Product Liability & Safety 2024 Comparisons

Turkish product safety legislation is underpinned by three fundamental pillars, complemented by specific regulations for certain industries and products:

• The main body is the Turkish Code of Obligations, No 6098 (TCO), which is the backbone of civil law, together with Turkish Civil Code and Turkish Code of Commerce. Product safety matters are generally based on the tort law and contract law provisions of the TCO, or are interpreted in its context.
• Whenever a product safety matter is connected with consumers, the terms of the Consumer Protection Law No 6502 (“Consumer Protection Law” or the CPL) would be applicable as a specific regulation. The CPL is an adapted version of EU’s Acquis Communautaire.
• Law No 7223 on Technical Regulations and Product Safety (“Product Safety Law”) covers the product safety terms as a legislative text, which again closely mirrors the EU acquis.

These three pillars collectively establish the framework for Turkish product safety law, encompassing contractual, tortious, and strict liability. Courts apply these principles based on the specific circumstances of each claimant’s case.

Contractual liability, the most prevalent form, typically arises from a contractual relationship between parties, such as a manufacturer and a customer. It requires a breach of contract terms, such as non-compliance with agreed-upon specifications or objective technical regulations. Notably, contractual liability is fault-based, necessitating proof of negligence or wrongdoing.

The Turkish Code of Obligations extends strict liability to employers, animal/pet owners, and building owners for damages caused by their employees, animals/pets, and buildings, respectively. Additionally, operators and owners of high-risk businesses are subject to strict liability for damages resulting from their operations, regardless of prudent behaviour.

Product liability claims may also be based on tort law, especially if there is no contractual relationship between the manufacturer and the claimant. This generally applies if a product causes damage to a property, or death or injury to persons. In this case, the claimant may make a claim against the manufacturer (or, as the case may be, the importer) for damages suffered due to the faulty product. The burden of proof rests with the claimant, and liability is fault-based.

If a natural or legal person has acquired a product or service for non-profit purposes, then they would be considered a consumer and therefore be subject to the terms of the Consumer Protection Law. Even though the liabilities under the Consumer Protection Law are still fault-based, it offers certain advantages to consumers, such as shifting the burden of proof to the vendor/manufacturer for defects occurring within the first six months after purchase and holding the manufacturer/importer liable for the faults of their authorised sellers or service providers.

The terms of the Product Safety Law would always be applicable for any product safety claim, whether there is a contractual relationship between the claimant and the manufacturer/importer/seller, or the claimant is a consumer or merchant. When applying the Product Safety Law rules, the claimant must prove the existence of a production or design defect in the product that caused the damages. The manufacturer or the importer would then be held liable for all damages due to product defects.

Liability exclusion, or indemnification provided before damage occurs, is prohibited.

For food, pharmaceuticals and automotive products, specific secondary regulations are in place that establish strict liability conditions.

In recent years, the Court of Appeals has significantly broadened the scope of product liability in favour of consumers/customers. Notably, the court ruled that the statute of limitations does not apply to hidden defects, effectively extending the limitation period to ten years from the product’s delivery. Moreover, the court shifted the burden of proof to the manufacturer once the claimant establishes that the damage resulted from the defective product. This means that the manufacturer must prove they were not negligent.

Generally, the Ministry of Industry and Ministry of Commerce are the two main regulators (authorities) for product safety matters.

While the Ministry of Industry focuses on the manufacturing aspect, ensuring compliance with the technical regulations and initiating recalls for serial defects. Conversely, the Ministry of Trade concentrates on the market side, preventing the entry of defective goods into the market and restricting their marketing. In essence, the Ministry of Industry adopts a bottom-up approach, while the Ministry of Trade regulates with a top-down approach.

Apart from the two main authorities, specific ministries or semi-independent agencies have their own surveillance and regulatory responsibilities. The key regulatory bodies and their respective legislation include the following:

• The Ministry of Commerce has a series of communiques for import inspection and market surveillance of almost all types of products, including medical, agricultural, textile, etc (Communiques 2023/01 to 2023/27 on Product Safety and Inspection).
• The Ministry of Industry implements extensive regulations for the inspection of industry goods (General inspection and market surveillance regulation and Special inspection and market surveillance regulation for automotive products).
• The Pharmaceuticals Law No 1262 establishes specific rules for pharmaceuticals and vaccines, serving as the basis for detailed secondary legislation and authorising the Ministry of Health and its semi-autonomous agencies.
• The General Directorate of Customs has the authority to test all products imported to Turkey for homologation and standardisation compliance.
• The Ministry of Agriculture and Forestry conducts inspections on foods, substances and materials intended to come into contact with foodstuffs.

The authority of those government bodies varies depending on the nature of the product.

For strictly regulated products like pharmaceuticals, food, or automotive products, the relevant authority acts as the approval agency. Manufacturing or importing these products necessitates homologation and approval from these authorities.

The second tier of the regulators’ authority involves monitoring and surveillance of the market. In this capacity, they collect samples from the market and conduct tests to ensure compliance with product safety requirements.

In the event of a product safety issue, these government bodies have the power to order the suspension of marketing of such products, the correction of defects, and the withdrawal of defective products from the market, including both voluntary and compulsory recalls.

The final level of regulatory intervention includes the cancellation of homologation, type/product approvals, orders to cease manufacturing, and the issuance of monetary fines. These government bodies also hold the authority to bring matters before consumer courts to protect the overall interests of consumers and even involve public prosecutors in cases of criminal allegations.

The Product Safety Law requires that manufacturers, importers and distributors (collectively referred to as the “Enterprise(s)”) continuously test and monitor their products.

Manufacturers are obligated to continuously monitor, inspect, and test products introduced to the market, maintain records of complaints and non-compliant or recalled products, and inform their distributors and customers accordingly. They must also take corrective measures to bring the product into conformity and, if necessary, stop placing it on the market, withdraw it, or initiate a recall.

Manufacturers are required to inform end customers of identified defects, the recall process, and intended corrective measures (replacement, sales contract rescission, or free repair) and submit bi-monthly reports to the Ministry. Informing stakeholders in the supply chain alone is insufficient.

The learned intermediary principle is not applicable.

If the Ministry identifies potential risks, it will warn the Enterprise to take necessary precautions, including a recall. If the Enterprise fails to take action or initiate a voluntary recall, the Ministry can implement compulsory recalls and remove the products from the market. For products marketed under a specific license or permission from the Ministry, the Ministry may also suspend such license or permission, effectively banning the product’s marketing.

Therefore, a recall can be initiated by the manufacturer, importer, distributor, or the authority, either automatically or upon an individual’s claim.

A recall also necessitates that the Enterprise announce the campaign on its website’s front page, directly notify known customers via registered mail, and in some cases, through mandatory advertising.

Initiating a recall does not absolve the manufacturer/importer from liability for damages suffered. They remain liable for compensation, provided the claimant proves a causal link between the damage and the defect. Thus, a recall alone does not automatically trigger liability; the existence of damage due to the defect is also required.

Under the Product Safety Law, the manufacturer (or its authorised representative), the importer and the distributor (collectively referred to as the “Enterprise(s)”) are obliged to immediately inform the competent market surveillance regulator once it is identified that a product poses a risk to health and safety or is not compliant with regulatory standards. This notification requirement is risk-based, meaning it does not necessitate an incident to occur before precautions are taken.

The Enterprise is obliged to include in its notification to the regulator:

• the precise identification of the concerned product;
• a comprehensive description of the identified risk;
• available information pertaining to the traceability of the product; and
• the measures that are necessary to prevent the occurrence of the identified risks.

Under the regulations, the Enterprises are expected to take all necessary actions and precautions immediately. Although the definition of “immediate” is not explicitly stated, Enterprises are expected to act in accordance with the severity of the risks, akin to the response of a diligent and prudent businessperson.

While there are no formal requirements for reporting to authorities, the government has digitised most of its services. In practice, this necessitates Enterprises and individuals to initiate and track all proceedings through the relevant regulatory bodies’ dedicated websites or databases. These platforms are designed with a step-by-step approach, guiding Enterprises through the notification process.

The Product Safety Law provides for several types and levels of administrative fines and penalties due to breach of product safety obligations. A manufacturer, importer or distributor is subject to administrative fines and penalties if it has breached product safety obligations, unless they can prove they took all necessary precautions before regulatory intervention and rectified the failure.

Even though there is no provision that clearly addresses criminal liability due to defective products, the case law refers to a number of criminal offences relating to product liability for specific matters.

For instance, defective food and drug products may be interpreted as selling, supplying, or keeping food materials or drugs that endanger human health and life (Turkish Criminal Code (TCC) 186) or producing, providing and selling poisonous products without obtaining necessary permissions (TCC 193).

Additionally, several criminal allegations have been raised, though without successful outcomes to our knowledge, regarding smuggling and fraud. These allegations are based on the argument that product defects indicate false declarations in product conformity documents, leading to smuggling during customs clearance (for imported goods) and forgery of private documents.

It should be noted that such allegations may prompt authorities to take stricter measures during market surveillance activities, including mandatory recalls or suspension of marketing activities.

The Product Safety Law is the main legislation governing product liability. However, extensive case law exists for product liability matters resolved under the tort law provisions of the TCO. Therefore, the terms of the Product Safety Law and the TCO can be taken as the main causes of action for product liability claims.

Apart from general provisions, specific legislation for certain industries, such as pharmaceuticals, agriculture, or food products, may also be applicable.

Liability under the Product Safety Law is triggered when a defective product causes death, injury, or harm to a person’s health, or damage to property. Claims may be brought against the manufacturer, those representing themselves as the manufacturer, importer, distributor, or seller.

As a general principle, the claimant bears the burden of proving the defect, damage, and causation. Both the TCO and the Product Safety Law adhere to this approach.

The Consumer Protection Law, however, shifts the burden of proof to the vendor, service provider, importer, or manufacturer for claims raised within the first six months of product or service delivery.

In specific cases, such as under the Pharmaceuticals Law or in situations involving strict liability for the supply of dangerous goods, courts may presume liability on the manufacturer’s part.

These rules, particularly those under the Pharmaceuticals Law or concerning dangerous goods like petroleum gas or electricity, which are subject to strict liability according to case law, may require the manufacturer/vendor to prove they acted with due care and that the product complied with all relevant standards.

Any person, natural or legal, that suffers damage due to a defective product may bring a claim under the Product Safety Law or the TCO.

Each claimant must initiate a separate lawsuit, as class action lawsuits are not recognised within the Turkish judicial system.

However, while class actions are not available, the Consumer Protection Law empowers consumer associations and foundations to file determination cases or seek preliminary injunctions to safeguard the interests of their members or the groups they represent.

Also, the Ministry of Commerce, relevant authorities and consumer associations may file lawsuits for declaratory judgment actions or preliminary injunction for prohibition or suspension of unlawful consumer-related matters under the Consumer Protection Law.

Under the TCO, the time limit for contractual obligations is ten years.

For damages arising from tortious acts, the limitation period is two years, commencing when the claimant becomes aware of (i) the damage; and (ii) the identity of the responsible person. This period expires five years after the incident under the tortious act, unless the act also constitutes a crime, in which case criminal statute of limitations rules apply (typically longer than civil limitation periods).

The Consumer Protection Law establishes a two-year limitation period for consumer rights related to product defects.

The Product Safety Law provides a three-year time limit for seeking reimbursement for damages suffered due to unsafe products.

However, jurisprudence is evolving towards an understanding that the statute of limitations does not apply to hidden defects, thereby extending the general period to a ten-year limit in accordance with general principles.

Under civil procedural law, the courts of first instance within the defendant’s domicile have jurisdiction.

The TCO, however, allows the claimant to choose the competent court either at the defendant’s domicile or the place where the tortious act occurred.

Furthermore, if the claimant is a consumer, they may elect to file their claim in the court of their own domicile.

For all consumer and commercial disputes, a mediation process is compulsory.

The mediation period is limited to three weeks for consumer matters and six weeks for commercial matters. The parties may mutually extend this period by one-third.

While the defendant is not obligated to participate in the mediation process, failure to do so may result in them being liable for the mediation costs incurred if the dispute proceeds to litigation.

The Product Safety Law does not provide for any particular rules for preservation of evidence (save for market surveillance activities of the regulators).

The Turkish system also does not have pre-trial deposition. The preliminary objections, as well as the evidence, are tried during the suit proceedings.

However, the CPL, which outlines general civil litigation procedures, does provide a specific mechanism for “determination of evidence”. If circumstances suggest that evidence may be lost or destroyed before it can be collected during regular litigation proceedings, the relevant party can apply to the nearest competent court to secure the evidence, with or without the opposing party’s presence.

The court will then decide whether there is sufficient time to notify the opposing party and obtain their statements, or if necessary, secure the evidence immediately and inform the opposing party afterward.

However, the Court of Appeals expects the lower courts to collect additional evidence that supports the findings of this “determination of evidence” process if such evidence is collected in the absence of the opposing party.

Under general principles of civil judgment in Turkey, the burden of proof lies with the claimant (Article 7 of the Civil Code), and each party is responsible for presenting the evidence they rely on. Courts do not automatically collect evidence without the parties' initiative in civil proceedings.

If a party asserts that the evidence supporting their claims or defences is in the possession of the other party or a third party, they can request a court order compelling them to produce the evidence. If the opposing party withholds such evidence, defying court assessment, the burden of proof may shift following the court’s order. In the case of a third-party custodian, they must present the evidence to the court (upon compensation for any losses incurred) by court order.

In recent years, there has been a judicial trend towards expanding the application of Article 31 of the Civil Procedural Law, which mandates judges to clarify cases. This article requires judges to order parties to address legally ambiguous or contradictory matters or to introduce any additional evidence crucial for resolving the case. If a party hesitates to comply with such an order to produce evidence, the court may decide to shift the burden of proof, as described above.

Under the Civil Procedural Law, the parties may request the court to appoint expert witnesses to analyse and comment on the technical aspects. This appointment commences with a specific discovery session with the participation of the parties, the judge and the experts. The judges also have the authority to appoint expert witnesses if they require any technical assistance to resolve specific matters.

The costs of the expert witness are borne by the party bearing the burden of proof, to be later reimbursed by the losing party at the conclusion of the proceedings.

Under the Expert Witnesses Act, a list of qualified sworn expert witnesses is annually announced in each judicial area.

If the expert opinion is deemed insufficient, parties may request, or the judge may independently decide to, request further details from the experts, appoint a different expert or a committee of experts, or summon the expert witness(es) to clarify their technical opinion.

In product liability and product safety cases, the Court of Appeals often expects the lower courts to appoint expert witnesses.

While the Civil Procedural Law allows parties to utilise their own expert opinions, these opinions do not carry the same weight as those of court-appointed experts.

While the general principle places the burden of proof on the claimant, the Turkish Civil Procedural Law stipulates that both parties are responsible for proving their allegations or defences with sufficient evidence.

In principle, the establishment of a fact should be beyond doubt. The Civil Code requires evidence to reasonably prove the alleged incident or situation. If the alleging party fails to provide sufficient evidence reasonably indicating the alleged fact, the courts will conclude that they have not met their burden of proof.

In product liability cases, this principle often hinges on court-appointed expert reports. In the absence of sufficient evidence, experts may draw conclusions based on the balance of probabilities, and courts may tend to rely on such reports. However, if the appealing party insists on the strict application of the burden of proof, appellate courts may remand the case due to insufficient evidence.

An exception to the reasonable proof burden exists in cases involving general life expectations or presumptions. If a party’s claims contradict common sense or general expectations, the burden of proof shifts, and the court may require them to substantiate their allegations.

It is important to note that in strict liability cases, the burden of proof rests with the defendant.

Generally, product liability cases in Turkey are heard by civil courts of first instance, presided over by a first-class judge.

However, if the claimant is a consumer, they must file their claim in a consumer court, which is also presided over by a first-class judge.

When both parties are merchants or the dispute is commercial in nature, the case falls under the jurisdiction of a commercial court. Commercial courts typically consist of a panel of three first-class judges, but commercial disputes with a value below an annually adjusted threshold are heard by a single judge of commerce. Due to high inflation, this threshold must be reviewed and adjusted each calendar year.

The Turkish legal system does not employ trial by jury. All judicial review and decision-making are exclusively conducted by judges.

First-instance court decisions in Turkey can be challenged before the Court of Cassation. This can involve either objecting to preliminary injunction orders or seeking cassation (annulment) of the verdict. The Court of Cassation has the authority to either retry the case from the beginning or simply remand it back to the court of first instance for reconsideration.

The Court of Cassation decisions may be appealed before the Supreme Court (Court of Appeals) if the value of dispute is above certain thresholds. Due to high inflation in Turkey, the monetary thresholds should be reviewed annually for each calendar year.

As a general principle, the time limit for filing a demand for cassation or appeal is two weeks. This is a statutory period beginning once the written award with the legal grounds is served upon the relevant party.

Under the general provisions of the TCO, a seller is not liable for defects that were readily apparent to the buyer at the time of contract formation. This principle also applies if the buyer fails to inspect the product or notify the seller of the defect, unless the defect is latent or hidden.

In tort law cases, the defendant may argue that they were not at fault or that there is no causal link between the alleged defect and the damage.

In contract law disputes, the defendant may contend that they did not breach their contractual obligations.

A common defence strategy is to argue that the product conforms to the technical standards that were in effect at the time of marketing of the product.

The manufacturer/seller may argue and attempt to prove that the defect was not discoverable given the state of scientific and technical knowledge at the time of the delivery. However, this defence is often rejected in Court of Appeals jurisprudence, as it requires the manufacturer/seller to prove that the defect was not only undiscoverable but also unavoidable.

Defendants can assert a third party’s fault and issue a third-party notice under the CPL. Third parties have the option to participate in the proceedings and support the defendant. If the third party ignores the notice, they cannot then object to the findings in the noticed case file. If they do participate, their defence is limited to the designated defendant’s defences.

Due to the limited intervention rights of third parties, the verdict does not have a binding effect on them. Therefore, if the defendant loses the case, they must seek recourse against the relevant third party for reimbursement of the costs incurred due to the judgment. There is no specific time limit for such recourse; the general statute of limitations applies.

Since a sound judgment requires determining causality, the impact of the claimant’s actions will be considered. If the claimant’s actions caused or contributed to the damage, the court may reduce or even eliminate the manufacturer's liability.

It is important to note that special regulations for pharmaceutical products, food, or dangerous goods may have additional or specific provisions that should be analysed separately.

Compliance with regulatory and/or statutory requirements relating to the development, manufacture, licensing, marketing and supply of a product is the initial burden that the manufacturer must satisfy. However, case law also imposes an additional burden on the manufacturer to take further measures to resolve any non-compliance if it was foreseeable and preventable.

The successful party can recover all court fees, including court levies and charges, court-appointed expert costs, etc, to be compensated by the losing party.

The costs of proceedings are determined in accordance with the Civil Procedural Law, Attorneys’ Law and Levies’ Law, and are dependent on the value in dispute, with no apparent excess costs.

The losing party is required to reimburse the successful party’s lawyer fees, with the limits defined in the tariff for legal works announced annually by the Union of Turkish Bars. The lawyers’ fees vary between fixed rates (from approximately EUR500) and 25% of the value of the dispute.

Parties may be granted legal aid by the courts if they can demonstrate that they lack the financial resources to cover the costs of proceedings and have a reasonable prospect of success in their case. However, public funding of proceedings and pro bono legal aid by an attorney are generally not permitted unless authorised by the relevant Bar Association.

Class action is not recognised in the Turkish judicial system.

However, while class actions are not available, the Consumer Protection Law empowers consumer associations and foundations to file determination cases or seek preliminary injunctions to safeguard the interests of their members or the groups they represent.

Also, the Ministry of Commerce, relevant authorities and consumer associations may file lawsuits for declaratory judgment actions or preliminary injunction for prohibition or suspension of unlawful consumer-related matters under the Consumer Protection Law.

Co-ordinated proceedings are not recognised as each claimant is expected to file a separate lawsuit.

However, in practice, courts may informally co-ordinate several cases if the defendant and the cause of action are the same across a series of lawsuits. This may involve running parallel judgment procedures or designating one case as a pilot case for the remaining ones to follow.

A recent comprehensive summary of product liability law by the Trabzon Court of Cassation (4th Chamber) provides insight into the evolving legal landscape in Turkey. This case involved a toddler’s tragic suffocation after crawling into a washing machine. Expert investigation revealed that the machine’s cover easily locked with minimal pressure, deviating from general expectations for similar products.

The court ruled that the manufacturer’s liability should be based on the Product Safety Law, a departure from the previous reliance on tort law principles under the TCO. The court referenced a 1996 ruling by the General Chamber of the Court of Appeals, which established fault-based liability for manufacturers. However, the court emphasised that fault should not be interpreted strictly, as manufacturers also bear the burden of showing diligent care as required by law. A manufacturer must prudently assess potential risks and dangers likely to occur during product use. Failing to take precautions to avoid such potential risks should be classified as a faulty act.

In light of recent jurisprudence, it can be summarised that (i) the courts tend to apply the terms of the Product Safety Law more frequently than the tort law principles of the Code of Obligations, and more importantly, (ii) there is a shift in the judiciary’s evaluation of manufacturer (product) liability from fault-based liability towards strict liability. This shift involves heightened care and diligence expectations in the design and manufacturing of products.

The EU adopted the General Safety Regulation (GSR) in 2019, which will come into force in stages starting in July 2024. The GSR introduces additional safety features for homologation and type approval of automotive products marketed in the EU.

Turkey has a customs union with the EU, and Turkey’s automotive industry is fully integrated with the EU market. Turkey ranks 15th in the world and 5th in Europe in terms of automotive production, and Europe is the biggest market for Turkish automotive manufacturers.

Recognising this integration, Turkish automotive legislation is closely aligned with the EU acquis, ensuring consistency with European standards and regulations.

Turkish policymakers typically monitor legislative developments in the EU, evaluate their market impact in relation to Turkey’s economic needs, and subsequently adapt them into local legislation with minor modifications.

Therefore, it is anticipated that a replication or slightly modified version of the GSR will be introduced in Turkish legislation following the full implementation of the EU GSR.

Given the customs union between Turkey and the EU, with the EU being Turkey’s largest import and export partner, a significant flow of products exists between the two markets. To maintain this flow of goods, Turkey closely monitors and often aligns its regulations with the EU acquis.

In recent years, the EU has introduced cutting-edge regulations concerning artificial intelligence, personal data, mobility, and sustainable and circular economy, either through legislative implementation or in draft form.

The EU’s draft product liability directive aims to adapt liability and safety expectations to the technological advancements of recent decades. This adaptation will involve redefining concepts related to products and the burden of proof, resulting in the expansion of manufacturers’ product liability towards strict liability, along with significant procedural changes.

It is expected that Turkey will follow the EU approach with a short delay, after observing the implementation and initial impact of the EU legislation.