The Regulation on Amending the Regulation on Distance Contracts Has Been Published

Contracts made without the simultaneous physical presence of the seller or supplier and the consumer by using remote communication tools within the framework of a system created for the remote marketing of goods or services are defined as distance contracts. Matters regarding these contracts are regulated in the Regulation on Distance Contracts (“Regulation”).

The Regulation on Amending the Regulation on Distance Contracts (“Amendment Regulation”) has been published in the Official Gazette dated 23.08.2022 and numbered 31932. The Amendment Regulation stipulates changes in intermediary service providers in distance contracts, the right to withdraw, and the obligation of preliminary notification. We hereby briefly summarize the amendments and the new provisions in the Amendment Regulation.

Amendments regarding the obligation to the preliminary notification:

The Amendment Regulation,

• First, the terms “Intermediary Service Providers” and “Platform” are defined in the definitions section.
• Included the compatibility of delivery and fulfillment period with the period promised in commercial advertisements and promotions, into the scope of the obligation of preliminary notification (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Included the issues of; information regarding the carrier specified by the seller for the withdrawal, the reimbursement in the case where this carrier is utilized, the party that will be covering the reimbursement, and the consumer’s liability to cover the reimbursement in the case where the withdrawal is done by a carrier that is not specified by the seller, within the scope of preliminary notification (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation). 
• Also added that in the cases where the distance contract is done through a platform, intermediary service providers will also be jointly liable for the preliminary notification as the seller and the supplier.
• Expanded upon the scope of the obligation of preliminary notification in the second section of the regulation and implemented the same obligation to the intermediary service provider in addition to the seller and the supplier (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Expanded upon the options for the form of the preliminary notification with the addition of the phrase “…or with a permanent data controller” to the formerly mandatory written form of the preliminary notification.

Amendments regarding the obligations of the seller and the supplier:

The Amendment Regulation,

• Set the start time of the liability of the consumer, in the cases where the consumer does the withdrawal through a carrier that had not been specified by the seller, as the date when the product was delivered to the seller. (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Stated that, in the cases where the consumer used the right to withdraw, the intermediary service provider was obligated to withdraw all payments, including the expenses regarding the delivery to the consumer if there were any, within the fourteen (14) days starting from the date the notice of the usage of the right to withdraw was delivered to the provider (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Deemed intermediary service provider responsible; in the cases where the consumer paid the price, resulting from a distance contract that the parties established through a platform, to the seller and the supplier, for the fulfillment of this obligation (excluding the cases where the consumer transferred the price to the seller or the supplier after they had supplied the services or goods) (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Deemed the institutions that are authorized to issue credit cards, within the scope of the Bank Cards and Credit Cards Law numbered 5464, obligated to add the amount transferred by the seller, supplier, and intermediary service provider to the card holder’s available limit in a single transaction and at the instance the payment reached them, in the cases where the consumer makes the payment through a credit card (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Stated that, in the cases where the consumer used the right to withdraw through a carrier that the seller had not specified earlier, and the seller had not stated the consumer’s liability to cover the reimbursement in the preliminary notification, the seller or the supplier should cover the said amount (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).

New provisions regarding the obligations of the intermediary service provider:

The Amendment Regulation,

• Deemed intermediary service providers are obligated to deliver the consumers’ demands and statements to the seller and suppliers immediately, to establish an adequate system that allows tracking these demands and statements, and to keep the said system continuously open.
• Held intermediary service providers responsible for preserving and (if requested) providing the transactions, for 3 years, as stated by the 20th article of the Regulation regarding the preservation of the records of the transactions between the consumer and the seller or the supplier.
• Declared that the intermediary service provider would be responsible for any consequences of non-fulfillment or improper fulfillment of the obligations in the contract resulting from the lack of compensation for any special offers, promotions, or discounts the intermediary service provider presented without the consent of the seller or the supplier.
• Declared that the intermediary service provider would be held responsible for the compatibility between the mandatory issues stated in the preliminary notification and the committed information presented in the advertisements and promotions on the platform.

Amendments regarding the right to withdraw:

The Amendment Regulation,

• Held the seller responsible for receiving from the consumer, the goods that the consumer requested to withdraw, without demanding any additional expenses in the cases where the carrier determined in the preliminary notification for the withdrawal did not have any branches near the area that the consumer resides at (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation). 
• Increased the 10-day period for the consumer’s delivery of the goods, which are the subject of the right to withdraw, to the seller or the supplier or to an authorized person, to 14 days (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation).
• Made the additions listed below to the first paragraph of article 15 of the Regulation and included the products listed below within the scope of the exceptions for the right to withdraw (This provision will take effect starting from 01.01.2024, contrary to the other provisions of the Amendment Regulation): 

– Contracts regarding movables that had to be registered and unmanned aerial vehicles that had to be recorded or registered, according to the Highway Traffic Law dated 13/10/1983, numbered 2918.

– Contracts regarding cell phones, smart watches, tablets, and computers that had been delivered to the consumer.

– Contracts that were formed by the process of auctioning.

– Contracts regarding goods that were mounted or installed by the seller or the authorized technical service, as specified in the guide on promotion and usage.

The amendments brought by the Amendment Regulation (except the provisions mentioned above) will enter into effect on 01.10.2022.

On 14.09.2022, Regulation on Amending the Regulation on the Amendment of the Regulation on Distance Contracts regarding the Amendment Regulation (“Second Amendment”) has been published on the Official Gazette. With the Second Amendment the effective date of the provision has changed. Please note that the effective dates in this article are revised according to the Second Amendment.

The Amendment Regulations (available only in Turkish) can be acquired through the link placed below.

https://www.resmigazete.gov.tr/eskiler/2022/08/20220823-2.htm

https://www.resmigazete.gov.tr/eskiler/2022/09/20220914-4.htm

Authors: Hatice Ekici Tağa, Öykü Su Sabancı