August 2022 – A recent amendment to Turkey's Regulation on Distance Contracts (the "Regulation") published in the Official Gazette on 23 August 2022 and numbered 31932 introduces a new, narrower definition of distance consumer contracts than under previous rules and imposes new obligations in such areas as the preliminary information required; the consumer's right of withdrawal; the obligations of the seller, provider, intermediary service provider and consumer; the performance of the contract; and the delivery and storage of information and burden of proof. The concepts of "intermediary service provider" and "platform" are newly introduced and defined. Most new provisions of the Regulation come into effect on 1 October 2022. In this article we summarise the main changes to distance consumer contracts in Turkey brought by the amendment.
The amendment narrows the scope of the Regulation and excludes contracts for non-subscription, value-added electronic communication services established through short messages and fully performed simultaneously; donations within the scope of Turkey's Law on Aid Collection; and value-added electronic communication services provided by public institutions.1
By adding the concepts of "intermediary service provider" and "platform" to the Regulation, the definition of the ancillary agreement has also been amended. These are summarised as follows:
- Ancillary contract —a contract relating to goods or services provided to a consumer in addition to the provision of goods or services subject to the contract by the seller, provider, intermediary service provider or a third-party in relation to a distance contract.
- Intermediary service provider—a real or legal person who mediates the establishment of a distance contract on behalf of the seller or provider by using or allowing the use of remote communication tools within the system (platform) it has created.
- Platform—the system created by the intermediary service provider to mediate the establishment of a distance contract, excluding the common public electronic platform where public services are provided from a single point.
Provisions on the obligations of intermediary service providers
Intermediary service providers are included among the sellers or providers obliged to provide preliminary information to consumers regarding the content of the goods/services and method of their delivery or provision in accordance with Turkish legislation. In cases where an intermediary service provider performs data entry in relation to a distance contract, the intermediary service provider is liable for any deficiencies in the mandatory elements required for the preliminary information and the accuracy of the data.
One of the most eye-catching amendments to the Regulation is that the liability of the intermediary service provider is determined jointly with the seller or provider. Accordingly, in cases where a distance contract is established through a platform, the intermediary service provider is jointly and severally liable for the provision of preliminary information to the consumer together with the seller or the provider and for the fulfilment of the obligations regarding the preliminary information method specified in the legislation—except for cases where the seller or provider carries out data entry on their own platforms. As explained below, similar joint liability also exists in case of exercising the right of withdrawal.
Changes in the scope and method of preliminary information
Information about the intermediary service provider is to be included as part of the mandatory content of the preliminary information.
The amended Regulation stipulates that the delivery and performance period included in the preliminary information must be compatible with the time period promised in commercial advertisements and promotions.
In cases where there is a right of withdrawal, in addition to information on the conditions, duration, the procedure for exercising this right and the carrier envisaged by the seller for the return, the Regulation requires (i) in case the goods are returned with this carrier, information on the amount of the return cost, not to exceed the delivery cost, and which party will cover this amount, and (ii) in case the goods are returned by a carrier other than the one envisaged, information on the consumer will cover the return cost to be included as part of the preliminary information.
In cases where the distance contract is established through voice communication or through a medium where information about the order is presented in a limited area or time, it is also possible to send the preliminary information by permanent data storage device.
With the amendment, the burden of proof regarding the provision of preliminary information has been placed on the intermediary service providers, together with the seller and the supplier.
Changes to the right of withdrawal
Intermediary service providers are also obliged, together with the seller or provider, to prove that the consumer has been informed about the right of withdrawal. In addition, the withdrawal notification can be made to the intermediary service provider in addition to the seller or provider. In order for withdrawal notification to be made to the intermediary service provider, the intermediary service provider is obliged to establish the necessary system on its platform and to immediately transmit the confirmation information to the consumer that the withdrawal declaration has been received by the intermediary service provider and the seller or provider.
Another change relates to the start date of the payment refund period. In cases where the goods are delivered to the consumer, the 14-day refund period starts on the date that the consumer delivers the goods to the carrier specified in the preliminary information form, or on the date the goods reach the seller, if the goods are delivered by a different carrier than the one specified in the preliminary information form.
Intermediary service providers will be jointly and severally liable with the seller for the return of payments to the consumer in case of withdrawal under a distance contract established through a platform and to mediate the refund. However, the same liability does not apply in cases where the refund is transferred to the seller.
In case the right of withdrawal is exercised before the delivery of the goods, the intermediary service provider is obliged to return all payments collected, including delivery costs of the goods, if any, within 14 days from the date on which the notification regarding the use of the right of withdrawal is received.
In case of collections on behalf of the seller or the provider in distance contracts established through a platform, the intermediary service provider will also be liable with the seller or the provider for the obligation to pay the consumer, except for cases where the price is transferred to the seller or the provider after the delivery of goods or performance of services to the consumer.
Exceptions to the right of withdrawal
Additions have been made to the exceptions to the right of withdrawal. Accordingly, the right of withdrawal cannot be exercised on the following:
- vehicles where registration is compulsory in accordance with Turkish Highway Traffic Law and unmanned aerial vehicles that have to be recorded or registered;
- mobile phones, smart watches, tablets and computers delivered to the consumer;
- goods purchased through auction in the form of a live auction; and
- goods that are installed or assembled from goods specified in the introduction and user manual by the seller or authorised service provider, to be installed or assembled by the seller or authorised person as specified in the promotion and user manual.
Obligations of the consumer
Consumers may be held liable for the cost of returns, provided that this is specified in the preliminary information form and does not exceed the delivery cost. However, if the goods received by the consumer are defective, the consumer is not liable for return costs.
From the date of the consumer's notification regarding the use of their right of withdrawal, the consumer is obliged to return the goods to the seller or supplier or the authorised person within 14 days (previously 10 days).
Provisions regarding the performance of the contract and delivery
For the sale of goods, the seller or supplier must fulfil their obligation within the agreed timeframe, and in any case within 30 days from the date of receipt of the order of the consumer. An exception to this is the delivery time for goods prepared in line with a specific consumer request or customisation, which may be longer than 30 days.
Retention of information and the burden of proof
The intermediary service provider is obliged to keep records of transactions made with sellers or suppliers for three years and to provide this information to the relevant institutions, organisations and consumers if requested. However, if a subscription agreement is established on a common public electronic platform where public services are offered from a single point, the responsibility for keeping records and providing information rests with the seller or provider.
The new Regulation takes effect on 1 October 2022, with the exception of the provisions relating to (i) return procedure of the goods and the obligations of the consumers in cases where the consumers have the right of withdrawal, (ii) the obligations brought to the intermediary service providers regarding the right of withdrawal, and (iii) the contract types added to the exceptions of the right of withdrawal, which will enter into force on 1 January 2024.
1. SMS votes used in television game shows can be given as an example for non-subscription value-added electronic communication services established through short messages and fully performed simultaneously.
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.