CMS Guide to changes to EU Product Liability Directive in Türkiye

Product liability is detailed in the Product Safety and Technical Regulations Law No. 7233 (“Law 7233”), which is also a replica of the EU Acquis Communautaire.

Law 7223 ensures that national legislation is in line with the EU's 2019 product safety legislation. It covers all products that are:

• Intended to be placed on the market
• Offered
• Made available on the market
• Put into service

Law 7223 also introduces new measures against unsafe products, introduces detailed rules on administrative aspects of product safety and establishes a specific regime of product liability.

Law 7223 recognizes the non-contractual liability of manufacturers and importers for damage caused by a defective product.

Product liability claims of a commercial nature are mainly based on tort and contract law provisions of the Turkish Code of Obligations (“Code of Obligations”), No: 6098.

On the other hand, consumers bringing product liability claims may rely on the Consumer Protection Law No. 6502 (“Consumer Protection Law”), which was enacted in light of EU Directives 2002/65/EC, 2005/29/EC and 2008/122/EC.

The Regulation on Liability for Damage Caused by Defective Goods contains provisions similar to those of the Product Liability Directive (85/374/EEC).

Contrary to the EU Product Liability Directive (85/374/EEC), under the Turkish Code of Obligations (6098), the indemnification obligation arising from defective or flawed products is a fault-based liability – the code provides no strict liability due to a defective product. Accordingly, a party which has suffered a damage due to a defective product must prove:-        

• the damage;
• the causality; and
• the fault of the manufacturer or concerned party.

By contrast, under the Consumer Protection Law, any party which suffers damages as a result of a defective product may claim these damages from the producer of the product in question without the need for proof of fault. According to the law, the damages arising from defective products are regulated as strict liability. In such cases, the producer or manufacturer may be relieved from liability if it provides proof of relief.

The Turkish Penal Code (“Penal Code”) also contains several criminal offences related to product liability under the sections "Offences against public health" and "Offences related to economy, industry and commerce".

Further, the Law on the Regulation of Electronic Commerce was prepared taking into account both the European Union directives and the requirements of Türkiye and published in the Official Gazette dated 05.11.2014. Subsequently, within the scope of the regulations and communiqués issued, secondary legislative arrangements were made in this field.

In the said law, electronic commerce is defined as all kinds of online economic and commercial activities carried out in electronic environment without physical confrontation. Except for domain names and e-mail addresses, all kinds of communication related to electronic commerce in order to gain profit within the scope of professional or commercial activity are considered within the scope of electronic commerce.

The activities of the service provider and intermediary service provider shall be audited by the Ministry of Trade. The auditors assigned by the Ministry are authorized to request all kinds of information, documents and books, to examine and take samples thereof, and to obtain written and verbal information from those concerned in relation to the matters falling within the authority of the Ministry within the scope of the said regulation. Those concerned are obliged to provide the requested information, documents, books and electronic records and their samples in full to meet the written and verbal information requests and to provide the necessary assistance and convenience. 

There have not been any recent amendments under the Turkish legislation that follows the updated EU Directive. 

Having said that; as to the definition of “products”:

• The Turkish Code of Obligations and Law 7233 make a general definition of “product”. According to the TCO, any goods subject to a sales transaction are defined as products. According to Law 7233, a product stands for all kinds of substances, preparations and articles; where
• Consumer Protection Law makes a more specific definition of a product as merchandisable (i) movable goods, (ii) immovable properties bearing the purpose of housing or vacation; as well as (iii) software, sound vision, and all similar intangible goods designated in electronic medium.

N/A.

N/A.