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Yavuz & Uyanik & Akalin’s Murat Uyanik on the importance of the rule of law and the right to legal certainty in Turkish law

Labour Law in Turkey is one of the areas of law in which the most lawsuits are filed and with the highest number of file transfers to the Supreme Court, until the recent launch of the Appeal Courts. This matter is confirmed with the data published by the Ministry of Justice at the end of 2019. According to the relative data, 1,513,943 labour cases were filed between the years 2012 and 2019. According to the aforementioned data, the number of ongoing cases at the end of the year 2019 is 543,692. Upon the multiplying increase in the number of labour cases each year and the Supreme Court’s failure to bear the litigation burden, it has also been observed that the number of chambers coping with labour law disputes has increased to three in the last decade.

As part of the European Union harmonisation process, the Turkish parliament has adopted the Product Safety and Technical Regulations Law (the PSTRL). The PSTRL, published on 12 March 2020, has entered into force one year after its publication just recently, on 12 March 2021. Just before the PSTRL entered into force, the General Product Safety Regulation was also published. The provisions regarding PSTRL are prepared considering the European Union Product Liability Directive dated 1985. By the promulgation of PSTRL, which has been expected for a long time and is an important part of the EU harmonisation process, the product liability has been regulated as a whole through a general act of parliament. The doctrine, which was in the expectation of a law that complies with EU regulations, has long advocated the need of regulating the manufacturer’s absolute responsibility not only to the consumers but also to all third parties.

PSTRL’s main purpose is to regulate in detail the requirements in relation to the safety of all kinds of products, and in case of contradiction with such requirements to ensure that the responsible party, such as the manufacturer or importer, provides appropriate compensation for the damages caused by the non-conforming product to the customer’s health or property.

The products that are exported or aimed to be exported to the EU member states are deemed presented to the market within the scope of this law. On the other hand, the products that are exported and planned to be exported to countries other than those within the EU are excluded from scope of PSTRL. Nevertheless, these products must also be safe, not subject to adulteration, and the marking, labelling and certification of the product must be done in a manner that will not mislead the buyer.

The responsible persons from product liability are defined in PSTRL as the manufacturer or importer of the product.

Obviously, not only consumers can be harmed by a product, but non-consumers also need protection as well. Despite this obvious need of a general rule, there is no regulation in law on the Protection of the Consumer and also in the Turkish Code of Obligations regarding the product liability. In fact, PSTRL was adopted as a response to the urgent need of a special regulation of the product liability, and the gap related to this matter under Turkish law. Thus, the standard of the EU that the responsibility of the manufacturer is not only towards the consumers, but against all third parties, has been introduced in Turkey as well.

PSTRL uses the concept of inappropriate product instead of failure or defective product as a condition of the product liability to be triggered. In accordance with the PSTRL, no limitation has been made in the responsibility of the manufacturer, in terms of both personal and property damage, or pecuniary and non-pecuniary damage.

It was designated in article 21 of the PSTRL how the liability of the manufacturer or importer will be extinguished as well. Since the product is considered safe as a presumption pursuant to PSTRL article 5, the manufacturer or importer can avoid responsibility by proving the product’s compliance with the technical requirements regarding human health and safety. So the manufacturer or importer companies should prepare their set of arguments towards potential claims, that has to be based on the ‘compliance with technical requirements’.

In addition to the above, there are other remarkable novelties in PSTRL that especially aim to ensure the safety of consumers including in e-commerce. Pursuant to article 17 of PSTRL, access to the web pages that sell or advertise inappropriate products will be denied. Furthermore, in order to maintain transparent background for the consumers, the names of all of the persons in the supply chain will be recorded. This traceability will also provide an opportunity to prevent informal economy. Once a product is detected to be inappropriate, these products will be recalled from the market and this will provide the safety of the consumers.

The spectrum of the PSTRL is so broad that, the companies that are no party to any contract with the damaged person, such as car manufacturers, durable goods manufacturers, spare parts manufacturers, etc. would be legally responsible without question. In some cases insurance companies may request their recourse claims that have resulted from adulterated goods, from manufacturers or importers. Therefore global manufacturing companies and their importer affiliates may face direct claims from Turkey within the scope of the PSTRL. We hope that with PSTRL, the safe economic conditions for both national and foreign investors globally will be established and not only consumers, but also everyone who suffer from the hazardous effects of inappropriate products will be protected.