The Grand National Assembly of Turkey has introduced a new legislation on product liability and safety matters and technical regulations of products in Turkey. The Law numbered 7223 on the Product Safety and Technical Regulations (“The Law”) is published on Official Gazette on 12 March 2020 to be effective as from 12 March 2021 by annulling the Law numbered 4703 on the Preparation and the Implementation of the Technical Regulations regarding the Products (“the Preceding Law” or “the Law Numbered 4703”). The Law, having mostly based upon the same grounds of the Preceding Law, constitutes crucial differences in terms of the product liability.
Comparing to the Preceding Law, the scope of the Law has been expanded and some terms are amended. The products which are or will be exported to be released in the EU market are clearly included in and the products which are or will be exported to be released out of the EU market are excluded from the scope of the Law. Also, the Preceding Law was not sufficient to define all the actors in the market. However, the Law defines each actor separately as (i) the manufacturer, (ii) the representative of the manufacturer, (iii) the importer and (iv) the distributor and elaborates the responsibilities of each actor in detail to ensure the product safety protection.
Most importantly, the Law introduces the product liability as a special responsibility under Turkish Law rather than including it in the contractual or tort responsibilities legislated under the Code of Obligations. As it is known, the product liability has always been a confusing legal issue in Turkey since there was not any specific legislation foreseeing direct product liability of the manufacturer/importer. Although the Code of Obligations numbered 6098, the Law Numbered 4703 and the Consumer Protection Law numbered 6502 were applied to the product liability matters, these legislations were insufficient to specify the responsibility of the manufacturer/importer with regard to the products. Accordingly, the provisions of the Law will be considered as the main legal basis for the product liability damage claims as of 12 March 2021. The significant provisions of the Law are presented herein below:
1. Product Safety
The Law has regulated the product safety provisions as it is formed under the Preceding Law. Accordingly, the products released to the market shall be safe and the products that are aligned with the human health and safety provisions of the technical regulations are acknowledged as “safe products” unless otherwise proven. The Law has also declared that in case the technical regulations do not include any provision regarding human health and safety, the assessment of the product safety is made according to the general product safety regulations.
2. Product Liability
The product liability compensation which is regulated under the Article 6 of the Law provides that in case a product damages persons or goods, the manufacturer or the importer of the product shall indemnify the damages of the injured party. In such case, indemnified party shall be under the burden of proof for the causal link between (i) the damage and (ii) the consequence. It is stated that in case the damages are caused by more than one manufacturer or importer, they will be held severally responsible.
The Law has strictly invalidated any exclusion clause foreseeing that the manufacturer or the importer would not be liable for their products.
The right to claim compensation for the damages caused by the products is lapsed (i) in 3 years as of the date when the injured party is informed about the damage and the responsible person (“indemnifier party”) and (ii) in 10 years in any case as of the date when damage occurs.
The related provisions of the Code of Obligations are applied to calculate the amount of the compensation for the pecuniary and non-pecuniary damages.
3. Responsibilities of the Business Enterprises
Responsibilities of the Manufacturer
The manufacturer shall;
Release the products which are compliance with the specific technical regulations and/or the general product safety regulations,
Prepare the technical documentation when it is required by the regulations, conduct or make conduct conformity assessment, prepare the declaration of conformity and other required documents, place conformity mark on the product,
Keep the technical documents for the determined period or 10 years as of the market release date in case any period is not determined in the related document,
Conduct examination and tests on the product samples obtained from the market, record the complaints, non-conforming and recalled products and inform the distributor regarding the monitoring activities,
Place the registered business name or the brand and the full address on the product and package,
Take all precautions against the risks that the product may pose and inform the end user to avoid these risks,
Take all the corrective actions to stop the releasing of the product to the market, to recall or to remove the products from the market when it is learned or must be known that the released product in the market is non-conforming and inform the competent authority to take corrective actions immediately.
Responsibilities of the Representative of the Manufacturer
According to the Law, the manufacturer can assign a representative, residing in Turkey, by specifying the assigned powers and duties, the conditions and the limitations.
The representative of the manufacturer shall;
Fulfil the assignments issued by the manufacturer,
Keep the technical documents for the determined period or 10 years as of the market release date of the product in case any period is not determined in the document and submit it to the competent authority when it is requested,
Carry out the instructions of the competent authority during the activities pursuing the elimination of the risks arising from the product.
Responsibilities of the Importer
The importer shall;
Release the products which are compliance with the technical regulations and/or the general product safety regulations,
Warrant that (i) the manufacturer has conducted conformity assessment, (ii) the product has the conformity mark, (iii) the required documents are accompanying the product and (iv) the registered business name and full address of the manufacturer is placed on the product, before the product is released to the market,
Not release the non-conforming products to the market and inform the both manufacturer and the competent authority in case the product constitutes risks,
Place its registered business name or the brand and the full address on the product/package/related document,
Take all precautions against the risks that the product may pose and inform the user to avoid these risks,
Ensure that the language of the information regarding the risks of the product, the guide to setup, use and maintenance, and the safety rules is in Turkish,
Provide the storage and transportation conditions required under the technical regulations and the general product safety regulations when the products are under its responsibility,
Conduct examination and tests on the product samples obtained from the market, record the complaints, non-conforming and recalled products and inform the distributor regarding the monitoring activities,
Take the corrective actions to cease releasing of the non-conforming product to the market and recall them from the market and inform the competent authority to take corrective actions immediately.
Responsibilities of the Distributor,
The distributor shall;
Warrant that (i) the manufacturer has conducted conformity assessment, (ii) the product has the conformity mark, (iii) the required documents are accompanying the product in Turkish and (iv) the registered business name and full address of the manufacturer and the importer is placed on the product, before the product is released to the market
Not release the non-conforming products to the market and inform the manufacturer, importer and the competent authority in case the product constitutes risks,
Provide the storage and transportation conditions required under the technical regulations and the general product safety regulations when the products are under its responsibility,
Cooperate with the business to take the corrective actions to cease releasing of the non-conforming product to the market and recall them from the market and inform the competent authority to take corrective actions and the results of these actions immediately.
Other Responsibility Provisions
The importers and the distributors who release the product to the market with their own name or brand considered to be a manufacturer under the Law so that they are obliged to fulfil the manufacturer’s responsibilities.
In case the manufacturer, the representative of the manufacturer or the importer of the product cannot be detected, the distributor who does not inform the competent authority regarding identity of the manufacturer, the representative of the manufacturer, the importer or the previous entity in the supply chain will be considered to be a manufacturer under the Law and such distributor is obliged to fulfil the manufacturer’s responsibilities.
4. Supervision of the Competent Authorities
The Law has granted the competent authorities with certain authorized to conduct market surveillance and supervision. Accordingly, the competent authorities is authorized to (i) conduct inspections to the storages, transportation vehicles, manufacturing site or any other workplace, (ii) make tests on the samples of the products, (iii) request any information and document from the audited entity. After the inspection, the competent authority shall decide whether there is sufficient reason to conduct risk evaluation or not.
The business enterprises shall take effective and corrective actions in line with their above-mentioned responsibilities, otherwise, the competent authority may impose administrative sanctions and/or give the business enterprise time to take corrective actions. Some of the essential corrective actions provided under the Law are presented below:
Informing the competent authority with the risks constituted by the products, already taken corrective actions and their results,
Taking necessary precautions to ensure the conformity,
Suspension of the release of the products that have symptoms referring that it may pose serious risks,
Ceasing the release to the market and recalling the products from the market,
In case the business enterprises does not take the necessary precautions in time or such precautions are regarded as insufficient by the competent authority, the competent authority shall ex-officio take the necessary precautions.
The business enterprise who takes necessary precautions required by the Law shall also announce the risks of the products to the public. The competent authority may request the repetition of the announcement if it does not approve the form of the announcement or considers that the announcement made was insufficient.
Administrative sanctions do not apply to the business enterprises who take the necessary precautions, including without limitation the recall, by their own without the request or warning of the competent authority.
5. Effective Date of the Law
The Law is published at Official Gazette on 12 March 2020 shall be effective at the date 12 March 2021. Until then, the Preceding Law will be effective for the product liability and safety matters.
Published on Lexology.com on 01.04.2020.