the mandatory pre-information list. Such technical information is qualified to orientate consumers, who purchase digital content via distance communication tools, on which conditions the goods or services they purchased could function.

How to enter into contracts with minors and the disabled?

There is no doubt that a comprehensive part of the section which could purchase digital content via distant communication tool will be constituted of minors. Hence, the superseded regulation had envisaged a protection provision in this respect and had required to state in conformity with the used distant communication tool and within good faith principles that the mandatory pre-information were provided for commercial purposes in a way to protect those who are incapable, minor or disabled. This Regulation, however, omitted to have such a provision and obviously will seek the solution of such matter within the general provisions of the law. Hence, any seller or provider who has anyhow entered into a distance selling contract with minors or the disabled could possibly have problems in making the delivery of the good or services they have sold to the latter. For this reason, we advise to put a protective provision in this respect within the pre-information form.

Method for Pre-Information:

Different from the superseded regulation, this Regulation determines the pre-information method and prescribed the consumer has to be informed about the required pre-information in writing or permanent data storage unit in accordance with the used distant communication tool, at least in 12 font letters, in an understandable language, in open, plain and readable form.

If the distance selling contract has been established via Internet, it is mandatory the following pre-information is separately indicated just before the consumer becomes obliged to pay:

(i) essential qualifications of the good or service subject to contract;

(ii) total price of the good or service including all the taxes, calculation method of the price if the type of the price does not allow a prior calculation, all the transportation, delivery and similar additional charges, if any, along with the information that additional charges could be applicable if such charges cannot be calculated in advance;

(iii) if there is a right for withdrawal, terms for using such right, period, procedure thereof and information on the transporter which will be assigned by the seller for the return of the related good or service;

(iv) if no withdrawal right is applicable, information on the inability of the consumer to benefit from the withdrawal right or on which conditions such withdrawal right will be lost.

If the distance selling contract is established via Internet, the following pre-information has to be indicated openly and in an understandable form before the consumer submits its order:
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(i) whether there is any restriction for delivery; and

(ii) which payment tools shall be accepted.

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Consequently, while entering into a distance selling contract via Internet part of the pre-information stated above have to be separately indicated in an open and understandable form before the consumer performs its payment obligation and some of other pre-information shall be indicated in the same way before the consumer submits its order. Thus, it will be confirmed that the consumer has been informed about such minimum information and it accepted them.

If the distance selling contract is established via voice communication tool, some of the pre-information shall be provided just before the order has been submitted by the consumer whereas complete pre-information shall be provided in writing on delivery of the good or performance of the service at the latest:

The same pre-information required to be provided to consumers in a separate and open way before they are obliged to make a payment while they enter into distance selling contracts via Internet shall be provided while entering with them into any distance selling contract via voice communication tool just before the consumer places its order which has to be made within the same communication environment. Furthermore, a complete set of the pre-information given by law have to be sent off to the consumer in writing until the delivery of the goods or performance of the service at the latest.

Pre-information to be provided in an understandable and open form if the distance selling contract has been entered within an environment where information about the order is provided within a restricted area or time:

The same pre-information required to be provided to consumers in a separate and open way before they are obliged to make a payment while they enter into distance selling contracts via Internet shall be provided while entering with them into any distance selling contract within an environment where information about the order is provided within a restricted area or time just before the consumer places its order, which has to be made within the same communication environment. Additionally, the consumer has to be informed at the mentioned stage about the name or title of the seller or provider and its MERSIS number, if any. Pre-information required to be provided at the delivery of the good or performance of the service constitutes complete set of pre-information given by law as it is required for distance selling contracts established via voice communication tool.

If the distance selling contract has been established via voice communication tool or within an environment where information about the order is provided within a restricted area or time and the performance thereof is required immediately, pre-information required to be provided in an open and understandable way:

In this case, the consumer has to be informed only about the following:

(i) essential qualifications of the goods or service subject to contract;

(ii) name or title of the seller or provider and its MERSİS number, if any;

(iii) total price of the goods or service including all taxes, calculation method of the price if the type of the price does not allow a prior calculation, all the transportation, delivery and similar additional charges, if any, along with the information that additional charges could be applicable if such charges cannot be calculated in advance;

(iv) if no withdrawal right is applicable, information on the inability of the consumer to benefit from the withdrawal right or on which conditions such withdrawal right will be lost.

Pre-Information requires confirmation

Any seller or provider has to confirm that the consumer received the pre-information either through Internet, voice communication tool or within an environment where the order is placed within a restricted area or time in accordance with the used communication tool. Otherwise, it shall be deemed that no contract has been established.

Other obligations on Pre-Information

Just before the consumer approves the order, any seller or provider has to inform the consumer in an open and understandable form that the order shall be deemed a payment obligation. Otherwise, the order shall not be binding upon the consumer.

If the consumer is contacted by the seller or the provider by phone to establish a distance selling contract, the seller or provider has to disclose at the beginning of each conversation its identity, if it is acting in the name or on behalf of another person the identity thereof, and the commercial purpose of the conversation.

The information above constitutes the scope and pre-information provisions of the Regulation. Withdrawal right and other issues stipulated in the Regulation shall be subject of another article which will come out soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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