Important changes to the Distance Selling Regulations

The regulation amending the regulation on distance selling (“Regulation“) was published in the Official Journal on August 23, 2022.

With the exception of the provision relating to the obligation of the card issuer on refunds of the amount transferred by the seller, the service provider or the intermediary service provider, which will come into force on January 1, 2023, the changes will come into effect on October 1, 2022.

Recent development

The Ministry of Commerce has made significant changes to the provisions concerning the scope of the Distance Selling Regulation, the obligation of prior notification, the right of withdrawal and the obligations of the seller, the service provider and the consumer. With the amendments, the Distance Selling Regulations have been brought into line with the amendments introduced in the Consumer Protection Act on April 1, 2022.

The rules are available online here (in Turkish).

What’s new?

The main changes contemplated in the regulations are as follows:

Scope

  • Value-added electronic communication services established by short messages and fully executed simultaneously without subscription, donations collected under the law relating to the collection of aid and value-added electronic communication services offered by public establishments have been excluded. of the scope of distance selling. Regulation.
  • With the Regulation, intermediary service providers who intervene in the establishment of distance contracts on behalf of the seller or service provider through distance communication tools and the platforms they use are also defined and additional obligations are introduced.

Preliminary information

  • The name or title, MERSIS number or tax identification number, contact details and solutions to complaints of the intermediary service provider must also be provided to the consumer as part of the prior information.
  • The consumer must be informed of the delivery or performance time, the return costs, which must not exceed the delivery costs, the party responsible for this amount and the consumer’s obligation to bear the return costs if the good is returned by a carrier other than the one specified. The intermediary service provider must now provide proof of compliance with the information obligation.
  • If the distance contract is established via a platform, the intermediary service provider is individually and jointly responsible for providing the prior information. If the intermediary service provider performs the data entry, he will be responsible for any gaps in the information and the accuracy of the data.

Right to retract

  • Consumers will be able to inform the intermediary service provider of the execution of the right of withdrawal.
  • In distance contracts established on a platform, the intermediary service provider must provide the necessary system on the platform to allow consumers to fill in the form annexed to the regulations or to send the notification of withdrawal. Intermediary service providers must inform the consumer immediately upon receipt of the withdrawal request.
  • The following contracts have been excluded from the scope of the right of withdrawal: (i) contracts relating to movable property, which must be registered in accordance with road traffic law, and unmanned aerial vehicles subject to the registration requirement; (ii) contracts on mobile phones, smart watches, tablets and computers delivered to the consumer; (iii) contracts concluded by means of live auctions; and (iv) contracts for goods that have been installed or assembled by Seller or Authorized Services in accordance with advertisements and the user manual. Therefore, consumers will not be able to exercise the right of withdrawal in the aforementioned contracts.

Obligations of the seller, the service provider and the intermediary service provider

  • The seller’s obligation to refund payment for the goods subject to the right of withdrawal within 14 days will begin (i) on the date of delivery of the goods to the carrier specified in the prior information, or (ii) on the date of delivery of the goods delivered to the seller if the consumer entrusts the goods to another carrier than that indicated in the prior information.
  • The intermediary service provider is individually and jointly liable with the seller for the reimbursement of the consumer, except in cases where the distance contracts have been established via a platform and the payment has been transferred to the seller by the intermediary service provider upon delivery.
  • The reimbursement responsibility of the intermediary service provider who collects payments on behalf of the seller or service provider begins within 14 days of the following dates:
  1. The date on which the notification concerning the use of the right of withdrawal is received, if the consumer exercises the right of withdrawal before the delivery of the goods or the performance of the service
  2. The date on which the goods subject to the right of withdrawal are handed over to the specified carrier for return, or the date on which the goods are handed over to the seller if they are returned with a carrier other than that specified. This is provided that the payment has not been transferred to the seller on the date on which the consumer has exercised his right of withdrawal after delivery of the goods.
  3. The date on which the notification regarding the use of the right of withdrawal is received, if the consumer exercises the right to withdraw from the contract due to defective delivery or performance
  • Except where payment is transferred to the seller or service provider after delivery or performance of the goods or services, the intermediary service provider collecting payment on behalf of the seller or service provider on the basis distance contracts established via a platform is individually and jointly liable with the seller or the service provider for the performance of the reimbursement obligation. If payment is made by credit card, the card-issuing institution must immediately return the amount transferred by the seller, service provider or intermediary service provider to the cardholder’s card.
  • If the return information is not provided in the prior information, the return costs will be borne by the seller or the service provider. If return information is not provided in distance contracts established through a platform, or if the carrier specified for returns does not have a branch at the consumer’s due to fault attributable to the intermediary service provider, the return costs will be borne by the intermediary service provider.
  • In distance contracts established through a platform, the seller or service provider must immediately inform the intermediary service provider of the exercise of the right of withdrawal.
  • The intermediary service provider must establish an uninterrupted system for consumers to make notifications and follow up on requests concerning (i) the right of withdrawal, (ii) termination of the contract, (iii) reimbursement, and ( (iv) complaints and claims regarding delivery or performance and other demands.
  • The intermediary service provider must keep records of the consumer’s transactions with the seller or service providers for three years and provide this information to authorized institutions, organizations and consumers upon request.
  • The intermediary service provider is responsible (i) for respecting the commitments on the campaigns, promotions or sales that it organizes without the agreement of the seller or the service provider, and (ii) for the compatibility between the information contained in the advertisements and promotions made on the platform and preliminary information.

Consumer rights and obligations

  • Consumers are required to cover return shipping costs not exceeding the delivery costs, provided that the return shipping costs with a certain carrier are specified in the preliminary information. If the goods are defective, the return costs cannot be claimed from the consumer. Return costs may be deducted from the amount of the refund to be made to the consumer at his request.

Conclusion

In accordance with the regulation, the responsibilities of intermediary service providers have been extended, the scope of the right of withdrawal has been narrowed and significant changes have been made to the refunds to be made to consumers. All stakeholders must ensure they comply with the amendments by the effective date.

The content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may qualify as “lawyer advertising” requiring notice in some jurisdictions. Prior results do not guarantee similar results. For more information, please visit: www.bakermckenzie.com/en/client-resource-disclaimer.

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