Turkish Courts’ Implementation Of Consumer Protection

Under Turkish law, consumer rights are mainly protected by, and the legal status of all the consumer-related transactions are stipulated in, Law No. 4077 on the Protection of Consumers (the "Consumer Protection Law"), which was enacted on 23 February 1995 and published in the Official Gazette on 8 March 1995. After enactment of the Consumer Protection Law in 1995, it received major amendments in 2003 in order to ensure a higher level of protection for consumers and to harmonize Turkish consumer protection legislation with that of the European Union.

The purpose of the Consumer Protection Law is stated under Article 1 that as "to take measures aimed at protecting the health, safety and economic interests of consumers in line with the public good, building consumer awareness, indemnifying losses incurred by consumers and protecting them against environmental hazards; to promote consumer initiatives aimed at protecting consumer interests and to encourage volunteer organizations aimed at devising consumer-related policies." Article 2 of the Consumer Protection Law provides that the law covers the subjects specified in Article 1, as well as all consumer-related transactions in the goods and services markets to which a consumer is a party. As far as the term "consumer" is concerned, pursuant to the definition given under Article 3, the consumer can either be a real person or a legal entity purchasing, using or benefiting from a good or service without having any profession-oriented (i.e commercial) purpose.

The second section of the Consumer Protection Law, which outlines protecting and informing the consumer, lays down the legal status as well as rights and obligations of both parties with respect to defective goods and services; unfair terms in consumer contracts; installment sales; time-share vacations; package tours; campaign sales; door-to-door sales; distance contracts; consumer credits; credit cards; periodicals; subscription agreements; warranty certificates; user guides; after sales services; commercial advertisements; and hazardous and dangerous goods and services. The Law’s other sections govern consumer organizations; legal proceedings-penalties; and miscellaneous provisions.

As mentioned above, the definition provided under Article 3 of the Consumer Protection Law with respect to "consumer" covers both real persons and legal entities. Accordingly, the wording of this Article may be interpreted so as to mean that even a joint stock corporation

can be entitled to benefit from the rights granted to the consumer. However, considering the first paragraph of Article 21 of the Turkish Commercial Code, which stipulates that all obligations of a merchant are commercial and further, the exception to this general rule is only for real person merchants, a joint stock corporation, a limited liability partnership or any other commercial entity in whatever nature is unable to enter into agreements having consumer-based character. In this regard, the Turkish Court of Appeals has generally ruled that trading companies, whether joint stock corporations or limited liability partnerships, can in no way be deemed within the scope of the Consumer Protection Law and, therefore not able to benefit from the rights granted to the consumers by such law. Therefore, "legal entities", which are referred to in Article 3 of the Consumer Protection Law are deemed to be charitable foundations and associations that are not entitled to conduct any commercial activities.

With the recent amendments made to the Consumer Protection Law in 2003, defective services are incorporated into the scope of the Law alongside the defective goods. A defective service is defined as "a service containing material, legal or economic deficiencies that influence the quality or the quantity that affects the quality specified in the advertisements or announcements made by the supplier, or established in the standards or technical regulations, or decrease or eliminate its value or the benefits expected from such service by the consumer". On the other hand, the definition given with regards to the consumer under Article 3 explicitly refers to the "purchasing", "using" or "benefiting from" by the consumer of a good or service. Given the above, in its established precedent, the Turkish Court of Appeals rules out any claim by the consumers based on "freelance contracts" (istisna sözleşmesi) saying that the services provided within the framework of a freelance contract are not to be considered as a "consumer transaction" to which the relevant provisions of the Consumer Protection Law can apply. For instance, a claim arising from a repair work provided by a service station to a vehicle is not subject to consumer protection legislation and, thus, such a lawsuit should be heard before the general tribunals and not consumer courts.

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.