General product obligations
1 – What are the basic laws governing the safety requirements that products must meet?
Article 172 of the Turkish Constitution guarantees the protection of the consumer by the state. Although there is not a specific Code of Product Liability in Turkey, there are several acts and regulations on the subject matter. Law No. 4,703 on the Preparation and Implementation of Technical Legislation on Products is the general framework Law of Turkey (Law No. 4,703) which states the general principles of ‘product safety’ which has fully transposed Council Directive 92/59/EEC on general product safety (GPSD). The other regulation which includes provisions regarding product safety is Law No. 4,077 on the Protection of Consumers (Law No. 4,077) which has been severally amended in accordance with EU Directives. The By-Laws of these two Laws, especially the By-Law on Liabilities for Damages Resulted from Defective Goods and the By-Law on Market Surveillance and Inspection of Products, also address product safety.
2 – What requirements exist for the traceability of products to facilitate recalls?
Although the requirements for the traceability of products are not specifically mentioned under Law No. 4,703, article 5 of the said law indicates that the producers must take the appropriate measures for the safety of the products. One of the requirements that must be fulfilled by the producers for the safety of a product is to mark the product in such a way that its characteristics can be identified. Under the above-mentioned statute there are no further requirements for traceability. In practice, the said clause refers to the obligation to provide the traceability of the product as to be traceable by the authority when it is needed. Therefore, each sector-specific legislation contains more detailed requirements for the implementation of the traceability of a product.
On the other hand, because of deficiencies in traceability, article 28 of the draft law on the safety of products specifically regulates the traceability requirements of a product that must be fulfilled by the producers.
3 – What penalties may be imposed for non-compliance with these laws?
Article 12 of Law No. 4,703 regulates administrative penalties that will be applied in cases where the producers breach their obligations as stipulated in article 5 of Law No. 4,703. According to article 12, several administrative penalties may be applied depending on the obligation breached by the producers. Furthermore, the above article is a framework law for all the product safety laws, regulations or by-laws. In other words, if there is an issue with a type of product that is not covered by legislation, article 12 will be the general law for the administrative penalties to be determined by the authority.
Article 11 of Law No. 4,703 stipulates the sanctions in case there are definite indications that a product is unsafe. The authorities have the power to order administrative penalties depending on the risks caused by the product or service. According to the mentioned clause, prohibition of the placing of the product on the market, withdrawal of the marketed products, whole or partial disposal of the products if it is impossible to render them safely, and announcing the necessary information related to the measures laid down in the previous paragraphs (paragraphs a, b and c of article 11) to persons at risk by publishing this information in two daily newspapers and two television channels that has nationwide distribution shall all be conducted by the related authority with jurisdiction for the product in question.
Reporting requirements for defective products
4 – What requirements are there to notify government authorities (or other bodies) of defects discovered in products, or known incidents of personal injury or property damage?
Articles 3(e) and 3(f) of Law No. 4,703 defines the essential requirements that a product must meet to be defined as a safe product. According to the said articles, a safe product shall mean any product which, under normal conditions of use, does not present any risk or presents only risks considered acceptable and brings a high level of protection with respect to the essential requirements. Essential requirements shall mean the minimum safety conditions which the product shall present regarding the level of protection for the health of persons, the safety of persons and their properties, the life and health of animals and plants, the environment and the consumer. Although there is no specific regulation on notification requirements for authorities, in practice any product that is contrary to the above mentioned articles is considered as notifiable to the authorities.
5 – What criteria apply for determining when a matter requires notification and what are the time limits for notification?
According to article 5 of Law No. 4,703 concerning the safety of products and services, producers and distributors are obliged to notify the related authority that a product or service brought on the market for consumers contains risks and does not comply with general safety requirements. Although no time limit is indicated in the said article, in practice producers and distributors shall notify the risk at the moment they know or should know based on their professional knowledge and experience.
6 – To which authority should notification be sent? Does this vary according to the product in question?
Article 4 of Law No. 4,703 states that the obligation to monitor the safety of a product lies with the public authorities with respect to their legally established competency areas. Public authorities are responsible for market surveillance and the product groups under their responsibility.
Particular types of legally established product areas are as shown below:
If a consumer product is not under the specific jurisdiction of any public authority, it is the Ministry of Science, Industry and Technology that is responsible for monitoring the safety of such products and taking necessary measures as per Law No. 3,143 on the Establishment and Organisation of the Ministry of Science, Industry and Technology and Law No. 4,703.
7 – What product information and other data should be provided in the notification to the competent authority?
There is no specific criteria for the information that needs to be provided for the notification of a product or service that contains risks. In practice, any information or data that is essential to clearly define the product must be provided to the competent authority during the notification.
8 – What obligations are there to provide authorities with updated information about risks, or respond to their enquiries?
There is no specific obligation provided for the producers or the distributors to inform the authorities concerning the updated information about the risks.
9 – What are the penalties for failure to comply with reporting obligations?
See question 3.
10 – Is commercially sensitive information that has been notified to the authorities protected from public disclosure?
According to article 18 of the By-Law on Market Surveillance and the Inspection of Products, the authority must protect the trade secrets of producers provided during the surveillance and inspection of products, unless those trade secrets put the public in serious and urgent danger.
11 – May information notified to the authorities be used in a criminal prosecution?
There is no regulation provided for the prohibition of the use of information notified to the authorities in criminal prosecutions.
Product recall requirements
12 – What criteria apply for determining when a matter requires a product recall or other corrective actions?
Neither the product recall nor its requirements are specifically regulated by Law No. 4,703. However, in practice, any product that is in contradiction with general safety requirements (see question 3) and contains risks for human health and the environment can be notified to the authority for a recall. Each authority regulates their own requirements and procedures for such an action to be taken in the scope of their own product framework.
13 – What are the legal requirements to publish warnings or other information to product users or to suppliers regarding product defects and associated hazards, or to recall defective products from the market?
Article 11 of Law No. 4,703 stipulates the sanctions in case there are definite indications that a product is unsafe (see question 3). If a product recall is enacted, the announcement of the withdrawal and the whole or partial disposal of the products must be done in two daily newspapers and two television channels that have nationwide distribution and an announcement shall be conducted by the relevant authority for the product in question. It is also stipulated in the said article that persons at risk can be informed by local television stations and newspapers. Finally, if the persons at risk can be identified individually, the announcement can be done by means of informing these persons directly.
14 – Are there requirements or guidelines for the content of recall notices?
Our laws only specified the guidelines for the content of recall notices in case where the notice is being sent to the Commission, to any European Union country or to the other European Union foundations related to the subject matter. These notices must be sent according to the By-Laws issued by the Undersecretariat. According to article 14 of Law No. 4,703 on The Preparation and Implementation of The Technical Legislation on Products, the opinion of an authorised authority must also be taken on the matter.
Turkish product safety regulations make no specific mention on how to send recall notices to any other authorities such as producers or distributors. In practice, a notice should include the following information:
15 – What media must be used to publish or otherwise communicate warnings or recalls to users or suppliers?
See question 13.
16 – Do laws, regulation or guidelines specify targets or a period after which a recall is deemed to be satisfactory?
There is no specific regulation provided for the time frame or target in order to deem a product recall satisfactory.
17 – Must a producer or other supplier repair or replace recalled products, or offer other compensation?
It is stated in article 4 of the Law No. 4,077 that any defective good shall be replaced or repaired by the producer. If the consumer notifies the defect to the producer within 30 days following the date of performance or sale of the product or service, then the consumer shall be entitled to rescind the contract and demand the service to be performed again or a reduction of the price proportional to the defect in the product. Where the rescission of the contract by the consumer is not justifiable due to the nature of the transaction, the consumer shall receive a price discount. The consumer may also claim for material and moral damages caused by a defective good within three years from the date on which the consumer becomes aware of the damage and its nature and 10 years from the date on which the defective product was put into the market.
According to article 6 of the Regulation on Liability for Damages Caused by Defective Goods, in order for the producer to be liable for the damages caused by a defective good (including death or injury of a person or damage caused to another good), the injured consumer must prove:
Therefore, if the consumer proves the three above-mentioned circumstance, the producer shall be liable for the damages and shall pay compensation even if he or she was not at fault for the damages.
18 – What are the penalties for failure to undertake a recall or other corrective actions?
Product recall is not mandatory for producers, it is only important for is stated in the law framework. Although it is stated in Law No. 4,703 that the authorities should undertake a recall if a product is defective or unsafe, there are no penalties if the authorities fail to undertake a recall.
Authorities’ powers
19 – What powers do the authorities have to compel manufacturers or others in the supply chain to undertake a recall or to take other corrective actions?
The authorities are responsible for carrying out conformity assessment services in compliance with the requirements of the relevant technical regulations as stated in article 9 of Law No. 4,703. The authorities do not have any powers to force a producer to recall a product since, as stated above, it is not mandatory to undertake a product recall. However, different types of administrative penalties for producers are stated in article 12 of Law No. 4,703 and these penalties can be considered as a deterrent to putting defective goods on the market.
Also, the authorities cannot specify the method of the recall. In practice, if the recall is voluntary every producer must build their own plan of action for it.
Update and trends
The most recent development in Turkey regarding product safety and product recall is the preparation of a new draft law by the authorities that corresponds with the EU Directives on this subject. The draft law aims to eliminate the dispersion of the regulations and authorities regarding the product in question and bring them together under the same roof.
20 – Can the government authorities publish warnings or other information to users or suppliers?
Government authorities are entitled to publish notices as stated in article 11 of the Regulation on the Market Surveillance and Control of Products. In fact, they are obliged to publish notices and warnings if they find the product to be defective after the surveillance tests. As it is stated in the Regulation on Market Surveillance and the Control of Products, authorities are not capable of issuing informal information. Instead, after testing, authorities are capable of issuing information to the public for organising a recall. Each authority has their own communication information on their website and also an ‘opinions and suggestions’ page for the public to post remarks or reports (for URLs of the websites see question 6).
21 – Can the government authority organise a product recall where a producer or other responsible party has not already done so?
Government authorities are obliged to instigate a recall if they see it as necessary as per article 11 of the Regulation on the Market Surveillance and Control of Products. It is also stated in article 11 of Law No. 4,703. In conclusion, government authorities may organise a product recall where a producer or other responsible party has not already done so.
22 – Are any costs incurred by the government authority in relation to product safety issues or product recalls recoverable from the producer or other responsible party?
Referring to article 11 of the Law on The Preparation and Implementation of the Technical Legislation on Products, producers are responsible for all the costs of the recall: ‘If the product concerned is found to be unsafe after the control, the public authority shall take the measures below, on condition that the expenses be covered by the producer…’ According to article 8 of the Regulation on the Market Surveillance and Control of Products, producers should also cover the expenses of the tests made by the authorities with the help of other tests, consultation or establishing documentation if the product is found defective.
23 – How may decisions of the authorities be challenged?
According to Law No. 4,703, the only sanction for failure in product liability is administrative penalties. In compliance with the mentioned law, the only possible action to argue against the decisions made by the authorities is to file a lawsuit at the administrative courts within 30 days of the date of the notification. It is stated in article 7 of the Regulation on the Market Surveillance and Control of Products that if it can be proved that the defective good was not put into market by the producer or that the defect emerged because of the technical legislation regarding the product the producers would be discharged of all liability. Article 7 of the Regulation on Liability for Damages Caused by Defective Goods also states several other reasons for the producers to be discharged of liabilities. Implications for product liability claims
24 – Is the publication of a safety warning or a product recall likely to be viewed by the civil courts as an admission of liability for defective products?
According to Turkish Law, if no specific mention to a regulation is made, then the general provisions will be applied to the matter in question. Since no specific mention has been made of the regulations concerning such a matter, under article 41 of the Turkish Code of Obligations tort liability must be considered. Article 41 states that persons who are responsible for intentional or unintentional damage to another person are also responsible for the compensation for said damages. Referring to such information, the producer is responsible for the damages caused by the defective good and a recall might be considered by the court as an admission of liability.
25 – Can communications, internal reports, investigations into defects or planned corrective actions be disclosed through court discovery processes to claimants in product liability actions?
The principle of publicity is an ongoing principle in the Turkish legal system. Therefore, in an ongoing legal case, any information regarding a case is open to the public if the case file is not made confidential to the Prosecution Office. The principle of publicity is stated clearly in article 28 of Law No. 6,100 on Civil Procedure.
