Evaluations on the Regulation Amending the Regulation on Distance Contracts
The Regulation Amending the Regulation on Distance Contracts (“Regulation”) prepared by the Ministry of Trade was published in the Official Gazette dated 23 August 2022 and numbered 31932.
In summary, the Regulation introduces certain obligations for intermediary service providers who perform transactions on behalf of the seller and the supplier and the distance contracts they mediate, based on the fact that a large portion of distance contracts are made through platforms.
Definitions of Platform and Intermediary Service Provider
With the Regulation, the concepts of intermediary service provider and platform have been defined and these concepts have been added to the Regulation on Distance Contracts. The phrase “intermediary service provider” has been added after the phrase “provider” in Article 41-(I) of the Regulation on Distance Contracts. This amendment has been amended as “seller, provider and intermediary service provider” in every section where the phrase “seller, provider” is mentioned in the rest of the Regulation.
Intermediary Service Provider is defined as “the natural 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 distance communication tools with the system it has created.
Platform “Except for the common public electronic platform where public services are offered from a single point, it refers to the system created by the intermediary service provider to mediate the establishment of a distance contract. is defined as.
Contracts Not Covered by the Regulation
New types of contracts that are not covered by the Regulation have been added with the amendment. These are; Value-added electronic communication services that do not include subscription, which are established through short messages and fully performed simultaneously,
Donations within the scope of Law No. 2860 on Collection of Aid,
Contracts related to value-added electronic communication services offered by public institutions.
Prior Information Obligation in Distance Contracts
Article 5 of the Regulation on Distance Contracts, which regulates the obligation to inform the consumer, has been expanded with some additions. With these amendments, the consumer shall be informed by the seller, provider or intermediary service provider about the following issues before the distance contract is concluded. Within this scope
While it was obligatory to include only the name, title and, if available, MERSIS number of the seller or provider in the preliminary information before the amendment, it has been made obligatory to include the name, title, MERSIS number or tax identification number of the seller, provider and intermediary service provider with the amendment. Thus, with the amendment, MERSIS or tax identification number has become a mandatory element for preliminary information.
Prior to the amendment, only the seller and the provider were obliged to include in the preliminary information if there is contact information other than the open address, telephone number and similar contact information for the consumer to submit complaints, but with the amendment, the intermediary service provider is also held responsible for this obligation together with the seller and the provider.
With the amendment, it has become a mandatory element that the payment, delivery, performance period, delivery and other information regarding the performance, which were obligatory to be included in the preliminary information before the amendment, must be compatible with the period promised in commercial advertisements and promotions. Since many intermediary service providers use the delivery and performance period as a marketing strategy through commercial advertisements and promotions, they have an advantage over their competitors in the sector. With the amendment made by the Regulation, it is stipulated that intermediary service providers deliver their products within the period determined in their commercial advertisements and promotions, and it is ensured that the damages that consumers may encounter due to promises that are not always possible to be realised are prevented.
In cases where there is a right of withdrawal, which was mandatory to be included in the preliminary information before the amendment, it is seen that the information regarding the conditions for the exercise of this right, the duration, the procedure, the carrier envisaged by the seller for the return has been added with the amendment, as well as information regarding the carrier envisaged by the seller for the return, and the amount of the return cost not exceeding the delivery cost in case the goods are returned to this carrier, and by which party, and that the consumer will bear the return cost if the goods are returned to a carrier other than the one envisaged. Thus, the addressee of the return costs arising from the exercise of the right of withdrawal should be agreed in the distance contract.
Although the right to determine the consumer as one of the parties that may undertake this obligation is one of the innovations that will attract attention, it may create new grievances after the amendment.
Prior Information Method
As stated in the Regulation on Distance Contracts, the consumer must be informed by the seller or provider in writing or by means of a permanent data storage device in a clear, simple and readable manner, in an understandable language, in at least twelve-point font size, in accordance with the distance communication tool used.
With the amendment made by the Regulation, in cases where the distance contract is established through voice communication and the distance contract is established through a medium where the information regarding the order is presented in a limited area or time, while prior to the amendment, preliminary information was only made in writing, after the amendment, it was provided the opportunity to be made with a permanent data storage device.
With the amendment, the aforementioned permanent data storage device is defined in the Regulation on Distance Contracts as “Text message, electronic mail, internet, disc, CD, DVD, memory card and any other similar means or media that allows the information sent or received by the consumer to be recorded and copied unchanged in a way that allows the consumer to examine this information for a reasonable period of time in accordance with its purpose and to access this information exactly as it is.”.
In cases where distance contracts are established by means suitable for recording, such as telephone, and the information regarding the order is presented in a limited area or time, it is not required that the form of contract be in writing. In order for the proof of the terms of the contract and the details of the order to be possible with the tools or media defined as permanent data storage in the Regulation, it is required to ensure that the information given during the call is recorded and copied in a way that cannot be changed.
Responsibilities of the Intermediary Service Provider
With the amendment made by the Regulation, the intermediary service provider has also been included in the provisions on liability for prior notification regulated in Article 57 and Article 66 of the Regulation on Distance Contracts. Thus, in the event that the distance contract is established through the platform, the intermediary service provider is held jointly and severally liable with the seller or provider for the preliminary information.
In cases where the data entry is made by the intermediary service provider, the intermediary service provider is held responsible for the deficiencies in the mandatory issues determined for the preliminary information and the accuracy of the data. Thus, with the Regulation, intermediary service providers are considered to act as the data controller, which is defined under the Law on the Protection of Personal Data, and are held solely responsible.
Obligations of the Intermediary Service Provider
With the amendment made by the Regulation, intermediary service providers are obliged to establish a system enabling consumers to submit and follow up their requests and notifications and to keep this system open uninterruptedly.
The obligation to establish a system enabling consumers to submit and follow up their requests and notifications, and to keep this system open uninterruptedly will create a great responsibility for intermediary service providers within the scope of the Regulation.
When a distance contract is established through the platform, intermediary service providers are obliged to keep this system open for the duration of the rights and obligations arising from this contract. Therefore, cyber-attacks, pirate attacks, systemic problems that may occur on the platform may constitute a major problem for intermediary service providers as they will prevent the system from being kept open uninterruptedly.
In order to prevent possible damages that may occur, these force majeure situations should also be evaluated by intermediary service providers and necessary measures should be taken.
Consumers will be able to submit their requests regarding the following issues through this system to be created by the intermediary service provider, and intermediary service providers are also obliged to immediately notify the seller or provider of these requests and notifications
Notification of the exercise of the right of withdrawal, notification of termination of the contract,
Cost reimbursement,
Records regarding the transactions of consumers with the seller or provider may be related to requests and complaints regarding delivery or performance.
Intermediary service providers are held jointly and severally liable with the seller or provider for the provision and confirmation of the prior information and the proof of the prior information.
Intermediary service providers are held responsible for keeping records of the consumer’s transactions with the seller or providers for three years and providing this information to the relevant institutions and organisations and consumers upon request.
Intermediary service providers are held liable for each consumer transaction in which they cause the seller or provider to act contrary to Article 48 of the Law on the Protection of Consumers and the provisions of the Regulation on Distance Contracts due to their practices contrary to the intermediary service agreement with the seller or provider.
In the event that the intermediary service providers collect the price on behalf of the seller or provider, from the date of receipt of the notification regarding the exercise of the right of withdrawal, from the date of receipt of the termination notice in case the consumer exercises the right to terminate the contract, from the date of receipt of the termination notice in case the consumer exercises the right of withdrawal after the delivery of the goods, If the price has not been transferred to the seller, the seller or provider is held jointly and severally liable for the return of the goods or service price and delivery costs to the consumer, together with the seller or provider, within fourteen days from the date of delivery of the goods subject to the right of withdrawal to the carrier foreseen for return, or from the date it reaches the seller if it is returned by a carrier other than the one foreseen for return.
Intermediary service providers are held jointly and severally liable with the seller or provider for the non-performance of the contract caused by the failure to meet the campaign and similar commitments in the distance contracts that they mediate regarding the campaign, promotional or discounted sales organised without the approval of the seller or provider.
Intermediary service providers are also held responsible for the compatibility and proof of the information promised in the advertisements and promotions made through the platform regarding the goods or services offered for sale and the issues that must be included in the preliminary information.
Exercise of the Right of Withdrawal
With the amendment made by the Regulation, in distance contracts established through the platform, the intermediary service provider is held responsible for establishing the necessary system on the platform for the consumer to fill in the Sample Withdrawal Form in the annex of the Distance Contracts Regulation or to send the withdrawal declaration, and to immediately notify the consumer of the confirmation that the withdrawal declarations submitted by the consumers have reached him and the seller or provider.
Obligations of the Seller and Provider in the Exercise of the Right of Withdrawal
Article 12 of the Regulation on Distance Contracts regulates the obligations of the seller and the provider in the exercise of the right of withdrawal. With the Regulation, all provisions of this article have been amended and new provisions have been added. With these amendments;
Before the amendment, the seller or provider was obliged to refund all payments collected, including the costs of delivery of the goods to the consumer, if any, within fourteen days from the date of receipt of the notification that the consumer has exercised the right of withdrawal, but after the amendment, the seller is obliged to refund all payments collected, including the costs of delivery of the goods to the consumer, if any, within fourteen days from the date of delivery of the goods subject to the right of withdrawal to the carrier specified in the preliminary notification for return.
However, if the consumer returns the goods by a carrier other than the one foreseen for the return, the said obligation starts from the date the goods reach the seller.
In distance contracts established through the platform and where the collection of the price is mediated, the intermediary service provider is held jointly and severally responsible with the seller for the return of the specified payments to the consumer, except in the case where the price is transferred to the seller after delivery.
In the event that the right of withdrawal is exercised before the delivery of the goods, the seller and the intermediary service provider in distance contracts established through the platform and in which the collection of the price is mediated, are obliged to return all payments collected, including the costs of delivery of the goods to the consumer, if any, within fourteen days from the date of receipt of the notification of the exercise of the right of withdrawal, which was not previously included in the Distance Contracts Regulation, with the provision added with Article 122 of the Regulation.
With the provision, which was not previously included in the Distance Contracts Regulation and added by Article 123 of the Regulation, in the event that the right of withdrawal is exercised in contracts regarding the performance of services, the provider and the intermediary service provider in distance contracts established through the platform and where the collection of the price is mediated, are obliged to refund all payments collected within fourteen days from the date of receipt of the notification regarding the exercise of the right of withdrawal.
In the event that the payment is made by credit card, the card issuers within the scope of the Bank Cards and Credit Cards Law No. 5464 are obliged to add the amount transferred by the seller, provider or intermediary service provider to the cardholder’s available limit at once upon receipt.
Prior to the amendment, in the exercise of the right of withdrawal, if the goods were sent back via the carrier specified by the seller for return, the consumer could not be held responsible for the costs related to the return, and in cases where the seller did not specify any carrier for return in the preliminary information, the consumer could not be charged any amount related to the return costs.
With the amendment, it is now possible to agree on the return costs arising from the exercise of the right of withdrawal in the distance contract. However, in the event that the preliminary information does not include information on the amount of the return costs incurred in the exercise of the right of withdrawal and which party will bear the return costs, and that the consumer will bear the return costs if the goods are returned by a carrier other than the one envisaged, the seller or provider is obliged to cover the said costs.
In the event that the carrier specified in the preliminary information does not have a branch in the location where the consumer is located, the seller is obliged to ensure that the goods to be returned are collected from the consumer without any additional cost. In the contracts established through the platform, if the failure to include this information in the preliminary information or the fact that the specified carrier does not have a branch in the location of the consumer is caused by the intermediary service provider, the intermediary service provider is obliged to meet the costs and obligations in question.
With the provision added by Article 126 of the Regulation, which was not previously included in the Distance Contracts Regulation, the seller or provider is obliged to immediately deliver to the intermediary service provider the notification that the consumer has exercised the right of withdrawal in distance contracts established through the platform.
Obligations of the Consumer
In Article 13 of the Regulation on Distance Contracts, which regulates the obligations of the consumer, the period for the consumer to send the goods to the seller, provided that the consumer is fully and accurately informed, was regulated as 10 days from the date of the withdrawal notification, but it has been increased to 14 days.
With the provision, which was not previously included in the Distance Contracts Regulation and added by Article 133 of the Regulation, the consumer is obliged to cover the return costs, not exceeding the delivery costs, if it is agreed in the preliminary information and the amount of the return by the carrier provided by the seller is included. However, if the goods delivered to the consumer are defective, the consumer will not be held responsible for the return costs.
If the consumer requests, the return costs may be deducted from the cost of the goods or services to be returned to the consumer and the delivery costs.
While the consumer has always tended to be protected by the Turkish legislation, it can be said that the relevant provision aims to instil awareness in consumers. At this point, if the conditions regarding the return are not examined in the distance sales contracts and preliminary information forms, which are frequently marked by consumers without being read, unexpected costs may be encountered.
Contracts where the consumer cannot exercise the right of withdrawal
With the amendment, new contracts have been added to the contracts that the consumer cannot use the right of withdrawal specified in Article 15 of the Regulation on Distance Contracts. These are
Contracts regarding the movables that are obliged to be registered according to the Highway Traffic Law dated 13101983 and numbered 2918 and unmanned aerial vehicles that are obliged to be registered or registered.
Contracts regarding mobile phones, smart watches, tablets and computers delivered to the consumer.
Contracts concluded through auction in the form of live auction. Contracts regarding the goods (refrigerators, washing machines, etc.) that are installed or assembled from the goods specified in the introduction and user manual to be installed or assembled by the seller or authorised service.
It has been decided that it will not be possible for consumers to exercise their right of withdrawal without justification and without paying penal clauses for distance contracts related to these issues. Thus, it is ensured to prevent practices such as consumers returning these products easily due to the free right of withdrawal.
Performance of the Contract and Delivery
In contracts for goods prepared in line with the wishes or personal needs of consumers, the maximum delivery time obligation of 30 days can be determined for longer periods with the information and approval of the consumer.
Enforcement
This Regulation, the last sentence of the fourth paragraph of Article 12 regulating the obligations of the seller and the provider amended by Article 9 of the Regulation shall enter into force on 01012023; the other provisions shall enter into force on 01102022.