Ercüment Erdem Att. Alper Uzun

The New Consumer Law Has Entered into Force

November 2013

Introduction

The Law on Consumer Protection, dated 23.02.1995 and numbered 4077, was the first specific law to include provisions aimed at the protection of consumers in Turkish Law. Law No. 4077 was updated through amendments made in the year 2003. On the other hand, in order to establish coherence between the Turkish and EU legislations and to harmonize the Turkish Law of Obligations and the Turkish Commercial Law, which entered into force in 2012, the need to examine the main legislation related to consumer rights was raised, and as a consequence Law No. 6052 (“the Law”), published in the Official Gazette dated 28.11.2013, has emerged. The Law will enter into force six months after its publication. Compared to the former Law No. 4077, the new Law provides more detailed regulations and sanctions in many cases.

Important Provisions Brought by the Law

The need to protect consumers originates from various causes. The necessity to protect consumers through legal provisions arises from the fact that consumers often do not have enough knowledge when concluding legal transactions. In this case, a disproportion of knowledge exists between parties and it is only through legal measures that it can be rectified. In the Law’s preamble, this aspect is specifically stressed, and it is determined that the purpose of all cases where an obligation to inform the consumer before or during the conclusion of a contract is to remove this disproportion and to provide consumers with the possibility of making informed decisions when concluding a contract. In some cases, this obligation is stipulated as a written form requirement, the lack of which would nullify a contract. In other cases it is determined that the contract will be executed despite insufficient information being provided to the consumer, but where the consumer has not been informed of certain matters, he will benefit from rights to the detriment of the party who has drafted the contract. By entering into force, the Law now regulates the issues around which, when and how a consumer should be informed.

One of the important provisions of the Law relates to the issue of consumers concluding various contracts, such as for periodic vacation, long term vacation, contracts which are closed outside the workplaces, prepaid and distance contracts, distance sales of financial and loan services, without effectively examining the terms because of the attraction of such transactions and enticing marketing tactics. In these cases, it is generally seen that consumers regret having concluded such contracts in the end. Therefore, the Law provides for a right of withdrawal, and this right shall be used within 14 days.

As well as rights provided by the Code of Obligations to protect consumers, the Law includes measures related to the supervision of the market. For example, the supervision of unfair conditions, advertisements and practices and the prohibition of all advertisements and unfair commercial practices that could mislead the free will of consumers.

Definitions and Fundamental Principles Applicable to Consumer Contracts

Definition of “consumer” in the Law is reconsidered and defined as “a natural person or legal entity acting with no commercial or professional purposes”. The scope of the consumer transaction is extended. Thus, a consumer transaction may be all contracts and legal transactions including, but not limited to, work agreements, carriage contracts, brokerage contracts, insurance contracts, simple agency contracts, banking agreements et seq.

In Article 4 of the Law, fundamental principles which will be applicable to consumer contracts are specially provided. Accordingly, contacts and information which are required to be issued in written form will be issued in an understandable language, in a clear, simple and readable manner, in at least a twelve point font; and one copy shall be given to the consumer, on paper or via a memory data register. Conditions provided in the contract shall not be amended to the detriment of the consumer during the term of contract. It is stipulated that the consumer shall not incur any additional charge for performances that the consumer should rightfully expect within the scope of the goods or services presented to him, or which are within the scope of the legal liabilities and expenditures incurred on personal benefits of the contract preparer. It is accepted that, by the reason of the transactions concluded by the consumer, only a bond to the name and separately for each installment payment can be prepared as a negotiable instrument, however bonds prepared in contravention of the provisions of this paragraph shall be invalid from the point of view of the consumer. In consumer transactions, personal guarantees received against the obligation of the consumer shall be considered as simple surety; personal guarantees with regards to the claims of consumers given by the opposing party shall be considered as joint and several (consecutive) surety, unless otherwise provided by any other laws. Hereinafter, it is prohibited to apply compound interest on consumer transactions, even in default situations.

A Consumer’s Right to Legal Remedies

A Consumer’s Right to Legal Remedies is also provided for in the Law differently than in the former Law. Several regulations concerning the Arbitral Commission for Consumers and the Consumer Courts are set forth, proving that Consumer Organizations will be able to file a lawsuit that Consumers cannot usually file separately.

In Article 73 of the law, “consumer courts” are regulated. Accordingly, consumer courts are incumbent upon lawsuits related to litigation arising from Consumer transactions and practices directed at the consumer.

In Article 68 of the law, the basis for application to the “Arbitral Commission for Consumers” and some innovations are brought. Thus, it is compulsory to apply to the district arbitral commission for consumers for under an amount of two thousand Turkish liras, the provincial arbitral commission for consumers for disputes under an amount of three thousand Turkish liras, and in provinces under the statute of the metropolitan municipality between the amounts two and three thousand Turkish liras. No application to the arbitral commission for consumers shall be for disputes exceeding the aforementioned amounts.

The decisions of the arbitral commission for consumers are made in accordance with the provisions of the Enforcement and Bankruptcy Law related to the execution of writ. The parties can file an appeal to object to the decisions of the arbitral commission for consumers before the consumer court located at the arbitral commission for consumers within fifteen days from the date of notification. The appeal does not stop the enforcement of the decision of the arbitral commission for consumers. However, if requested, the judge may stop the enforcement of the decision of the arbitral commission for consumers with a decision of temporary injunction. The decision rendered by the consumer court upon the appeal against a decision of the arbitral commission for consumers is decisive, and does not permit any legal remedy.

Conclusion

The Law on the Protection of Consumer numbered 6052 has been published in the Official Gazette dated 28.11.2013. The Law will enter into force six months after its publication. Compared to the former Law, The new Law provides more detailed regulations and sanctions for many cases.

The Law on Consumer Protection, dated 23.02.1995 and numbered 4077, which was the first law to include provisions aimed at the protection of consumer rights in Turkish Law, will be abolished by the entering into force of the Law No. 6052.

The Law No. 6052 includes provisions harmonized with European Union legislation and parallel stipulations with the Turkish Code of Obligations and the Turkish Commercial Code, which entered into force in 2012.