“Product Safety and Technical Regulations Law” numbered 7223 (“Law Numbered 7223”) which has been prepared in order to comply with the changes made in the European Union legislation in our country and to eliminate some gaps in practice and to replace the “Law on the Preparation and Application of Technical Legislation” numbered 4703 (“Law Numbered 4703”) has published in the Official Gazette numbered 31066 and dated 12 March 2020. The Law will come into force 1 year after its publication, which is 12 March 2021.
Purpose of the Law Numbered 7223
The purpose of the Law Numbered 7223 is to ensure that the products are safe and comply with the relevant technical regulations, to determine the principles of market surveillance and control, the duties of authorized institutions[1], and the obligations of economic operators[2] and conformity assessment bodies, as stated in the first article of the Law.
One of the most important features of the Law Numbered 7223 is that the scope of protective regulations against the “strong” seller for “weak” consumers in the Consumer Protection Law numbered 6502 (“CPL”) has been extended by introducing protective regulations for all real/legal persons who suffer damage caused by the product. As it is explained in the rest of the article, the approach that is taken as a basis in terms of the product that causes damage in protective regulations –for people who suffer damage due to a product whether or not consumers- in the Law Numbered 7223, is quite different from the “defect” regulations taken as a basis in CPL. In other words, the regulations in the Law Numbered 7223 do not completely coincide with the “defect” and “liability against defects” regulations in the CPL.
In the Law Numbered 4703; the purpose of the Law is to determine the procedures and principles regarding the placing products on the market, conformity assessment, market surveillance and inspection and the notifications to be made regarding them. In this regard, it is seen that the scope has been extended with the new regulation.
Purview of the Law Numbered 7223 and the Concept of the “Product”
The Law Numbered 7223 covers all the products intended to be placed on the market, placed on the market, supplied on the market or available in service. Products which exported or intended to be exported to European Union member countries are considered to be placed on the market under this Law. If there is a special law regarding a product, the provisions of the Law Numbered 7223 will only be applied in cases where there is no special regulation in the special law. Second-hand products are also covered by the Law Numbered 7223.
Products which exported or intended to be exported to countries other than European Union member countries are excluded from the scope of the Law. However, it has been stated these products are required to be safe and not subject to adulteration, also marking, labeling and certification of the products should be done in a way that does not mislead the buyer.
“Product” has been defined in the Law in a way that can be interpreted quite broadly as “All kinds of substances, preparations or objects”. According to the Law Numbered 7223, products must be (i) compliant with technical regulations and (ii) safe.
One of the concepts that we see in the Law Numbered 7223 is “Risky / Risk-bearing Product” and it has been defined as: “The product that is likely to negatively affect human health and safety, workplace health and safety, consumer protection, environment, public safety and other public benefits beyond the reasonable and acceptable extent, under the relevant technical regulation or general product safety legislation, including the intended use of the product and duration of use and when it is possible, installation and maintenance requirements within the normal and predictable conditions of use of the product”.
The CPL includes the concept of “defective goods / service” and liablity of the sellers for these defective goods / service has been regulated in general. The Law Numbered 7223 includes the concept of “noncompliant product”. “Non-compliance” in the Law Numbered 7223 means that the product does not complying with the relevant technical regulation or general product safety requirements. If there is an noncompliant / risky product, the economic operators shall take the appropriate and necessary ones among the measures in the Law in a timely and effective manner to make the product compliant and to stop the product’s placing on the market when necessary, to withdraw or recall the product by respecting the principle of proportionality. Otherwise, the authorized institution may require the economic operator to take the necessary measures by setting a time limit when necessary. In cases where the product is risky, the economic operators informs the authorized institution in detail and promptly about the issues that pose a risk especially in terms of health and safety, and the corrective measures taken and their results, also announces information about these measures and the risks of the product in an effective way. In case the other measures taken are insufficient to eliminate the risk, the economic operator recalls the product spontaneously or upon the request of the authorized institution. The economic operator shall offer at least one of the following options to ultimate user[3]; (i) eliminating the problem that causes the product recall, (ii) payment of the retail value of the product at the time of delivery, or (iii)replacing the product with a safe and equivalent product in accordance with its technical regulation.
Law Numbered 4703 covers the conditions of placing the products on the market, the obligations of producers and distributors, conformity assessment bodies, notified bodies, market surveillance and inspection, the banning of the product to the market, its collection, disposal and notifications regarding these. The concept of “Product” has been defined as “All products intended to be placed on the market”. New products to be placed on the market must comply with the relevant technical regulations. It has been regulated that the provisions regarding the obligations of producers and distributors in the placing of the products on the market will be applied to the products that are intended to be put on the market by making changes, and to the old and used products imported from countries other than the European Union member countries. __ In this regard, the products that are placed on the market, supplied on the market or available in service, exported or intented to be exported to the European Union member countries and second-hand products included to the concept of “product” in addition to the products intended to be placed on the market, with the new regulation in line with the European Union harmonization process.
Liability
In the event that noncompliant / unsafe product and / or products cause damage to a person or a property, liability for material and moral damage has been imposed on the manufacturer or importer of the relevant product.
The injured person must prove the actual damage and the causal link between the damage and the non-compliance in order for the manufacturer or importer to be held liable. If more than one manufacturer or importer is liable for the damage caused by the product, they are held jointly liable. The relevant articles of the contracts that abolishing or narrowing the manufacturer or importer’s liability from the compensation arising from the product are null and void.
The damage caused by a third person’s de facto or negligence along with the non-compliance of the product does not reduce the manufacturer’s or importer’s liability for compensation. However, the right of recourse of the manufacturer or importer to the third party is reserved.
Fines from 50.000 TL upto 500.000 TL can be imposed to the manufacturers or importers who do not fulfill their obligations under the Law Numbered 7223. In addition, various fines for actors such as distributors[4] and conformity assessment bodies have been regulated.
The manufacturer or importer can be relieved of liability if they prove that; (i) It did not supply the product to the market itself, (ii) the non-compliance is caused by the intervention of the distributor or a third party to the product or from the user, (iii) the non-compliance of the product is caused by its production in accordance with technical regulations or other mandatory technical rules.
In the Law Numbered 4703, the provisions of liability are focused on the “Producer” and “Distributor”, different from the new regulations. The concept of “Producer” in this law has been defined as “A real or legal person who produces, manufactures, corrects a product or introduces itself as a producer by putting its name, trade mark or distinctive mark on the product; if the manufacturer is outside of Turkey, the authorized representative and / or importer of the manufacturer; also, real or legal person in the supply chain of the product, whose activities affect the safety of the product”. The producer must supply only safe products to the market. The concept of “Distributor” has been defined as “Real or legal person in the supply chain of the product, whose activities do not affect the safety-related features of the product”. Distributors, on the basis of the information they have, cannot supply the products that they know to be unsafe to the market and have to fulfill the obligations brought to them by technical regulations. Generally, within the framework of these regulations, fines ranging from 2.000 TL to 50.000 TL can be imposed to Producer and / or Distributor. In addition, fines for conformity assessment bodies have also been regulated. The producer can be relieved of liability if it proves that (i) the product found to be unsafe is not placed on the market by itself, or (ii) the product is unsafe due to compliance with the relevant technical regulation. __ One of the most important regulations introduced with the Law Numbered 7223 is “product-related damages” have been included within the scope of the Law and the principles of liability for these damages have been determined. In addition, it is understood that more deterrent penalties have been regulated in terms of not fulfilling the obligations stipulated in the Law, and the possibilities to relieve of liability have been extended with the new regulation.
General Overview of the Law Numbered 7223
- The obligations, liablities and sanctions of manufacturers, importers, authorized representatives and distributors have been regulated separately. In other words, unlike the Law Numbered 4703, “product safety” and “product liability” have been regulated together. For all real and legal persons who are liable for the manufacturing, placing on the market or putting the products into service, regulations have been made together under the name of “economic operators” and also separately.
- The manufacturer / importer has been made obliged to pay compensation for damages caused by an unsafe product by introducing product liability compensation.
- Export of unsafe, adulterated, expired products has been banned, and fines have been reguleted to be imposed on companies exporting such products.
- Fines have also been made applicable for internet, radio or television companies who mediate the sale of noncompliant / unsafe products by including the E-commerce within the scope of the Law Numbered 7223.
- In order to find the main liable for the unsafe product, a “traceability” regulation has been introduced, and all economic operators (including the manufacturer, the seller) have been made obliged to declare whom they bought the product and (where possible) to whom it was sold. However, the scope of existing regulations has been considerably extended in order to prevent informal production and to increase the use of products that comply with safety / technical regulations.
- The recalling has been made compulsory and economic operators have been made obliged to collect all unsafe products.
- The obligation and principles of completing the mandatory conformity assessment procedures of the products and finalizing them positively, and the responsibilities of the test / certification institutions to the relevant Ministry have been regulated.
- Regulations have been made regarding the audit procedures and principles of the authorized institutions.
Finally, it has been stated that the implementation legislation specified in Article 14 of the Law Numbered 4703 and the technical regulations put into force based on the Law Numbered 4703 will continue to be implemented provided that it is not contrary to the Law Noumbered 7223, until the regulations and procedures regarding the preparation of technical regulations and the procedures and principles regarding the determination of the institutions authorized to harmonize the European Union technical legislation and conduct market surveillance and control and that that the provisions of the “Technical Regulations Regime Decision” which came into force by the Council of Ministers Decision dated 28/1/2013 and numbered 2013/4284 regarding the compliance audits of the products subject to foreign trade will continue to be implemented until a new decision is put into effect by the President.
In Turkey, many products which do not comply with the relevant regulations have been detected and the necessary measures have been taken within the framework of existing legislation untill today. For example; trailers in the category of “Vehicles exceeding the Maximum Mass of 10 Tones” belonging to a brand were collected from the market on 03.10.2016 with the precaution of “Prohibition on the Market and Collection”. Similarly, wheeled baby cars belonging to a brand that are considered to be “unsafe” and bear risks such as cuts and injuries, have been collected by taking the “Prohibition on the Market and Collection” measure on 26.02.2019 on the grounds that the product cannot meet the basic requirements of the relevant communiqué in terms of physical and mechanical properties. __ It is obvious that the concept of product liability and the product have been extended with the Law Numbered 7223, these examples will increase and the liability for compensation for the damage caused by the product will bring along disputes related to this issue in addition to the measures taken and the fines imposed.
REGULATIONS OF THE EUROPEAN UNION AND ESTIMATION
In the justification of the Law Numbered 7223; it has been stated that as a result of developments in the European Union legislation and current demands and gaps in the practice, the following issues have been concluded to be regulated; the recall of such products if the products held by ultimate users are unsafe, traceability of economic operators in order to find responsible for noncompliant products, market surveillance and control in e-commerce and product liability compensation. In the European Union, “Product Safety” and “Responsibility for Defective Product” have been regulated separately generally.
Directive 2001/95/EC (“GPSD”) on general product safety aims to provide high product safety protection across the EU for consumer products not covered by sector-based EU harmonization legislation. In some ways, GPSD also complements the legislation provisions related to the sector. The main point of GPSD is this: Producers are liable for placing only safe products on the market.
There has been regulated a Directive 85/374/EEC on the responsibility of compensation for defective consumer products. The provisions regarding the liability of the defective product in this Directive are not based on the defective behavior of the producer, but on the defect of the product and aim to compensate for the damages caused by a defective product.
“Regulation on Liability for Damages Caused by Defective Products” (“Regulation”) published in the Official Gazette dated 13.06.2003 and it has been prepared based on the relevant provisions of the old Consumer Protection Law numbered 4077 (“OCLP”) and with the logic of implementing existing regulations regarding the protection of consumers in our country and harmonization of Directive 85/374 with the domestic law and generally, the liability of the manufacturer / producer for the defective goods has been regulated. Although the concept of defect in the Regulation was regulated on the basis of “unsafe product” in accordance with Directive 85/374, a different concept of defect has emerged between the regulation and the law because of ignoring the concept of defect in the basis law (“oCLP”). This situation has caused a contradiction between the existing regulations.
In the Provisional Article-1 of CLP, it has been stated that the provisions and regulations based on the oCLP, which has been abolished, that are not in violation of CLP will continue to be implemented until the new regulations come into force. However, after the CLP, no further regulation regulating the defect liability has been issued. In this case, even if it is concluded that the regulations of the Regulation that are not against the new law will remain in force, since the continuity condition has been regulated as “not to be against the law” it can be said that the concept of defect in the Regulation is no longer in the realm of law since it does not coincide with the CLP. Even if it is thought that the Regulation will continue to be implemented for a moment; since the Regulation has been regulated for the oCLP, unquestionably, the provisions of the law, not the Regulation, should find implemantation considering that the Regulation contains a different / unlawful concept of defect.
Reference has been made to Directive 85/374 / EEC in the justification of Article 6 of the Law Numbered 7223 which regulates the product liability compensation. However, as explained above, the concept of defective product has not been used in the Law Numbered 7223. In this regard, the concept of defect existing in terms of damages caused by defective goods in the referred Directive 85/374 / EEC is different from the concept of defect in the Turkish Code of Obligations which the seller is responsible to the buyer, and in the CLP which the seller is responsible to the consumer.
In Directive 85/374 / EEC, the concept of defect is tried to be determined by considering whether the product is safe or not. The area criteria used in determining are generally combined under “product which does not provide the safety which a person is entitled to expect”. In the CLP, defective products are products that are contrary to the contract due to the fact that they do not comply with the sample or model agreed upon by the parties at the time of delivery to the consumer or because they do not have the features that they should have objectively. In the Law Numbered 7223, the concept of “non-compliance”, which is used differently from the concept of defect, involves the non-compliance of the product with the relevant technical regulation or general product safety legislation. In the justification of Law Numbered 7223, the term “compensation arising from noncompliant product” has been used in terms of product liability. Therefore, it is seen that a different approach than both Directive 85/374 / EEC and CLP has been adopted.
In terms of liability, according to Directive 85/374 / EEC, the producer is liable to third parties, whether or not they are consumer, for any damage caused by the product. The Regulation also includes a parallel regulation. In the CLP, there is no liability for the damages suffered by third parties who are not consumers, but the consumer, who is the party of the contract, can hold the producer liable for the damages to his / her physical integrity or property. In the Law Numbered 7223, if the product causes a damage on a person or a property, the manufacturer or importer of this product is obliged to remedy the damage. One of the common points in all is that non of them discriminated material-moral damages.
In this case, different concepts such as defective product, unsafe product and noncompliant product and different results related to these concepts are encountered in the current regulations. It is estimated that these concepts, which do not exactly match but resemble each other, may cause meaning and concept confusion in practice, this confusion may be overcome with the secondary legislation to be enacted under the Law Numbered 7223 and the disputes that will emerge after the new regulations are started to be implemented as of 12.03.2021 will be formative in this sense.
[1] Authorized Institution: Real or legal persons resident in Turkey appointed in writing by the manufacturer under this Law and other relevant legislation to fulfill certain obligations on manufacturer’s behalf. (Law N.7223, Art. 3 / (1).ş)
[2] Economic Operator: Manufacturer, authorized representative, importer, distributor or other real or legal persons who have liability for the manufacture, placing on the market or placing the products into service within the scope of the relevant technical regulation. (Law N.7223, Article 3 / (1).f)
[3] Ultimate User: Real or legal persons residing or settled in Turkey who own a product as a consumer or for industrial or professional activity other than trade, business, craft and professional activities. (Law N.7223, Article 3 / (1).h)
[4] Distrubutor: Real or legal person other than the manufacturer or importer, who is in the supply chain and has the product on the market. (Law N.7223, Article 3 / (1).ç)