The Regulation on Distance Agreements (the "Regulation") has been amended by the amending regulation (the "Amending Regulation") which was published in the Official Gazette dated 23 August 2022 and numbered 31932. Most of the new provisions of the Amending Regulation has entered into force on 1 October 2022. Within the scope of the Amending Regulation, substantial amendments have been introduced regarding the provisions of (i) scope and definitions; (ii) consumer rights and obligations; (iii) prior notification; (iv) right of withdrawal; and (v) obligations of the seller, provider and intermediary service provider.
This Monthly Updates aims to briefly explain the Amending Regulation and highlight the novelties introduced therein.
Amendments on Scope and Definitions
With the Amending Regulation, the scope of the Regulation has been narrowed. Accordingly, non-subscription services, established via short messages and fully simultaneously executed value-added electronic communication services; donations under the Fundraising Law dated 27 November 2014 and numbered 2860, and value-added electronic communication services provided by public institutions have been excluded from the scope of the Regulation. s
The Amending Regulation has also introduced new definitions of "intermediary service providers" and "platform". "Intermediary Service Providers" 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 remote communication tools through the system created by self" and "Platform" 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".
Amendments on Consumer Rights and Obligations
According to the Amending Regulation, the consumer is obliged to bear the return costs not exceeding the delivery costs provided that the cost for returns with a certain carrier is specified in the Prior Notification. However, in case the goods are defective, the return cost cannot be claimed from the consumer. Upon the consumer's request, the return cost may be deducted from the amount to be repaid.
Amendments on Prior Notification
Pursuant to the Regulation, the consumer must be informed by the seller or the provider before the execution of a distance agreement (the "Prior Notification"). the Amending Regulation now also requires the intermediary service provider to include the name or title, MERSIS system number or tax identification number and contact information of itself in addition to the seller and provider in the Prior Notification, and solutions for complaints shall be notified to the consumer.
In light of these amendments, the burden of proof regarding the Prior Notification shall be on the intermediary service provider. The consumer shall be informed about the delivery or performance period and the return cost amount not exceeding the delivery cost, which party will cover this amount, and if it is returned with a carrier other than the one identified, the consumer will bear the return cost.
In the event of the distance agreement is established through the platform, the intermediary service provider is jointly and severally responsible with the seller or the provider for providing the Prior Notification to the customers, and in cases where the data entry is made by the intermediary service provider, the intermediary service provider shall be responsible for the deficiencies in the information and the accuracy of the data.
Amendments on the Right of Withdrawal
The Amending Regulation has excluded following agreements from the scope of the right of withdrawal:
- agreements regarding movables, which are required to be registered as per the Highway Traffic Code numbered 2918, and unmanned aerial vehicles, which are required to be registered;
- agreements for mobile phones, smart watches, tablets, and computers delivered to the consumer;
- agreements concluded in the live auction; and
- agreements regarding the goods, which mounted by the seller or authorized service, stated in the user manual and mounted in this way.
In other words, the consumers shall not be able to use the right of withdrawal in the abovementioned agreements.
Amendments on Obligations of Seller, Provider, and Intermediary Service Provider
The seller shall repay for the goods subject to the right of withdrawal within 14 days from the date of delivery of the goods to the carrier specified in the preliminary notification for return. In case of returning it with a carrier other than the one stipulated, it will start from the date the goods reach the seller. In the distance agreements established through the platform and where the collection of the price is mediated, the intermediary service provider is jointly and severally responsible with the seller for returning the payments to the consumer, except for the cases where the post-delivery price is transferred to the seller. The provider or seller must immediately inform the intermediary service provider that the consumer has exercised the right of withdrawal.
The intermediary service provider is obliged to establish an uninterrupted system that allows consumers to transmit and follow up (i) right of withdrawal, (ii) termination of the agreement, (iii) request for a refund, (iv) requests and complaints regarding delivery or performance, and other demands. The intermediary service provider is also obliged to keep the records of the consumer's transactions with the seller or providers for three years and present this information to the relevant institutions, organizations, and consumers upon request.
If the information about the return is not stated in the Preliminary Notification, the seller or the supplier shall bear the return cost. If the information regarding the return is not included in the distance contracts established through the platform or the said carrier does not have a branch in the consumer's location, the return costs shall be covered by the intermediary service provider.
Conclusion
As a result of the Amending Regulation, substantial amendments were made regarding the provisions on reimbursement to consumers. "Platform" and "Intermediary Service Provider" has been defined and the obligations of these providers were set forth by the Amending Regulation. Besides these amendments, provisions on consumer rights and obligations have been amended and eventually; the scope of the right of withdrawal is narrowed but the scope of the responsibilities of intermediary service providers is expanded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
