Legal Memorandum on the Amendment to the Regulation on Distance Contracts

Author

Selinsu KÜLÜK

Selinsu KÜLÜK

Attorney's page
distance contracts

Various amendments were made with the “Regulation Amending the Regulation on Distance Contracts” that has published in the Official Gazette on 23/08/2022 on the “Regulation on Distance Contracts” (“Regulation”) published in the Official Gazette dated 27/11/2014 and numbered 29188. In this information note, these important changes, especially regarding distance sales made over the internet, will be examined.

Intermediary Service Provider and Platform Concepts

Today, perhaps the most widely used shopping method has become transactions made over platforms, which are systems created by intermediary service providers to mediate the establishment of distance contracts. As a matter of fact, since the Regulation dated 2014 could not sufficiently clarify this current situation, it has become necessary to make some changes in order to minimize consumer victimization, taking into account the current shopping habits of Turkey.

When the “Regulation on Amending the Regulation on Distance Contracts” is examined, it is seen that the concepts of intermediary service provider and platform, which were not regulated before in the Regulation, are defined within the changes. Also, with the new amendments, it is stated that many contact information such as the name, title, MERSIS number or tax identification number of the intermediary service provider must be accessible to the consumer.

Changes Made in the Scope of Prior Information

With the new amendments made, important changes were made in Article 5 of the regulation titled Preliminary Information, and it was stated that the responsibility of informing the consumer on many issues, especially the right of withdrawal, also covers the intermediary service provider. Accordingly, the responsibilities of the intermediary service providers that make up this platform for purchases made from various platforms over the internet within the scope of preliminary information are as follows:

“ARTICLE 3- Subparagraphs (b), (c), (ç), (f) and (g) of the first paragraph of Article 5 of the same Regulation have been amended as follows; The phrase “to the provider” in the sixth paragraph of the same article has been changed to “to the provider and the intermediary service provider” and the following paragraph has been added to the same article.

“b) Name or title, MERSIS number or tax identification number of the seller or provider and intermediary service provider,

c) The full address, telephone number and similar contact information that allows the consumer to contact the seller or provider and the intermediary service provider quickly, and, if any, the identity and address of the person acting on behalf of or on behalf of the seller or provider,

ç) If the seller or the provider and the intermediary service provider have different contact information than those specified in subparagraph (c), for the consumer to submit their complaints, information regarding these,

“f) Delivery or performance time compatible with the promised time in payment, commercial advertisements and promotions, other information regarding delivery and performance, and commitments, if any, and resolution methods of the seller or supplier and intermediary service provider regarding complaints,

g) In cases where there is a right of withdrawal, the terms of use of this right, the duration, the procedure, the information regarding the carrier that the seller has envisaged for the return, and the return cost amount not to exceed the delivery cost in case the goods are returned with this carrier and which party will be covered, and the return cost in case of return with a carrier other than the one stipulated. information that will be covered by the consumer,”

In addition to this, it should be noted that within the scope of the changes made, the intermediary service provider has been held jointly and severally liable with the seller or the provider. In cases where data entry is made by the intermediary service provider, it has been clearly stated that the intermediary service provider is responsible for the deficiencies in mandatory matters and the accuracy of the data.

Amendments Made in the Regulation Regarding the Right of Withdrawal

Significant changes have also been made about the consumer’s right of withdrawal in distance sales, the method and duration of use of this right, and the refund procedures to be made in case the consumer uses the right of withdrawal.

As we mentioned above, the intermediary service provider, which is under the obligation to inform the consumer about the right and scope of withdrawal, now also must establishes the necessary systems on the platform for the consumer’s right of withdrawal, and confirms that the withdrawal statements submitted by the consumers have reached them, the seller or the provider.

While there was no clarity as to when the refund will be made in the event that the consumer uses his right of withdrawal within the scope of the Regulation, amendments have been made on the Amendment of the Regulation on Distance Contracts. It has been regulated that within fourteen days from  the date of receipt of the relevant notification, he is obliged to return all the payments collected, including the delivery costs of the goods to the consumer, only if the withdrawal notification is made before the delivery of the goods.

In this context, how the refund will be made in case of withdrawal from the distance contract after the delivery of the goods is also specified in Article 9 of the Regulation on Amending the Regulation on Distance Contracts:

“…(5) In the exercise of the right of withdrawal, the information regarding the carrier that the seller has envisaged for the return, the return cost amount determined not to exceed the delivery cost in case of the return of the goods with this carrier, and the information on which party will be covered, and the consumer will cover the return cost in case of the return of the goods with a carrier other than the stipulated one. In case the preliminary information is not included within the scope of subparagraph (g) of the first paragraph of the first article, the said cost shall be borne by the seller or the supplier. In the event that the carrier specified in the preliminary notification for the return does not have a branch in the consumer’s location, the seller is obliged to ensure that the goods to be returned are received from the consumer without demanding any additional costs. In distance contracts established over the platform, if this information is not included in the preliminary information within the scope of subparagraph (g) of the first paragraph of Article 5, or if the said carrier does not have a branch in the consumer’s location, the said costs and obligations must be borne by the intermediary service provider…”

Exceptions to the Right of Withdrawal: Technological Devices and Installed Goods

With the amendment made, the agreements regarding the mobile phones, smart watches, tablets and computers delivered to the consumer and the agreements regarding the goods installed or assembled have been added to the exceptions to the right of withdrawal specified in the regulation.

Effective Dates

Article 9/4 of the Regulation on Amendments to the Regulation on Distance Contracts that will enter into force on January 1,2023.  And the other provisions will enter into force on October 1, 2022.

Conclusion

It is clear that these regulations made are aimed at protecting consumers who shop on various platforms on the Internet.

You can contact us here for detailed information on the subject.

You can get detailed information about the work of our office in the fields of Consumer Law and Contracts Law on our website.

Selinsu KÜLÜK (Attorney At Law)

Uçar Law & Consultancy Office

Diclaimer:

This article is prepared by Uçar Law & Consultancy Office for information purposes only, and the information and visual materials contained in it cannot be used, reproduced, published, transmitted to a third party or translated without prior written permission from us. This legal memorandum is not a comment or legal opinion and was prepared on the publication date and our attorney’s office is not responsible for its failure to
update continuously.”

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