News & Insights
Consumers to Bear the Cost of Return
Ezgi Karakan | ASSOCIATE16.09.2022
An Amendment to the Regulation on Distance Sales (the “Regulation”) was published in the Official Gazette on 23.08.2022.
Changes that especially stand out include return delivery costs potentially being coverable by the consumer, tighter rules regarding the right to withdraw from a contract and more comprehensive regulations regarding the obligations of the intermediary service provider.
Who Is To Be Affected And How?
The amendments made by the Regulation affect consumers, providers of goods and services to consumers, as well as sellers and intermediary service providers who mediate the establishment of distance contracts for the purpose of providing these goods and services.
What's Changed With The New Regulation?
In line with the changes made, the definitions of ‘Intermediary Service Provider’ and ‘Platform’ have been added to the Distance Sales Regulation. Intermediary Service Provider is described as “the real or legal person who mediates the establishment of distance contracts on behalf of the seller or provider by using or making available remote communication tools with the system it has created” Platform is defined as “The system established by the intermediary service provider to mediate the establishment of a distance contract, with the exception of the common public electronic platform, where public services are provided from a single point.”. In addition, if the distance contract is established through the platform; it is stated that the intermediary service provider, together with the seller and the provider, is jointly and severally responsible for number of issues, including providing preliminary information, confirming and providing proof regarding the fulfillment of the obligation to inform, as well as refunds of payments in certain circumstances, in parallel with the changes made in consumer legislation.
The amendment outlines that, the following information must also be included in cases where the consumer has the right to withdraw before the establishment of a distance agreement or the acceptance of any corresponding offer;
- Conditions, duration, procedure for exercising this right,
- Information about the carrier that the seller provides for the return,
- In case the goods are returned with this carrier, information on the amount of the return cost and the party who will cover them, these costs cannot exceed the cost of delivery,
- In the event of a refund with a carrier other than the stipulated one, the consumer will cover the cost of the refund.
In distance contracts established through a platform, it is mandatory for the intermediary service provider to establish the necessary systems on the platform enabling the consumer to fill out the relevant withdrawal form or the ability to send a withdrawal statement. The system must immediately notify the consumer with confirmation that the withdrawal statements reached the intermediary service provider and the seller/provider.
In the event that the consumer exercises the right of withdrawal, the seller's obligation to return all payments within fourteen days begins on the date the consumer delivers the goods to the carrier specified in the preliminary notification. The exception to this occurs if the consumer delivers the goods to a carrier other than the stipulated one. In this case, the return period will begin on the date the goods reach the seller.
In case the relevant issues are not specified in the preliminary notification, or the specified carrier does not have a branch at the consumer's location, the delivery costs will be covered by the seller or provider, or by the intermediary service provider in case the issues specified in the distance contracts established through the platform are caused by the intermediary service provider.
In cases where the consumer exercises their right of withdrawal before the goods are delivered to them, the delivery costs paid by the consumer must be refunded by the seller or by the intermediary service provider if the distance contract is established through a platform and the collection of the price is mediated. In the event that the consumer exercises the right of withdrawal in contracts established through a service provision platform and the collection of the price is mediated, the intermediary service provider will also be obliged to refund all payments collected within fourteen days from the date of receipt of the notification on exercising the right of withdrawal.
The intermediary service provider must establish and maintain a system allowing consumers to transmit and track the following requests and notifications during the period of exercise of the rights and obligations arising from distance contracts enter into through a platform;
- The exercise of the right of withdrawal,
- Termination of the contract,
- Refund of the cost,
- Records of transactions between the consumer and the seller or provider,
- Claims and complaints related to delivery or performance.
The intermediary service provider will be obliged to keep records of transactions between the consumer and the sellers or providers which occurred through the platform for three years and, upon request, provide them to the relevant institutions, organizations and the consumer.
In accordance with the amendment to the Regulation, the consumer will be obliged to send the goods back to the seller or supplier or to the person authorized by the consumer within fourteen days from the date of submitting the notification to exercise the right of withdrawal.
The consumer is obliged to cover the return costs, not exceeding the delivery cost, if this is outlined in the preliminary notification and the cost in case of return is specified with the carrier stipulated by the seller. However, defective goods are an exception to this provision and in such a case the consumer is not held responsible for the return cost in this case. In line with the consumer's request, the return cost can be deducted from the delivery costs with the cost of the goods or services subject to return.
In case the consumer exercises the right of withdrawal in the distance agreement, the third party involved in the agreement by way of providing additional goods or services to the consumer, must immediately be notified by the intermediary service provider.
Unless otherwise agreed by the parties the consumer cannot use the right of withdrawal in the following contracts;
- Contracts on mobile phones, smart watches, tablets and computers delivered to the consumer,
- Contracts concluded by way of live auction,
- Contracts on goods that have been installed or assembled by the seller or authorized services in accordance with the relevant advertisements and the user manual and
- Contracts on movables which must be registered according to the Highway Traffic Law No. 2918, or on unmanned aerial vehicles, which must be registered.
An exception to the requirement that the consumer's order must be delivered within thirty days from the date of receipt by the seller or supplier is applicable if the contract requires that the good is prepared in accordance with the consumer’s personal requirements.
Article 18 regarding the effective date of the amendments made by “the Regulation” has been amended by the Amendment to the Regulation on Distance Sales published in the Official Gazette on 14.09.2022. Accordingly, article 5/1-g amended by article 3 of the Regulation, article 9, article 12/A/7-b added by article 10, articles 11 and 13 will enter into force on 1/1/2024, and the other provisions will enter into force on 1/10/2022. Please find the full text of the Turkish version of the Amending Regulation dated 14.09.20222 here and the Amending Regulation dated 23.08.2022 here.