Turkey: Product Liability

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This country-specific Q&A provides an overview to product liability laws and regulations that may occur in Turkey.

This Q&A is part of the global guide to product liability. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/product-liability/

  1. Please summarise the main legal bases for product liability

    Product regulation and liability laws have an important place in Turkey and are, on the whole, aligned with EU law.

    Turkish liability laws are divided into two main categories covering product liability and product safety, respectively. With regard to product liability, the Law on Consumers’ Protection (6502) essentially implements the EU Product Liability Directive (85/374/EEC). The key objective of the law is to hold various groups (eg, producers and sellers of goods) liable for any damages caused by defective products. In relation to the protection of consumers’ rights, the Law on Consumers’ Protection is fully compliant with private law.

    With regard to product safety, the Law on the Preparation and Application of Technical Legislation for Products (4703) implements the EU General Product Safety Directive (2001/95/EC). The law provides specifications and other compliance criteria for all products – whether consumer goods or industrial products – in order to prevent damage to users. The law generally contains administrative regulations.

  2. What are the main elements which a claimant must prove to succeed in a strict liability type claim for damage caused by a defective product?

    Contrary to the EU Product Liability Directive (85/374/EEC), under the Turkish Code of Obligations (6098), the indemnification obligation arising from defective or flawed products is a fault-based liability – the code provides no strict liability due to a defective product. Accordingly, a party which has suffered damage due to a defective product must prove:

    • the damage;
    • the causality; and
    • the fault of the manufacturer or concerned party.

    By contrast, under the Law on Consumers’ Protection, any party which suffers damages as a result of a defective product may claim these damages from the producer of the product in question without the need for proof of fault. According to the law, the damages arising from defective products are regulated as strict liability. In such cases, the producer or manufacturer may be relieved from liability if it provides proof of relief. A specific regulation governs such cases.

  3. With whom does liability sit? If there is more than one entity liable, is liability joint and several?

    Liability depends on the law and the damages claimed. A key distinction may be made between product liability and product safety law. Under the Law on the Preparation and Application of Technical Literature for Products (which governs product safety), the producers, authorized representatives, importers and distributors of a product are responsible for compliance with the regulations specified in that law. Under the same statute, assemblers, installers, users (eg, users of products kept in a workplace) and sellers which may be indirectly called producers are also responsible for the safety of products and their compliance with technical specifications.

    By contrast, the Law on Consumers’ Protection defines product liability in a narrow sense, limiting it to the producers, importers and sellers of products, and the providers of services.

    The Law on Consumers’ Protection also distinguishes between the producer’s liability and the seller’s liability. For example, refund of a defective product may not be claimed from the producer or importer, but may be claimed from the seller. However, the seller is not responsible for any damage arising from a defective or flawed product; instead, the producer or importer is liable.

  4. Are any defences available? If so, please summarise them.

    Under the Regulation on Liability for Damages caused by Defective Products (25137), the producer or manufacturer of a product may not be held liable for damages where:

    • the product has not been launched;
    • the product has not been produced for sale or in the course of commercial activities;
    • considering all facts and circumstances, the product is found to have had, at the time of launch, no defect that caused the damage;
    • the technical specification of the product has caused the damage; or
    • the scientific and technological knowledge at the time of the product launch meant that the defect could not be perceived.

    In addition, the producer or manufacturer of a part, forming the whole, is not responsible for the design of the final product or the instructions of use of such product.

    An amendment to the Law on Consumers’ Protection (6502) has been proposed to exempt sellers, producers and importers from liability with regard to, among other things, the expiry of a warranty term and user errors.

  5. What is the limitation period for bringing a claim?

    While the administrative fines provided for in the Law on the Preparation and Application of Technical Literature for Products (4703) may be imposed by authorized institutions, a person who has suffered a material or non-material damage, or bodily injury may claim these amounts:

    • within two years of the date of becoming aware of the damage in accordance with the Code of Obligations (6098) and indemnification obligation; and
    • in any case, within 10 years of the start of the action causing damages.

    Where the damage has arisen from an action for which criminal law proposes a longer statute of limitations, the longer statute of limitations shall apply.

    Within the framework of the Law on Consumers’ Protection (6502), unless a longer period is specified in the law or the contract between the parties, liability from a defective product is subject to a two-year statute of limitations, starting from the date of delivery of the goods to the consumer, even if the defect emerges subsequently. Where the defect has been hidden through gross negligence or fraud, the statute of limitations does not apply. Where the defect constitutes a crime under the Criminal Code, the statute of limitations is:

    • 30 years for crimes requiring life imprisonment without parole;
    • 25 years for crimes requiring life imprisonment;
    • 20 years for crimes requiring at least 20 years’ imprisonment;
    • 15 years for crimes requiring five to 20 years’ imprisonment; and
    • eight years for crimes requiring no more than five years’ imprisonment or a judicial fine.
  6. To what extent can liability be excluded (if at all)?

    Turkish law does not provide for the possibility to disclaim liability in advance. However, under the Regulation on Liability for Damages Caused by Defective Products, the producer, manufacturer or importer may not be found liable in the following circumstances:

    • The product has not been launched.
    • The product has not been produced for sale or in the course of commercial activities.
    • Having considered all facts and circumstances, at the time of launch, the product did not present the defect that caused the damage.
    • The technical specification of the product caused the damage.
    • The state of the scientific and technological knowledge at the time of the product launch meant that the existence of the defect could not be perceived.

    In addition, the producer or manufacturer of a part, forming the whole, is not responsible for the design of the final product or the instructions of use of such product.

  7. What are the main elements which a claimant must prove to succeed in a non-contractual (eg tort) claim for damage caused by a defective product?

    A party who has suffered damages (whether material or non-material) or bodily injury because of a defective or flawed product may bring a claim under:

    • the Turkish Code of Obligations;
    • the provisions under the Code of Obligations (6098) states that the damaged party must prove the unlawful act, damage, omission and relation of causality,
    • the Turkish Criminal Code;
    • where an unsafe or defective product causes death or injury, liability may be triggered:
    • for manslaughter under Article 85 of the Criminal Code; or
    • for causing injury under Article 89 of the Criminal Code.
  8. What types of damage/loss can be compensated and what is the measure of damages? Are punitive damages available?

    Tangible damages can be compensated in monetary terms. In order to compensate this damage, the claimant must prove that loss or damage occurred. In Turkish jurisdiction, courts frequently demand expert examination to calculate the amount of the damage. When calculating the compensation the degree of fault, consent of injured party to the action which caused the loss, other circumstances.

    The courts rarely allow punitive damages. Instead:

    • the relevant authorities order administrative fines under the Law on the Preparation and Application of Technical Legislation for Products; or
    • where material or non-material damages are proven, the courts can order indemnifications under the Code of Obligations (6098) or the Criminal Code.
  9. How are multiple tortfeasors dealt with? Is liability joint and several? Can contribution proceedings be brought?

    With respect to the loss caused by more than one person, Article 61 of the Turkish Code of Obligations No. 6098 was amended. If more than one person causes a loss together or if they are liable for the same damage for a variety of reasons, the provisions concerning several responsibilities shall apply. The injured party can apply to any person responsible for the whole damage caused by the joint liability. Tortfeasors are obliged to cover the entire debt and then recourse the joint responsible. The essence of the defect and the danger intensity it creates, are taken into consideration when distributing compensation among the total debtors responsible for the same damage.

    In this context, all the tortfeasors and any party who can be asked for recourse can join the case. Notice of the case is possible for the parties in order to manage the recourse process. One several tortfeasor who pay the debt can also recourse to the others in terms of their defects. The responsible party, who has not been notified to the case, has the possibility of rejecting the claims of recourse because it has not been defended at the court.

  10. Are any defences available? If so, please summarise them.

    Under the provisions of the Code of Obligation (6098), any responsible party can raise a defense that they are not responsible for the tort with respect to relation of causality or they may reveal that it is not their fault.

  11. What is the limitation period for bringing a claim?

    While the administrative fines provided for in the Law on the Preparation and Application of Technical Literature for Products (4703) may be imposed by authorized institutions, a person who has suffered a material or non-material damage, or bodily injury may claim these amounts:

    • within two years of the date of becoming aware of the damage in accordance with the Code of Obligations (6098) and indemnification obligation; and
    • in any case, within 10 years of the start of the action causing damages.

    Where the damage has arisen from an action for which criminal law proposes a longer statute of limitations, the longer statute of limitations shall apply.

    Within the framework of the Law on Consumers’ Protection (6502), unless a longer period is specified in the law or the contract between the parties, liability from a defective product is subject to a two-year statute of limitations, starting from the date of delivery of the goods to the consumer, even if the defect emerges subsequently. Where the defect has been hidden through gross negligence or fraud, the statute of limitations does not apply. Where the defect constitutes a crime under the Criminal Code, the statute of limitations is:

    • 30 years for crimes requiring life imprisonment without parole;
    • 25 years for crimes requiring life imprisonment;
    • 20 years for crimes requiring at least 20 years’ imprisonment;
    • 15 years for crimes requiring five to 20 years’ imprisonment; and
    • eight years for crimes requiring no more than five years’ imprisonment or a judicial fine.
  12. To what extent can liability be excluded (if at all)?

    Under Turkish jurisdiction, there are several circumstances that may exclude liability;

    • consent of the injured party,
    • superior public benefit,
    • usage of authority based on public law,
    • usage of authority based on private law,
    • self-defense & necessity circumstances.
  13. Does the law imply any terms into B2B or B2C contracts which could impose liability in a situation where a product has caused damage? If so, please summarise.

    For B2B contracts it is possible to impose liability when a product causes damage. But the regulations are totally different for B2C contracts. Article 8 of the Regulation on Liability in Damages Caused by the Defective Goods clearly indicates that clauses which limit or eliminate the obligations of the manufacturer or producer arising from Law on Consumer’s Protection are invalid.

  14. What types of damage/loss can be compensated and what is the measure of damages?

    Turkish Code of Obligations has determined different types of contracts like sale contracts, rent contracts, exchange contracts, loan contracts etc. The damages caused by the defective product vary according to the provisions under these types of contract. In general, for B2B contracts provisions under types of contracts are taken as a basis in order to determine the damage. If the contract has been made with a consumer, the provisions are more detailed and in favor of the consumer according to the Law on Consumer’s Protection.

  15. To what extent can liability be excluded (if at all)?

    It is possible to limit the liability with an agreement between buyer and the seller. However, such agreement is limited in accordance with the Turkish Code of Obligation. In case of intent or gross negligence of the seller, it is not possible to limit contractual liability.

  16. Are there any recent key court judgements which have had a significant impact on the approach to product liability?

    As mentioned, Turkish liability law has developed as two branches – product liability and product safety. Product liability is essentially a field of private law; accordingly, legal developments are slow. The Law on Consumers’ Protection – the primary legislation governing product liability – came into force on 28 November 2013; as a second wave of codification in this field, it has been applied with established judicial decisions for many years.

    Product safety, by contrast, is governed by government decrees within the framework of the Law on the Preparation and Application of Technical Literature for Products, which came into effect on 11 July 2001, and its implementing regulations. Accordingly, this field sees frequent developments as various branches of the administration issue new regulations, decrees and communiques. For example, the Ministry of Commerce has promulgated numerous decrees concerning, among other things, market supervision and control of products bearing the CE mark. The ministry has also increased controls on the safety of imported products by establishing certain technical requirements that imported products must meet before they can be placed on the Turkish market. In this regard, the Ministry of Commerce publishes yearly communiques concerning certain product groups. Similarly, the ministry has proposed certain controls over the safety of exported agricultural products in order to protect Turkish trademarks on international markets.

  17. What are the initial litigation related steps you should take if you are facing a product liability claim or threatened claim?

    A distinction must be made between a claimant who is not a consumer and a claimant who is a consumer. In the first case, the general courts have jurisdiction. In the second case:

    • where the amount of the dispute (claim, damage or product value) is less than TL5,650 (approximately €870), the county consumer arbitration panels have jurisdiction;
    • where the amount of the dispute is between TL5,650 and TL8,480, the province consumer arbitration panels have jurisdiction; and
    • where the amount of the dispute is over TL8,480, the consumer courts have jurisdiction.

    According to the Code of Civil Procedures (6100), the parties need not be represented by an attorney in order to file a case. In addition, consumers are exempt from paying the court fee (regulated under the Charges Law (492)); they must pay only for the court mail expenses and expert expenses, totaling around €200.

  18. Are the courts adept at handling complex product liability claims? Are cases heard by a judge or jury?

    Turkish Courts are sufficient to meet the complex product liability claims, in order to adjudicate in most fair way, the courts receive expert examination more than once if needed. These experts are generally academics who are selected from world-renowned Turkish Technical Universities. Besides that, Code of Civil Procedure allow parties to take an expert opinion and if requested, parties’ expert may ask question to the court-appointed expert at the hearing.

    The Turkish Civil Court system does not utilize a jury system. Instead, a judge or usually panel of three judges resolves the disputes.

  19. Is it possible to bring a product liability related group action? If so, please summarise the types of procedure(s) available

    Under consumer law, the Ministry of Commerce and consumer organizations are entitled to file class actions, but generally under Turkish law, no class actions are formed on an opt-in or opt-out basis.

  20. How are cases typically funded? Can lawyers charge success fees? Is third party funding permissible?

    In product liability cases, the Ministry of Commerce pays for the service and expert fees when the consumer arbitrator panels rule against the consumer. Where the panels find in favor of the consumer, the losing party pays the service and expert fees in accordance with the Law on Collection Procedure of Public Receivables (6183); such fees are recorded as revenue to the budget. Where a consumer court overturns such a decision on appeal, the consumer pays attorneys’ fees according to a tariff set out in the Law on Consumers’ Protection (6502), as well as trial expenses. Where a consumer court upholds a decision in favor of the consumer, the losing party is ordered to pay trial expenses and, if the consumer is represented by an attorney, attorneys' fees according to the minimum attorneys' fee tariff. In the general courts, the losing party must pay attorneys’ fees and trial expenses in accordance with the Advocacy Law (1136) and the Minimum Attorneys' Fee Tariff determined by the Turkish Bar Union.

    A success fee can be agreed for the lawyers but it cannot be more than %25 of the value of the claim or the final judgment.

    Turkish law does not provide any regulation for the payment of trial expenses and court fees by a third party.

  21. How common are product liability claims and what factors influence their frequency?

    In Turkey, we can easily say that awareness on product safety constantly evolving. At this point, the practices related to Consumer Law have been properly implemented in terms of defective goods and services and many cases are continues. Even in order to avoid the intensity of this issue, Consumer Arbitration Committees were established by the government.

    For Product Safety issues, the control is provided by provisions taken by the Government, not by the lawsuit filed by the public. Therefore, there is no known famous case in Turkish jurisdiction with a huge compensation.

  22. What are the likely future developments in product liability law and practice? To what extent is the suitability of the law being challenged by advances in technology?

    Recently, the Ministry of Commerce attaches great importance to product liability and product safety. In this respect, there is a draft of a new product safety regulation with is expected to come out very soon. This regulation which includes provisions for follow-up of products more stringent in terms of product safety and which also brings important innovations in the digitalization of products and services.

    As the digitalization process is quite fast, it will be the most challenging situation for existing regulations to remain behind this technology. It is obvious that the damages and other administrative arrangements caused by digitalized products and services will have difficulty in catching the day.