NEW AMENDMENTS INTRODUCED BY THE REGULATION ON AMENDING THE REGULATION ON DISTANCE CONTRACTS
With the entry into force of the The Regulation on Amending the Regulation on Distance Contracts (''Amendment Regulation'') published in the Official Gazette dated 23.08.2022 and numbered 31932, there have been significant changes on the Regulation on Distance Contracts dated 27.01.2014 (''Regulation''). New regulations have been introduced on many issues such as the right of withdrawal, return costs, obligations of intermediary service providers and delivery of goods.
The Regulation on the Amendment to the Regulation on the Amendment to the Regulation on Distance Contracts published in Official Gazette dated 14.09.2022 and numbered 31953 also introduced changes to the effective dates of the amendments in the Regulation. With this last amendment it has been decided that certain amendments will enter into force on 01.01.2024, while the remaining amendments will enter into force on 01.10.2022. The significant amendments introduced by the Amendment Regulation are listed below based on their effective dates.
AMENDMENTS EFFECTIVE AS OF OCTOBER 1, 2022
Scope: Value-added electronic communication services that are established through short message service and do not include full simultaneous subscription, as well as donations within the scope of the Law on Collection of Aid dated 23/6/1983 and numbered 2860, and contracts regarding value-added electronic communication services offered by public institutions, are excluded from the scope of the Regulation.
Definitions: The definition of ancillary agreement has been expanded by defining intermediary service provider and platform.
"Intermediary service provider", which is currently regulated in e-commerce and consumer legislation, is defined as "persons who mediate the establishment of distance contracts on behalf of the seller/provider through the established system and remote communication tools".
The term of "platform" defined as the system established by the intermediary service provider to mediate the establishment of a distance contracts.
In addition, the definition of ancillary agreements has been expanded to enable intermediary service providers to enter into ancillary agreements with consumers like sellers, providers and third parties.
Obligations of the Intermediary Service Provider: The following obligations and responsibilities are imposed on the intermediary service provider:
Establishing a system that suitable for consumers to submit their requests and notifications such as withdrawal, termination and refund during the usage period of the rights and obligations arising from distance contracts established through the platform,
Transmitting requests and notifications from the consumer to the seller or provider,
Keeping records of the consumers transactions with sellers or providers and records of transactions made with the seller/ provider for 3 years and submitting them to the relevant institutions and organizations upon request,
Ensuring that preliminary information is provided and proving that preliminary information has been provided,
Ensuring that the information promised to the consumer in the advertisements made through the platform and the information in the preliminary information are compatible.
Liability of the Intermediary Service Provider for Additional Payments: It is regulated that the intermediary service provider shall be liable together with the seller or provider in the event that the consumer has made a payment due to the options that automatically selected and result in additional payment obligation without the explicit consent of the consumer.
Preliminary Information:
The scope of informing the consumer before the conclusion of the distance contract has been expanded.
It is regulated that the intermediary service provider shall be responsible for the accuracy of the information contained in the preliminary information alone or together with the seller and the provider, depending on the way the distance contract is established. The burden of proof regarding the preliminary information is placed on the intermediary service provider as well as the seller or the supplier.
In the event that the distance contract is established through the platform, intermediary service providers will be jointly and severally responsible for the preliminary information together with the seller or provider, and in cases where the data entry is made by the intermediary service provider, it is regulated that the intermediary service provider will be responsible for the deficiencies in the information such as the basic characteristics of the goods or services, the price, the name, tax number, contact address of the seller or provider and the intermediary service provider, and the accuracy of the data that should be included in the preliminary information.
Preliminary Information Method:
It is regulated that when communication is conducted through voice or when information is provided in a limited pace or time, the preliminary information that needs to be provided to the consumer in writing can also be provided via permanent data storage device.
In addition, in the case of distance contracts established through the platform, except for cases where the seller/provider enters the data, the intermediary service provider shall also be jointly and severally liable with the seller or the provider for the fulfillment of the obligations for the information and deficiencies in the mandatory matters that must be included in the information.
Other Obligations of the Intermediary Service Provider Regarding Preliminary Information:
In addition to the seller or provider, the intermediary service provider is also obliged to inform consumers in accordance with the preliminary information methods and to confirm the information in accordance with the remote communication tool.
In addition to the seller or provider, the intermediary service provider is also obliged for informing the consumer clearly and comprehensively before the consumer confirms the order, that the order placed implies payment obligation.
Furthermore, the intermediary service provider will now be obliged to prove that the consumer has been informed about the right of withdrawal, along with the seller/provider.
Exercise of the Right of Withdrawal: It is regulated that the notification of the exercise of the right of withdrawal shall be sufficient when it is directed to the seller, provider or intermediary service provider.
In addition, it is regulated that in distance contracts established through the platform the intermediary service provider must establish a suitable system for the consumer to fill out the withdrawal form or send the withdrawal statement.
The Effect of the Exercise of the Right of Withdrawal on Ancillary Agreements: It is regulated that in the distance contracts established through the platform, in the event that the ancillary agreements is mediated, the intermediary service provider will also be responsible for the notification of the use of the right of withdrawal .
Performance of Contract and Delivery: An exception has been made to the obligation of the seller or provider to fulfill its performance within 30 days from the date of receipt of the order in the sale of goods, and it has been determined that the 30-day time limit will not apply to goods prepared in line with the consumer's request or personal needs. In addition, intermediary service providers are also obliged to notify the consumer and refund the delivery costs, if any, in cases where the delivery of the order becomes impossible.
AMENDMENTS TO BECOME EFFECTIVE ON JANUARY 1, 2024
Preliminary Information: The scope of the preliminary information to be provided by the seller to the consumer has been expanded to include informing the consumer that they will be responsible for the cost of returning the product with a carrier other than the one designated.
Obligations of the Seller and Provider:
In case of the return of the goods subject to the right of withdrawal, the responsibilities of the seller, the supplier and the intermediary service provider regarding the return of the goods before and after the delivery of the goods have been expanded,
The responsibilities of the provider and intermediary service providers regarding the use of the right of withdrawal in contracts for the performance of services are regulated,
The process of how the returns will be carried out has been explained,
When exercising the right of withdrawal, if there is no preliminary information regarding the carrier information and cost amount designated for the return and who will bear these costs, the expenses will be covered by the seller or provider. However, if the necessary information is provided, the carrier costs for product returns arising from the exercise of the right of withdrawal will be borne by the consumers.
Obligations of the Intermediary Service Provider:
In the event that the consumer exercises the right of withdrawal after the delivery of the goods, if the payment has not been transferred to the seller as of the date on which withdrawal notification is received by the intermediary service provider, the seller and the intermediary service provider shall be jointly and severally responsible to refund the price of the goods and delivery costs starting from;
the date the goods is delivered to the carrier for return, or
the date the goods is received by the seller in case it is returned by a carrier other than the designated,
within 14 days of receipt of the product or service fee collected.
Obligations of the Consumer:
In cases where the seller or provider does not offer the consumer that they will take back the goods, the consumer will be obliged to send the relevant goods to the seller or provider within 14 days following the withdrawal notification.
The consumer shall cover the cost of the return, not exceeding the delivery costs, if the amount is included in the return by the carrier agreed in the preliminary information and stipulated by the seller. In the event that the goods are defective pursuant to Article 8 of the Law No. 6502 on the Protection of Consumers, the consumer cannot be held responsible for this cost, and it is also regulated that the return cost may be deducted from the cost of the goods, services and delivery services to be returned to the consumer and the delivery costs if the consumer requests.