Several amendments were made to the Law on the Protection of the Consumer (the “Law”) on April 1, 2022, most of which will come into force on October 1, 2022. We have evaluated the amendments made to the Law comprehensively.[1]
In line with those amendments, substantial additions and amendments were also made in the Regulation on Distance Contracts (the “Regulation”) as published in the Official Gazette dated August 23, 2022 and numbered 31932. Many of the amendments to the Regulation are also planned to enter into force on October 1, 2022 (except for otherwise specified here). It is of great importance for intermediary service providers to take quick action in order to comply with the Law and the Regulation.
The main changes brought to the Regulation are as follows:
1. Intermediary Service Providers by Definition and Obligations Applicable to Intermediary Service Providers
Real or legal persons who mediate establishment of a distance contract on behalf of a seller or service provider by using remote communication tools or making the same available with the system they have created are defined as intermediary service providers. Numerous regulations have been made for intermediary service providers and for the systems (platforms) created by them to mediate formation of distance contracts:
- If the distance contract is formed on the platform of the intermediary service provider, the relevant intermediary service providers will be severally responsible with sellers or service providers for the provision of correct and complete preliminary information related to distance contracts, including but not limited to information about the right of withdrawal. In certain circumstances, the intermediary service provider may solely be responsible for the data it enters. It is also important to note that preliminary information to be provided to consumers shall be in line with advertisements and promotions made on the platform by the intermediary service provider and the intermediary service provider may also be held liable for any breaches to this rule even if the preliminary information is provided to consumers is prepared by the seller or the service provider.
- Intermediary service providers shall establish an extensive system addressing consumers on their platforms. Through such a system, the consumers shall be enabled to (i) send notifications regarding the exercise of their right of withdrawal, (ii) send termination of the contract notifications, (iii) submit refund requests, (iv) request for their transactional records (e.g., copies of their distance contracts) made in the last 3 years, and (v) submit their other requests and complaints regarding the delivery or performance. The system shall be maintained open without any interruptions. In case of breach of this obligation, an administrative fine of 1 million Turkish Liras may be imposed on the relevant intermediary service provider.
- Intermediary service providers must promptly convey consumer requests and notifications to the relevant seller or service provider. Therefore, being in synchronous communication is quite important for intermediary service providers and the sellers/service providers. Furthermore, regarding subcontracts formed on its own platform, intermediary service providers shall also be in a position to provide information to third parties which are parties to the relevant subcontracts. This obligation becomes especially important for the subcontracts that will be terminated together with the main contract due to the exercise of the right of withdrawal.
- Intermediary service providers will have many obligations regarding return of sale prices for goods or services that are subject to the right of withdrawal or to the termination of the contract, if, once again, the distance contract is established through the platform of the relevant intermediary service providers and the intermediary service provider also acts as an intermediary in the collection of the sale prices. In terms of the transportation expenses for return of any good, the intermediary service providers may be solely responsible from return of such expenses if consumers are insufficiently informed about which carrier should be preferred for return of the relevant good or who will bear the costs of the carrier etc. or if the intermediary service provider is directly responsible for the preferred not to have a branch in the relevant consumer's location. In addition to all of the above, the intermediary service providers are severally responsible with the seller or service provider for the return of the excess amounts that the consumers have to pay due to automatically selected options that create an additional payment obligation without the explicit consent of the relevant consumer in the transactions made through the platform. Among these obligations, obligations related to sale price return after the delivery of goods and carrier expenses will come into force on January 1, 2024.
- Intermediary service providers shall also inform consumers in cases where performance of the goods or services purchased by the relevant consumers becomes impossible if the intermediary service providers collect the sale price on behalf of the respective seller or the service provider.
- Intermediary service providers shall keep records of the transactions for 3 years between the consumers and the seller or service providers, which are conducted through the platform, and share such information with the relevant institutions and organizations and consumers if requested.
- If intermediary service providers cause a violation of the Law or the Regulation due to its practices contrary to the intermediation service agreement, it will be responsible for such unlawful transactions. Moreover, as explicitly stated, if the intermediary service provider organizes sales with campaigns, promotions, or discounts without the approval of the seller or service provider, it will be solely responsible against the consumer for not meeting the campaign requirements or similar commitments.
2. New Obligations Imposed on Sellers and Service Providers
In order to prevent problems arising from the practice, several new obligations have been imposed on sellers and service providers. Among other obligations, the following shall be considered in this respect:
- The scope of preliminary information to be provided to consumers has been expanded considering that the intermediary service provider can also be a contact point and in order to bring clarifications to the obligation. On the other hand, apart from others, new obligations to provide further information about the right of withdrawal will come into force on January 1, 2024 in this respect.
- Some arrangements have also been made about return of the payments when the right of withdrawal is exercised but these new regulations will come into force on January 1, 2024. In line with the previous regulation, in case the right of withdrawal is exercised before the delivery of the goods or in all contracts regarding the performance of services in general, the refund must be made within 14 days from the date of receipt of the withdrawal notification. However, after January 1, 2024, if the goods have been delivered to the consumer, the beginning of the return period will vary depending on which carrier is selected for the return of goods. If the goods are delivered to the carrier specified in the preliminary information, 14-day period will start from the date of delivery to the relevant carrier. If the goods are delivered to a different carrier for return, then the 14-day period will start from the date the goods reach the seller.
- Again, after January 1, 2024, if it is clearly stated in the preliminary information and if the return cost is identified when a certain carrier is used, the parties may agree that consumers bear transportation expenses for return of goods except for the cases where the return of a good is caused by the product being defective. In these cases, if the consumer requests, the return costs can be deducted from the refund.
- If the seller or service provider receives the withdrawal notice for the contracts formed through the intermediary service provider’s platform, the intermediary service provider should be informed immediately. Although this new obligation will also come into force as of January 1, 2024, considering that intermediary service providers will be liable for return of sale prices before the relevant goods are delivered as of October 1, 2022, the intermediary service providers are advised that a similar measure be contractually regulated against sellers and service providers.
3. Important Matters for Consumers’ Consideration
In accordance with the current regulation, consumers shall return the goods for which they want to use the right of withdrawal to the seller, service provider or their authorized representatives within 10 days. This 10-day period will extend to 14 days as of January 1, 2024.
Furthermore, the scope of the exceptions to the right of withdrawal has been expanded. In addition to the exceptions foreseen in the previous regulation, the right of withdrawal will not be used for the following contracts: (i) contracts for movables required to be registered according to the Highway Traffic Law and for drones required to be recorded or registered, (ii) contracts for mobile phones, smart watches, tablets and computers already delivered to the relevant consumers, (iii) contracts concluded through live auctions, and (iv) contracts for installed products whose instructions or user manuals state that installation or assembly of the relevant good will be made by the seller or an authorized service provider.
Lastly, non-subscription and value-added electronic communication services established via short messages and fully performed simultaneously, donations under the Law on Charity Collection and value-added electronic communication services offered by public institutions are excluded from the scope of the Regulation.
Notes
We can say that starting from October 1, 2022, intermediary service providers will also be an important contact point within the scope of the distance contracts. In this respect, it will be viable for consumers to submit their requests also to intermediary service providers. Consequently, the protection provided to consumers is increased as detailed first in the Law and then in the Regulation.
It is necessary especially for intermediary service providers to take the relevant steps required by the Regulation and to complete the harmonization processes in order to integrate the systems into the Regulation.
Special thanks to Ahmet Yılmaz for her contributions.