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In brief

The Regulation on the Amendment of the Distance Sales Regulation (“Regulation“) was published in the Official Gazette on 23 August 2022.

Save for the provision regarding the obligation of the card issuer on refunds of the amount transferred by the seller, service provider or intermediary service provider, which will enter into force on 1 January 2023, the amendments came into force on 1 October 2022.


Recent Development

The Ministry of Trade has made significant amendments to the provisions regarding the scope of the Distance Sales Regulation, the obligation of prior notification, the right of withdrawal, and the obligations of the seller, service provider and consumer. With the amendments, the Distance Sales Regulation has been aligned with the amendments introduced to the Consumer Protection Law on 1 April 2022.

The Regulation is available online here (in Turkish).

What’s New?

The main amendments envisaged in the Regulation are as follows:

Scope

  • Value-added electronic communication services established via short messages and fully performed simultaneously on a non-subscription basis, donations collected under the Law on Aid Collection and value-added electronic communication services offered by public institutions have been excluded from the scope of the Distance Sales Regulation.
  • With the Regulation, intermediary service providers that mediate the establishment of distance contracts on behalf of the seller or the service provider via remote communication tools and the platforms they use are also defined and additional obligations are introduced.

Preliminary information

  • The name or title, MERSIS number or tax identification number, contact information and solutions for complaints of the intermediary service provider must also be provided to the consumer as part of the preliminary information.
  • The consumer must be informed on the delivery or performance period, the return costs, which must not exceed the delivery cost, the party to cover this amount and the consumer’s obligation to cover the return costs if the goods are returned with a carrier other than the one specified. The intermediary service provider must now provide proof regarding the fulfillment of the obligation to inform.
  • If the distance contract is established through a platform, the intermediary service provider is individually and severally responsible for providing the preliminary information. If the intermediary service provider makes the data entry, it will be responsible for deficiencies in the information and the accuracy of the data.

Right of withdrawal

  • Consumers will be able to notify the intermediary service provider on the execution of the right of withdrawal.
  • In distance contracts established over a platform, the intermediary service provider has to provide the necessary system on the platform to enable consumers to fill in the form in the annex of the Regulation or send the notification of withdrawal. Intermediary service providers must immediately notify the consumer on the receipt of the withdrawal request.
  • The following contracts have been excluded from the scope of the right of withdrawal: (i) contracts on movables, which must be registered according to the Highway Traffic Law, and unmanned aerial vehicles subject to registry requirement; (ii) contracts on mobile phones, smart watches, tablets and computers delivered to the consumer; (iii) contracts concluded by way of live auction; and (iv) contracts on the goods that have been installed or assembled by the seller or authorized services in accordance with the advertisements and user manual. Therefore, consumers will not be able to exercise the right of withdrawal in the aforementioned contracts.

Obligations of the seller, service provider and intermediary service provider

  • The seller’s obligation to refund the payment of the goods subject to the right of withdrawal within 14 days will start (i) on the date the goods are delivered to the carrier specified in the preliminary information, or (ii) on the date the goods are delivered to the seller if the consumer consigns the goods to a carrier other than the one specified in the preliminary information.
  • The intermediary service provider is individually and severally responsible with the seller for refunding the consumer, except in cases where the distance contracts were established through a platform and the payment was transferred to the seller by the intermediary service provider upon delivery.
  • The refund responsibility of the intermediary service provider that collects the payments on behalf of the seller or the service provider starts 14 days from the following dates:
  1. The date on which the notification regarding the use of the right of withdrawal is received, if the consumer exercises the right of withdrawal before the delivery of the goods or the performance of the service
  2. The date on which the goods subject to the right of withdrawal are delivered to the specified carrier for return, or the date on which the goods are delivered to the seller if they are returned with a carrier other than the one specified. This is provided that the payment was not transferred to the seller on the date the consumer exercised the right of withdrawal after the delivery of the goods.
  3. The date on which the notification regarding the use of the right of withdrawal is received, if the consumer exercises the right to terminate the contract due to failure in the delivery or performance.
  • Except for cases where the payment is transferred to the seller or service provider after the delivery or performance of the goods or services, the intermediary service provider that collects the payment on behalf of the seller or the service provider based on distance contracts established via a platform is individually and severally responsible with the seller or service provider for fulfilling the obligation to refund. If the payment is made by credit card, the card-issuing institution must return the amount transferred by the seller, service provider or intermediary service provider to the cardholder’s card immediately.
  • If the information on the return is not provided in the preliminary information, the return cost will be borne by the seller or service provider. If the information on the return is not provided in the distance contracts established through a platform, or the specified carrier for returns does not have a branch at the consumer’s location due to a fault attributable to the intermediary service provider, the return costs will be borne by the intermediary service provider.
  • For distance contracts established through a platform, the seller or service provider must immediately notify the intermediary service provider regarding the exercise of the right of withdrawal.
  • The intermediary service provider must establish an uninterrupted system that enables the consumers to make notifications and track requests regarding (i) the right of withdrawal, (ii) termination of the contract, (iii) refund, and (iv) claims and complaints regarding the delivery or performance and other requests.
  • The intermediary service provider must keep records of the consumer’s transactions with the seller or service providers for three years and provide this information to authorized institutions, organizations and consumers upon request.
  • The intermediary service provider is responsible for (i) the fulfillment of the commitments on the campaigns, promotions or discounted sales it organizes without the approval of the seller or the provider, and (ii) the compatibility between the information in the advertisements and promotions made on the platform and the preliminary information.

Consumers’ rights and obligations

  • Consumers are obliged to cover the return costs not exceeding the delivery costs, provided that the cost for returns with a certain carrier is specified in the preliminary information. If the goods are defective, the return cost cannot be claimed from the consumer. The return cost can be deducted from the amount of the refund to be made to the consumer upon the consumer’s request.

Conclusion

As per the Regulation, intermediary service providers’ responsibilities have been expanded, the scope of the right of withdrawal has been narrowed down and important amendments were introduced to refunds to be made to consumers. All stakeholders must ensure compliance with the amendments by the effective date.

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Author

Can Sozer, Partner in Esin Attorney Partnership, Istanbul office.

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