With the Regulation Amending the Distance Contracts Regulation [“Amendment Regulation”] published on the Official Gazette on 23 August 2022, many amendments were introduced to the Distance Contracts Regulation [the “Regulation”] published on the Official Gazette numbered 29188 and dated 27 November 2014. Many of these amendments aim to provide harmonisation with the amended Law no.6563 on the Regulation of Electronic Commerce [the “Law”] on 7 July 2022, and to regulate the liabilities of intermediary service providers in a comprehensive manner.
Most of the amendments will come into effect as of 1 October 2022, whereas the regulations regarding (i.) payment of the return expenses by the consumer; (ii.) return period of the good in case of withdrawal; (iii.) restriction on the right of withdrawal with regard to mobile phones, smart watches, tablets and computers; and (iv.) return liability of intermediary service providers, as further explained below, will enter into force as of 1 January 2024.
In this article, we will discuss the important provisions introduced by the Amendment Regulation.
Additions to Definitions
With the Amendment Regulation, the definitions of “intermediary service provider” and “platform” are provided. Accordingly, while an “intermediary service provider” is defined as “a real or legal person who mediates the establishment of a distance contract on behalf of the seller or supplier by using or making available the remote communication tools with the system he/she has created” a “platform” is defined as “the system created by the intermediary service provider to mediate the establishment of a distance contract, excluding the common public electronic platform where public services are offered from a single point”.
Liabilities for Intermediary Service Providers
Intermediary service providers are now subject to Regulation provisions which regulate the liabilities of the seller or the provider on preliminary notification. Accordingly, in addition to the seller and the provider, it will be compulsory that intermediary service providers to share their name or title, MERSIS number or tax identification number, full address, telephone number and similar contact details with the consumer. In addition, it is necessary to provide the consumer with a communication channel through which the consumer can submit their complaints, with other information regarding the delivery and performance in accordance with the promised time in payment, commercial advertisements, and promotions, as well as recommended solutions for frequent complaints. From now on, the intermediary service provider, together with the seller and the provider, will be jointly and severally liable for these preliminary notification obligations.
In addition to the obligation of the seller or the provider to establish the necessary system for the consumer to use the right of withdrawal, the intermediary service provider is now also liable for establishing this system. In this respect, if the consumer submits the declaration of withdrawal through the necessary channels, the intermediary service provider is liable to immediately convey to the consumer the confirmation that it has transmitted this declaration to the seller or provider.
In the event that the intermediary service provider collects payment on behalf of the seller or provider through the platform, and then the consumer exercises their right of withdrawal, the intermediary service provider will be jointly liable with the seller and the provider for the refund of the payment to the consumer, except for cases where the payment is transferred to the seller or provider after the delivery or performance of the goods or services to the consumer.
Right of Withdrawal and Exceptions
In accordance with the Regulation, if the consumer used their right of withdrawal, they were obliged to send the goods to the seller or supplier or an authorized person within 10 days from the date of this notification. The Amendment Regulation increases such return period to 14 days and introduces regulations that require the consumer to bear the expenses. In this respect, unless otherwise agreed, if the seller includes the carrier information and expenses in the preliminary notification, the consumer will be responsible for the expenses for return, provided that it does not exceed the delivery expense. However, if the goods delivered to the consumer are defective, it is still the seller’s obligation to cover the delivery expense.
One of the most important provisions introduced by the Amendment Regulation is the provision added to the exceptions of the consumer's right of withdrawal. As such, (i.) contracts for mobile phones, smart watches, tablets, and computers delivered to the consumer, (ii.) contracts for the installation or assembly of goods which are installed and assembled by the seller or the authorized service provider as specified in the introduction and user manual, (iii.) contracts concluded in the form of live auctions, and (iv.) contracts regarding movables whose registration is required according to the Highway Traffic Law and contracts for registered unmanned aerial vehicles are included to the exceptions. Therefore, unless otherwise agreed by the parties, the consumer will not be able to exercise their right of withdrawal in the above-mentioned distance contracts. In particular, the consumer will not be able to return the mobile phone, smart watch, tablet, and computer purchased through a distance contract, unless the good is defective.
The Amendment Regulation introduces many provisions that result in joint liability of intermediary service providers against the consumer, together with the seller and the provider. In order to fulfill these liabilities, intermediary service providers must align their platforms with the new provisions of the Regulation by 1 October 2022. On the other hand, the new rules restricting consumer’s right to return electronic products such as mobile phones and computers purchased on internet, and those requiring the consumer to pay the return expenses have already raised debates.
 With the new regulation published in the Official Gazette dated 14.9.2022 and numbered 31953, the effective dates of the referred articles of the Amendment Regulation have been postponed to 1.1.2024.
By Aziz Can Cengiz, Attorney at Law, and Beliz Boyalikli, Legal Intern, Guleryuz & Partners