Nowadays consumer expectations are higher, they are more likely to buy a defective good or receive defective service.
To protect the consumer, international organizations published general rules and guidelines. One of them is the Department of Economic and Social Affairs of the United Nations (UN DESA). It announced guidelines in the late 1970s, which were expanded in 1999. They consist of eight main objectives such as, facilitating protection, promoting sustainable consumption and maintaining adequate protection for a country’s population as consumers. Even if these guidelines are not binding for national regulations, they do determine basic consumer rights and objectives for members of the UN.
Turkiye has been a charter member of the UN since 1945 and the above-mentioned guidelines were published in the late 1970s. Unfortunately, however, Turkish Consumer Law (No: 4077) was only passed on Feb. 23, 1995 and was published in the Official Gazette on March 8, 1995.
Article 2 of the Consumer Law states the subject of law. In this respect, subjects of the law are all consumer-related transactions within the goods and services markets to which a consumer is subject. In addition, Article 1 — which is related to the purpose of the contract — is included in the subject of the law. It is to take measures for protecting the health, safety and economic interests of consumers in line with public interest, maintaining consumer awareness, covering loss incurred by consumers, protecting them against environmental hazards, promoting consumer initiatives aimed at protecting consumers’ interests and encouraging civil society organizations that contribute to consumer-related policies.
It is needed to clarify some definitions that are stated under the Consumer Law.
Who is the consumer, seller/service provider?
A consumer, as defined in Article 3, is either a natural or legal person who receives, uses or benefits from goods or services for purposes that are not related to his profession or commercial activities. According to Article 3, a seller can be either a natural or legal person who provides goods to the consumer as part of his job, including any public legal entity. Supplier means any natural or legal person who provides services as part of his job/business/trade/profession to a consumer.
Goods means any movable property subject to purchase or sale, immovable property for residential or vacation purposes and any software, audio, visual or other intangible goods intended for use in the electronic environment where service is defined as any activity, other than the supply of goods, performed for the payment of a fee or consideration.
Under which conditions is a consumer entitled to benefit from Consumer Law protection?
Defective goods;
According to the Consumer Law defective goods are: Goods which contain, material, legal or economic deficiencies which influence the quality, or the quantity that affects the quality, specified on the packaging, labeling, presentation or operating instructions, or in the advertisements or notices, or declared by the seller or established in the standards or technical regulations, or decrease or eliminate its value or the benefits expected from such product by the consumer with respect to fitness, shall be deemed as defective.
The Consumer Law states that: “the statute of limitations for responsibility for defective goods is two years following the delivery of the goods to the consumer, even if the defect appears later, unless those responsible for the defect under the Consumer Law have undertaken responsibility for a longer period. The statute of limitations is five years for immovable properties used for residential or vacation purposes.” The statute of limitations shall not be applied if the seller is concealing any defect through his gross negligence or fraud.
When the consumer notifies the seller of a defect, the consumer has four options to claim against the seller, which are: (i) rescind the contract with a refund; (ii) replace the product with a new one; (iii) get a reduction in the price proportional to the defect; or (iv) get it repaired free of charge. The manufacturer, seller and distributor are jointly and severally responsible for these options; an importer is also responsible if involved.
When the consumer notifies the seller of the option choosed but the seller fails to comply and fulfill your claim, the consumer should apply to either the Arbitration Committee for Consumer Problems or the Consumer Court.
Arbitration Committee for Consumer Problems
To resolve disputes arising from the application of Consumer Law, the Ministry of Industry and Trade shall consist of at least one arbitration committee at the city center of provinces and districts. A committee shall consist of five members selected by public institutions. For provinces and districts without ministry provincial organization, chairmanship of the committee shall be held by either the highest administrative authority or an official appointed by him or her.
The arbitration committee shall conclude cases within three months and parties will be notified in writing within five days after a decision has been reached.
Consumer courts
Any disputes regarding the enforcement of this law are heard at consumer courts. In addition, the judicial districts of consumer courts are determined by the Supreme Board of Judges and Public Prosecutors (HSYK). Consumers do not have to pay any fees or charges to file a suit before consumer courts. Otherwise, the main purpose of the law, which is to efficiently protect consumers, cannot be fulfilled. Pursuant to the provisions of the Law 6183 on the Collection of Public Receivables, if the consumer court awards against the defendant, the expert witness fee shall be collected from the defendant. Cases heard at consumer courts will be conducted in accordance with the provisions of Part Seven, Chapter Four of the Code of Civil Procedure.
Arbitration committee or consumer court?
It is important to know the criteria for whichever one you choose to apply to. It depends on the amount of the claim. I want to explain it using my example. If the cost is under TL 1,031.87. It is needed to apply to the arbitration committee, whose decision is binding on the parties and enforced with the Enforcement and Bankruptcy Law’s provisions. Parties have the right to appeal arbitration committee decisions before consumer courts within 15 days. An appeal will not stop the enforcement of the committee’s decision but it may be suspended upon request. For this procedure, the consumer court’s decision after an appeal of the committee’s decision is final.
If the cost is over TL 1,031.87, it is needed to apply to either an arbitration (referee) committee or a consumer court. When the application is done to the arbitration committee, its decision may be presented to the consumer court as evidence. Also, if the other party does not fulfill or enforce the committee’s decision, it is needed to apply to consumer court.
Pursuant to Article 23 of Consumer Law, cases relating to consumer affairs can also be filed before court in the district where the consumer resides.