While Turkey implements the Directive 1999/5/EC on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity ("Directive 1999/5/EC") since May 11, 2003, through legislation of its Regulation on Radio and Telecommunication Terminal Equipment, it did not follow the new Directive 2014/53/EU on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC ("Directive 2014/53/EU"). Regulation on Radio and Telecommunication Terminal Equipment of 2003 was repealed in 2007 and a new Regulation on Radio and Telecommunication Terminal Equipment (1999/5/EC) has entered into force by March 24, 2007 ("Regulation"). In other words, in the absence of any implantation legislation of Directive 2014/53/EU, the Regulation is the regulatory framework for manufacturing and marketing of radio and telecommunication equipment. On that note, the Information Technologies and Communication Authority ("ICTA") governs and enforces the Regulation.
Pursuant to Article 20 of the Regulation, administrative measures and penalties to be imposed for violation of the Regulation are set forth under (i) Law on Preparation and Enforcement of Technical Legislation on Products numbered 4703 ("Law No. 4703") and (ii) Electronic Communication Law numbered 5809 ("Law No. 5809"). That said, although the Regulation provides the technic requirements regarding manufacturing, operation and marketing of radio and telecommunications equipment, Law No. 4703 and Law No. 5809 act as such requirements' enforcers through the sanctions they set forth.
Law No. 5809
On that front, it should be mentioned that Law No. 5809 is the main legislation governing the electronic communication market and it has been drafted in accordance with the EU's Framework Directive1. As a principal, applicability of Law No. 5809 should be limited to the electronic communication service providers and network operators; however, it also contains certain rare dispositions (and sanctions) regarding non-operators, including radio device manufacturers (and importers/resellers.)
In terms of regulating radio equipment devices, it should be underlined that Law No. 5809 provides sanctions for two different types of circumstances, which are (i) unlicensed usage or misusage of the equipment and (ii) releasing of such equipment to the market. While the former relates to service providers/operators, the latter concerns device manufacturers and importers/resellers. Administrative sanctions and penalties provided for infringements regarding the latter are set forth in Articles 63(7) and 63(9) of Law No. 5809. Accordingly, the ICTA is entitled to impose a monetary fine from
(1) TRY 20,000 up to TRY 500,000 in the event of re-supplying to market or using the devices despite the order to dispose due to the non-compliance with relevant regulations; and
(2) TRY 20,000 up to TRY 1,500,000 in the event of changing electronic identity information, which provides device identification, and private information concerning subscriber's identity and contact information without a permission by the ICTA, and manufacturing, selling and any marketing of devices whose electronic identity information have been changed.
Law No. 4703
On the perspective of Law No. 4703, although it is not the direct implementation of Directive 1999/5/EC, Regulation on Market Surveillance and Control of Radio and Telecommunication Equipment ("Market Surveillance Regulation"), another secondary legislation enforced by the ICTA, whose legislation ground is both Law No. 5809 and Law No. 4703, should be taken into account as the legislative source for the sanctions provided under Law No. 4703 regarding the implementation of the Directive 1999/5/EC.
Under Article 14 of the Market Surveillance Regulation, the ICTA is entitled to impose sanctions such as issuing a warning, imposing administrative penalty, suspending the supply of the devices to the market temporarily, recalling the devices from the market, evaluating the technical documents of the devices or testing the samples, prohibiting the supply of the devices, suspending the audit and notifying the relevant authorities on the subject matter may against the radio equipment manufacturers for the following:
- Non-compliant devices in terms of signs and documents and administrative conditions foreseen in the technical regulations
- Failure to submit the technical documents of the device properly to ICTA on time by the manufacturer
- Failure to send the invoice to ICTA within 5 days, which was not submitted during the audit or determination of the illegal amendment of the international mobile equipment identity
- Non-existence of the device's warranty certificate
One or more of the penalties could be imposed depending on the qualification of the violation determined regarding the devices.
Pursuant to Article 15 of Market Surveillance Regulation, in case of distortion or forge or improper use of the Compliance Mark2 or documents issued consequent to compliance evaluation proceedings, the ICTA should file a criminal complaint for the violation. If the criminal proceeding concludes without a conviction, the ICTA shall impose an administrative penalty in the amount from TRY 14,163 up to TRY 106,224 (the range is subject to increase per each year).
As per Article 16 of the Market Surveillance Regulation, the ICTA is entitled to issue a warning, impose an administrative penalty in the amount from TRY 26,910 up to TRY 354,084 (the range is subject to increase per each year), prohibit the supply of such equipment and publish announcements on the case for the purposes of informing consumers, for non-compliance of radio devices, although which possess acceptable risk for human health and safety, with at least one of the conditions set forth below:
- Provisions regarding health and safety of users and other individuals, including fundamental aspects of safety goals, within the implementation regulation of Directive 73/23/EC,
- Protection conditions provided under implantation regulation of Directive 2004/108/EC
- Manufacturing and operation framework of radio equipment, which should ensure efficient usage of frequency spectrum and orbit for the purposes of avoiding interferences, and
- Other several conditions, if their imposition is deemed necessary by the ICTA, in alliance with their usage purpose, such as measures regarding accessibility, access to emergency and security services, compliant interface, protection of network, protection of users' personal data & privacy, prevention of fraud.
On the other hand, Article 17 of Market Surveillance Regulation requires that the ICTA is entitled to (i) impose an administrative penalty from TRY 26,910 up to TRY 354,084 (the range is subject to increase per each year) and prohibit the supply of such devices to the market, (ii) request the expenses of the tests realized in the lab from the manufacturer, (iii) inform the persons under risk by the manufacturer and (iv) recall the mistrustful products from the market if the case is occurrence of mistrustful devices which constitutes risk above the acceptable measures in terms of human health and safety in accordance with the lab results even though the compliance of the device with the technical regulation is documented. In addition, non-compliance with the ICTA's decision for recalling the devices may trigger an additional penalty From TRY 5,664 up to TRY 106,224 (the range is subject to increase per each year).
Subsequently, if the manufacturer fails to submit a solution plan or fails to comply with such a plan or the ICTA disapproves the plan, the ICTA shall order disposal of such devices partially or wholly.
Moreover, on Article 18 of Market Surveillance Regulation, in the cases of (i) non-compliance with the prohibition of supplying the devices and (ii) supplying devices to the market while being aware of that it is unsafe or failure to notify the ICTA regarding the measures taken for the purposes of prevention of the relevant device's risks, administrative penalties from TRY 5,664 up to TRY 106,224 and from TRY 2,832 up to TRY 56,653 should be imposed respectively (the ranges are subject to increase per each year).
Finally, as per Article 19 of Market Surveillance Regulation manufacturers infringing the orders of disposal of, should be sanctioned with an administrative penalty from TRY 5,664 up to TRY 106,224. Also, in such a case, the ICTA will be entitled to conduct the disposal by itself and the relevant expenses will subsequently be reimbursed by the manufacturer.
Besides, it should be noted that as per Article 60(6) of Law No. 5809, penalties provided under Law No. 4703, i.e. under the Market Surveillance Regulation, may be imposed by increasing the base penalty amount up to fourfold amount, in cases of non-compliance with technical and safety requirements and regulations published by the ICTA. Therefore, the ICTA is entitled to impose such administrative penalties introduced under Market Surveillance Regulation, after multiplying each base penalty amount by two to five.
As a conclusion, even though Turkish legislation on technical and safety standards of radio and telecommunication equipment is not up-to-date in terms of the relevant Directive 2014/53/EU, it consists of strict requirements, whose monetary sanctions are rising up to hundred thousands of US Dollars or Euros, in addition to orders of ceasing to supply, recalling and disposing.
1 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002
2 The mark proving that a product has become subject to all relevant compliance evaluation proceedings and is compliant with requirements provided under relevant technical regulations
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.