THE RIGHT OF WITHDRAWAL UNDER REGULATION ON DISTANCE SELLING CONTRACTS (DECEMBER 2014)

The Regulation on Distance Selling Contracts ("Regulation") regulates the procedures and the principles of the distance selling contracts. The Regulation bases on Article 48 and 84 of Consumer Protection Law numbered 6502 ("CPL"). The Regulation on Distance Selling Contracts published in the Turkish Official Gazette on 27.11.2014 and shall enter into force on 27.02.2015 which is three months’ period as of the publication date. 

The most significant amendment is the extension of the exercise period of right of withdrawal when compared to the annulled Regulation. The right of withdrawal is regulated under Article 9 of the Regulation. Pursuant to this article, consumers are entitled to exercise right of withdrawal within 14(fourteen) days without providing any reason and without paying any penalty. Right of withdrawal is exercisable from; 

the date of conclusion of the contract for services ,
the date of delivery of the goods to the consumer or to the third person appointed by the consumer for delivery purposes. 

Besides, consumers are entitled to exercise the right of withdrawal within the period between conclusion of the contract and delivery of the good.

The seller or the supplier is obliged to prove that; consumers have been informed via certain information about their right of withdrawal under Article 10 of the Regulation.In case of failure in informing of the consumer(s) by the seller or the supplier, the right of withdrawal period will be exercisable within 1(one) year period following the expiry date of the right of withdrawal period. 

Exercise procedure of right of withdrawal is regulated under Article 11 of Regulation. According to this article; Consumer has to address the withdrawal notice to the SELLER via written notice or permanent data storage device within the prescribed period in order to exercise right of withdrawal. Consumers can use standard form enclosed to Regulation in order to exercise right of withdrawal or submit his/her statements which includes explicit intent of right of withdrawal. In case exercise of right of withdrawal through internet is allowed for the consumers, seller or supplier is obliged to confirm the delivery of right of withdrawal demand of the consumer and then inform the consumer immediately. Consumer is obliged to prove exercise of right of withdrawal. 

The obligations of seller or supplier are regulated under the Article 12 of Regulation. Seller or supplier is obliged to return all the payments including delivery cost (if exists) to consumers within 14(fourteen) days following the delivery date of withdrawal notice served by the consumer. Furthermore, the mentioned payments should be performed in a way which is in conformity with consumers’ payment and without any cost or obligation attributable to the consumer. 

Seller should return any bills issued in return of price of the good/service after exercise of right of withdrawal. In case the seller shall not return the bills to the consumer, the consumer is entitled to apply to the court. Any execution proceeding shall be cancelled which initiated by the seller contrary to the preliminary injunction rendered by the Court regarding there lated bills.

Decision of 12th Civil Camber of Supreme Court dated 19.07.2006 numbered 2006/11649(file number) 2006/16179 (decision number) is as follows;

"The execution file has to be cancelled which is initiated contrarily to the preliminary injunction rendered by the Consumer Court in order to prevent initiation of execution proceedings, in order to prevent payment, endorsement and protest of the bill”.  

Obligations of consumers related with exercise of right of withdrawal are stipulated under Article 13 of the Regulation. Pursuant to this article, unless otherwise specified by the seller or supplier, consumer is obliged to return the goods to seller/supplier within 10(ten)days following the exercise of right of withdrawal. Consumer shall not be responsible for any defects arisen from normal use as per technical specification, instructions and user manuals. 

In case of exercise of right of withdrawal, the subsidiary contracts related with distance selling contracts shall also terminate as per Article 14 of the Regulation. Consumers shall not be responsible for any cost, compensation or penalty in case of normal use as per technical specification, instructions and user manuals. Seller or supplier is obliged to inform the other party of the subsidiary contract about the exercise of right of withdrawal by the consumer. 

The exceptions of the right of withdrawal are regulated under Article 15 of the Regulation. Unless otherwise agreed by the parties, contracts which are excluded from exercise of right of withdrawal are stipulated under the mentioned article. Some of the significant contracts are as follows:

Contracts related with the goods which are prepared in accordance with demands or individual needs of consumers, 
Contracts related with delivery of perishable goods,
Contracts related with delivery of periodical publications such as newspapers and magazines which are not provided within the scope of subscription agreements,
Contracts related with accommodation, moving properties, car rental, procurement of food and beverage which should be executed within certain date or period and contracts concluded with the aim of entertainment or resting in order to utilize the spare time.

Consequently, the Regulation here above which mainly being focused on the provisions of right of withdrawal, shall enter into force on 27.02.2015 namely 3 months’ period after the publication date. Thus, the previous Regulation on Distance Selling Contracts shall be applicable until the enforcement date of the new Regulation.