Product Liability & Safety 2019

Last Updated July 09, 2019

Turkey

Law and Practice

Authors



NSN Law Firm is a full-service law firm based in Istanbul, with associate offices in Ankara and İzmir. The firm includes ten partners and more than 30 lawyers. The Life Sciences Regulation and Intellectual Property teams advise on all types of regulations concerning medical devices, cosmetics, food supplements and various public health matters. They offer expertise in product liability matters and anti-corruption compliance, including transactional due diligence and internal investigations in the healthcare sector, representing various multinational innovator pharmaceutical companies. The firm provides patent prosecution and litigation services in relation to licensing technology transfer and data exclusivity. It acts in a wide range of contentious matters, particularly involving complex litigation, and also handles trade mark portfolios for various global companies in Turkey.

There is no specific regulation that directly governs product safety matters under Turkish law, but there are some provisions regarding product safety contained within various pieces of legislation. Furthermore, legislation regarding product safety prepared by international organisations such as the World Trade Organization, the Food & Drug Administration, the European Organization for Quality and the Food and Agriculture Organization is recognised by Turkish legislation. For instance, Turkey's food legislation relating to product safety is largely in line with European Union food legislation.

Regulations regarding product safety matters in Turkey include the following:

  • the Law on the Preparation and Implementation of Technical Legislation on Products numbered 4703;
  • the Code of Obligations;
  • the Law on Protection of the Consumer;
  • the Regulation on Surveillance and Supervision of Products in the Market;
  • the Regulation on Control of Food Safety and Quality; and
  • the Turkish Food Codex Regulation.

The Law numbered 4703 is considered to be a general source of product safety rules since it forms the basis of all technical legislation regarding different kinds of products. Also, it mainly specifies that producers must release only safe products to the market; any products that comply with the technical regulations are considered to be safe. However, where the technical regulation is not available, the safety of the product shall be evaluated according to the national or international standards; if such standards do not exist, it shall be evaluated considering the good practice code in the sector, or the level of science and technology, or the reasonable expectations of the consumer. These standards are facultative for products regulated by a specific technical regulation. 

Under Turkish law, there is no statute that directly governs product safety or constitutes an agency that is mainly interested in product safety, although there are key government agencies for each sector that are competent to regulate product safety, including the following:

  • the Ministry of Agriculture and Forestry is responsible for the regulation, surveillance and supervision of foods;
  • the Turkish Pharmaceuticals and Medical Devices Agency of the Ministry of Health is responsible for the regulation, surveillance and supervision of pharmaceutical and medical devices products; and
  • the Ministry of Commerce is responsible for the regulation, surveillance and supervision of imported products.

In addition, the Ministry of Health, the Ministry of Industry and Technology, the Energy Market Regulatory Authority, and the Ministry of Environment and Urban Planning monitor the market from their respective viewpoints. These government agencies have the authorisation to make regulations regarding the technical features of products, and to create safety standards that are specific to each sector; they are also entitled to impose required measures, such as product recall, announcements to the public, etc.

Certain public authorities are entitled to order corrective actions for products that do not comply with technical legislation or that violate public health, environmental health, consumer protection or energy efficiency, based on public interest. The law contains no specific criteria for market surveillance and the inspection of the product, but the relevant public authority is authorised to regulate specific measures. For instance, if the relevant public authority detects upon market surveillance and inspection that the product is unsafe, it may ban supply of the product to the market or recall the product that has already been supplied to the market under the Law numbered 4703. If the producer fails to announce the information about the risk of the product and corrective actions, the Law numbered 4703 ensures that the relevant public authority shall notify the persons at risk through an announcement to be published in at least two newspapers distributed throughout the country and on two TV channels broadcasting throughout the country. Additionally, the Turkish Pharmaceuticals and Medical Devices Agency of the Ministry of Health is entitled to investigate the products that are suspected of being inaccurate in terms of the health and safety of the consumer, and to recall them from the market in accordance with the Withdrawal Regulation numbered 29537. Also, if the demand on the recall of pharmaceuticals and medical devices is not fulfilled by the responsible person, the marketing authorisation of the device may be suspended by the relevant authority.

The notification procedure in respect of product safety matters can differ according to the subject of the issues. As a general rule, the assumption of risk is enough to commence the notification process. Accordingly, the relevant company or authority may start the examination process for market surveillance and inspection of the product. For instance, in the case of pharmaceuticals and medical devices that are suspected to be unsafe and defective, the notifications may be made by the persons, institutions and organisations to the relevant authority, provincial health directorates or the company responsible. On the other hand, regulatory authorities are competent to determine the obligation for notification of the products before they are supplied to the market. Obligations to notify the regulatory agencies regarding products would be different according to the technical legislation applicable to each kind of product. For instance, cosmetic products can only be released to the market after final certain laboratory research on the cosmetic product is notified to the Turkish Pharmaceuticals and Medical Devices Agency of the Ministry of Health.

The penalty rules for breaching product safety obligations would vary according to the technical regulations for every kind of product. In addition, there are differences between governmental agencies regarding the strictness of applying sanctions. As per Art. 12 of the Law numbered 4703, an administrative fine ranging from TRY2,289 to 286,175 shall be applied to the producer, distributor and other related person for breaching certain product safety rules determined under Art. 5, which provides that the producer must only supply safe products to the market, and Art. 9 of the Law numbered 4703. On the other hand, if the responsible firms, pharmaceutical warehouses and businesses like pharmacies do not cease selling the defective pharmaceuticals and medical devices after the recall announcement, the penalty provisions of the Law on Pharmaceuticals and Medicinal Products numbered 1262, the Turkish Criminal Code numbered 5237 and the Law on Misdemeanours numbered 5326 shall be applied to them.

For instance, a recent Supreme Court decision involved a stationery manufacturer and importer company being penalised TRY99,227 for not complying with the product safety legislation, according to Art. 5/3 of the Law numbered 4703, since the product safety test on the imported erasers resulted in a negative outcome, which was examined by an authorised chemical laboratory pursuant to the Communiqué on Market Surveillance and Supervision on Hazardous Chemical Ingredients of Some Consumer Products. Accordingly, all unsafe products were recalled from the market by the Ministry of Commerce.

Another example involves another stationery manufacturer and importer firm, which was fined due to the fact that it released the imported erasers to the market without applying product safety regulations. Even though the erasers were produced abroad and complied with the product safety rules of the foreign country, the products that are released to the market in Turkey must comply with the local legislation and be safe according to Art. 5/3 of the Law numbered 4703. In conclusion, the company was fined TRY12,327 and all the released erasers were recalled from the market by the Ministry of Commerce.

Under Turkish law, there is no specific legislation that directly governs product liability matters. However, as a general rule, product liability arguments are evaluated within the scope of tort liability, contractual liability and liability of hazard under the Turkish Code of Obligations numbered 6098.

Furthermore, various statutes regulate provisions on product liability issues. For example, the Law on Biosecurity numbered 5977 and the Law on the Preparation and Implementation of Technical Legislation on Products numbered 4703 determine absolute liability for the producers. Also, consumers may base their product liability claims on the grounds of defective product provisions regulated under the Law on Protection of the Consumer numbered 6502. If the consumer has been damaged due to a defective product, the Law on Protection of the Consumer provides that the consumer can be compensated the damages pursuant to the relevant provisions of the Turkish Code of Obligations numbered 6098 in addition to the listed rights of consumers under the Law on Protection of the Consumer.

As mentioned above, the liability of the producer may be evaluated under the tort provisions of the Turkish Code of Obligations or based on liability of hazard, which is again regulated under the Turkish Code of Obligations. Accordingly, although there may be no direct contractual relation between the consumer and the producer, it would still be possible to claim damages from the producer on the grounds of the tort provisions or liability of hazard. On the other hand, contractual liability provisions of the Turkish Code of Obligations may still be applicable in the case of a defective product. However, in order to benefit from these provisions, the consumer should apply directly to the seller but not to the producer, if the producer is different from the seller. Considering the general tendency of the courts to facilitate the exercise of consumers’ rights and the difficulty of demonstrating a contractual relationship between the parties, tort provisions or – where possible – the liability of hazard are mainly preferable before the court.

Art. 186 of the Turkish Criminal Code sets out that the persons who sell, provide or keep food and pharmaceuticals that were altered or spoiled in such a way as to cause danger to people’s lives shall be punished with imprisonment of between one and five years and a judicial monetary fine of 1,500 days. Persons who produce or sell pharmaceuticals in a manner that is dangerous to people’s lives and health shall be punished with imprisonment of between one and five years and a judicial monetary fine. In addition to these provisions, in circumstances where the defective product leads to the death or injury of people, the existence of reckless killing or reckless injury may be claimed.

As a general rule under the Turkish Code of Obligations, anyone who faces any damage – material or moral – due to the defective product has the right to claim the compensation of the damages. In this respect, anyone who can demonstrate the causal link between the damage and the defective product may bring a product liability claim. It should be noted that the courts seek causation at the level of ‘reasonable causation’.

Also, the Law on Protection of the Consumer clearly lists the rights of consumers who are facing damages due to a defective product. In this respect, the consumer is defined as a natural or legal person acting under the non-commercial and non-professional purpose, as per the Law on Protection of the Consumer.

Under Turkish practice, product liability is considered within the frame of tort, so the calculation of the time limits for product liability will be based on the regulation for limitation provided for tort matters.

The timeframe in which to bring a product liability claim based on tort law is two years as of being informed about the damage and the person liable for this damage. However, in any event, the time limit lapses no later than ten years after the tortious act. If the tortious act is the subject of criminal law because it is also considered a crime, a longer statute of limitations shall be applicable.

There is a special limitation for product liability matters concerning genetically modified products. A product liability claims related to this kind of products can be brought within two years of being informed about the damage or person liable, but, in any event, the limitation shall lapse after 20 years at the latest, under Art. 14/7 of the Law on Biosecurity.

There is no specific requirement or pre-application procedure to invoke the jurisdictions of Turkish courts for product liability claims. As mentioned above, any person who is subjected to material or moral damage may claim the compensation of the damage, provided that s/he can demonstrate reasonable causation between the defect and the damage. If the product liability matter is related to foreign elements, provisions of the International Private and Civil Procedure Law numbered 5718 will be applied. Product liability matters that are subject to litigation in Turkey must meet the jurisdiction and merit requirements stated under the International Private and Civil Procedure Law.

The international jurisdiction of the Turkish courts shall determine the rules of jurisdiction of the domestic law. It should be noted that, in a product liability matter arising out of the consumer contracts defined in Art. 26 of the Law numbered 5718, the Turkish courts shall have jurisdiction where the consumer's place of residence or habitual residence, or the place of business, settlement or habitual residence of the counterparty, shall be authorised upon the consumer’s choice.

Where the authority is not determined on the basis of exclusive jurisdiction, the parties may agree that a dispute arising out of the relationship of obligations and foreign relations between them may be seen in a court of a foreign state. The agreement shall be valid if it is proved by written evidence. The case can only proceed before the Turkish court if the foreign court considers itself unauthorised, or if there is no plea to the jurisdiction against the Turkish court.

The applicable law would change based on the legal characteristic of the product liability matter. If the matter is considered to be a commercial issue, it is provided that the contractual relations are subject to the law that is explicitly chosen by the parties. The choice of law can be made or changed by the parties at any time. The choice of law after the commencement of the contract shall be effective retroactively, without any prejudice to the rights of third parties. If the parties have not chosen the applicable law, the contractual relationship shall be governed by the law most closely related to that contract.

Product liability issues that may arise in a consumer activity and consumer contracts are evaluated differently under the International Private and Civil Procedure Law. Consumer contracts for the provision of goods or services or loans for professional or non-commercial purposes shall be subject to the laws of the parties’ choice, with the condition that the minimum protection of the consumer in accordance with the mandatory provision of the habitual residence law shall be reserved. If the parties have not chosen the applicable law, the law of the consumer’s habitual residence shall be applied.

If the product liability issue is considered to be a tort matter, the obligation is subject to the law of the country where the tort action is committed. If the place where the action is committed and the place where the loss occurred are in different countries, the law of the country where the loss occurred shall be applied.

The provisions with respect to the recognition and enforcement of the awards of foreign courts are also legislated under the International Private and Civil Procedure Law.

Since there if no law that directly governs product liability, pre-action requirements vary in terms of the legal characteristic of the transaction and the relationship that is the grounds of the product liability matter. However, mandatory pre-action requirements are not sought under Turkish law for product liability matters based on tort law.

Under Art. 68 of the Law on Protection of the Consumer, the consumer is obligated to apply before the Consumer Arbitration Committee with regard to consumer transactions that fall within certain monetary thresholds – the highest amount is TRY8,480 for 2019. The Consumer Arbitration Committee may request all kinds of information and documents related to the dispute from the parties, relevant institutions or organisations. The parties may appeal against the decisions of the Consumer Arbitration Committee before the Consumer Court within 15 days of the date of notification from the Consumer Arbitration Committee. The decision of the Consumer Court on the appeal against the decisions of the Consumer Arbitration Committee is final.

If the subject of debt or compensation claims is related to product liability matters that arise from commercial transactions, the parties shall then fulfil the mandatory mediation proceedings before filing a lawsuit, due to the fact that mediation is a mandatory procedure before applying to court actions for all commercial matters that include the payment of a debt or compensation claims, as underlined in Art. 5/A of the Turkish Law of Commerce numbered 6102, effective since 1 January 2019 in Turkey.

There is no specific rule for the preservation of evidence for product liability cases under Turkish law. As a general rule, the parties are expected to mention their evidence in their petitions, and to submit it before finalisation of the preliminary examination phase. In accordance with the principle of preparation of a case by the parties, except as provided for by law, the judge cannot collect evidence by himself or herself. Under Turkish law, claims over a certain monetary limit can only be proven with written evidence. However, oral evidence such as witness statements may also be possible. The witnesses may be questioned directly by the attorneys of the parties, in addition to answering the queries of the judge. If a party breaches the procedural rules for the submission of evidence, the evidence submitted by that party shall not be taken into consideration by the court, even though it may be lawful and appropriate for the dispute. If there is any risk of the evidence being lost or damaged before the filing of a lawsuit for product liability, the relevant party may file a claim for recording of the evidence. Also, the product itself can be collected or detected through a recording of evidence procedure filed before the court or detected by notary public.

Under Turkish law, the parties shall conveniently collate the facts their cases are based on, and are required to state evidence clearly and explain which evidence is the proof of which fact in the course of the lawsuit. In accordance with the Turkish Civil Procedure Law numbered 6100, if there is a risk of losing evidence before filing a lawsuit, it is possible to file a lawsuit for the determination of evidence, to claim discovery, and to request examination by an expert or the deposition of a witness statement. In order to initiate these pretrial proceedings, the claiming party should be able to prove its legal interest for the relevant pretrial proceeding. The risk of losing evidence or it being difficult to submit said evidence to the court would be considered proof of the existence of legal interest.

Any kind of evidence would be sufficient in order to prove the defect and the liability of the producer. However, in most cases, since a technical evaluation of the matter is required, an expert report or official reports issued by the police or fire department may be sought.

Under Turkish law, it is very common for the courts to request an expert report, in order to understand the specifics of the dispute. As per Art. 266 of the Turkish Civil Procedure Law, in cases where the solution requires special or technical information that goes beyond the legal expertise of the judge, the court shall decide to take the vote and opinion of the expert, upon the request of either party or spontaneously. Experts cannot be consulted for matters that can be solved by general knowledge or experience, or with the legal knowledge of the judge. Courts ex officio choose experts from the list published by the judicial commission. Furthermore, the parties have the right to submit their oppositions towards either the experts or the expert report.

Even though the main rule for consulting experts is provided as an exception for cases that can only be solved with special or technical information, in practice experts are consulted for almost all cases in Turkey. The courts may assign one or more experts, according to the special conditions and scope of the case. As a rule, the time given to experts for preparing reports shall not exceed three months. Upon the request of the expert, the court may decide to extend the time period for an additional three months by its justifications.

An expert is obliged to submit the report within the abovementioned periods and, after its submission, the court gives the parties time to submit their statements regarding the expert report. The parties can submit a statement petition on the parts of the expert report that they consider to be unlawful. After the parties have objected to the expert report, the court examines the objections and sends the file back to the expert so as to prepare an additional expert report. The parties have the right to object to the additional expert report; if they exercise this right, the court will evaluate the expert report and decide either to deliver judgment depending on this expert report or to assign a new expert to make sure the case is examined well enough.

Although there is no legal rule addressing when two expert reports contradict each other, in such circumstances the court should decide to get a new expert report, prepared by another expert upon any party’s request. Otherwise, considering the case law in practice, the decision of the court may be rejected by the high court.

Expert evidence in Turkey has become one of the most essential components of civil proceedings, even though it is regulated as an exceptional civil proceeding agent. In addition, since the preparation of an expert report and additional reports takes too long, it causes prolongation of the proceedings rather than being beneficiary.

The main rule regarding the burden of proof under Turkish law is that the plaintiff is obliged to prove the basis of his or her allegations, unless otherwise provided in the law. Therefore, in product liability cases, the party claiming the compensation of damages shall prove the damage and the fact that the damage occurred due to the fault of the producer and the defect of the product, by proving the causal link between them. However, there are exceptional provisions in some laws determining that the burden of proof may shift to the producer, who may be in a position to prove that he/she is not at fault. For instance, the Law on Protection of the Consumer provides that the burden of proof rests with the producers for the benefit of consumers in some circumstances. Pursuant to this rule, defects arising within six months of the date of delivery of the product to the consumer are deemed to exist at the time of the delivery, in which case the producer is obliged to prove that the product is not defective.

As mentioned before, the producer is obligated to supply only safe products to the market. Accordingly, the producer shall be responsible in any case unless he or she can prove that an unsafe product was not supplied to the market by himself or herself, or that the product is in compliance with all technical requirements and regulations.

The notion of a jury does not exist in the Turkish court system – the judge is the only authority who decides on a dispute, based solely on his or her knowledge and conscience. The disputes may be either adversarial or inquisitorial, depending on the subject matter of the dispute.

Legal procedures would depend on the legal characteristic of the transaction and the causal relation of the matter that provides grounds for a product liability case. Furthermore, there is no specific procedural requirement with regards to product liability cases.

Unless the authorised court is expressively determined in a special statute considering the subject of the dispute and/or parties, the competent court is the Civil Court of First Instance. For instance, in product liability disputes arising from consumer transactions and consumer practices, the competent courts would be the Consumer Courts as per Art. 73 of the Law on Protection of the Consumer numbered 6502. Furthermore, if a product liability dispute occurs in relation to a commercial transaction, then the competent court would be the Commercial Courts, regardless of the case’s value or amount.

As a rule, the Turkish civil court system is a three-tier system comprising the First Instance Courts, the Regional Courts of Appeal and the Court of Cassation. The First Instance Courts are the initial judicial authority to settle disputes. The decisions issued by these courts are examined by the Regional Courts of Appeal in terms of form and merit. Accordingly, the Regional Courts of Appeal may either uphold or quash the decision of the First Instance Courts. Unless otherwise expressly stated in the Turkish Civil Code (“TCC”), the Court of Cassation is the final authority to review judgments. In this respect, decisions of the Regional Courts of Appeal pertaining to monetary amounts that do not exceed TRY58,800 (for 2019) and temporary legal protection procedures are not subject to the review of the Court of Cassation, as per Art. 362 of the TCC.

In every civil law case, including product liability cases, parties may file an appeal within two weeks of the notification of the First Instance Court’s decision before the Regional Courts of Appeal, provided that the conditions stated under Art. 341 of the TCC are fulfilled. For example, final decisions rendered by the First Instance Courts, as well as refusal and acceptance of the request of interim injections and precautionary assessments, and the decisions pertaining to monetary requests regarding amounts greater than TRY4,400 (for 2019) are subject to appeal before the Regional Courts of Appeal. Furthermore, the timeframe for filing an appeal before the Court of Cassation is two weeks from the notification of the decision rendered by the Regional Courts of Appeal. It should be noted that there is no determined timeframe for a trial process, but it usually takes around two years before the First Instance Courts, and two to three years in total for the appeal process.

Bearing in mind that there is no certain time limit in order to regulate new monetary limits, the monetary limits of an appeal judgment may be changed in accordance with the legislation after its publication in the Official Gazette.

A product liability claim that is handled within the frame of tort requires the fault of the producer. In this respect, a product defect that cannot be discoverable within the limitations of science and technology does not create any liability for the producer. Indeed, the Regulation Regarding the Liability from Damages Caused by a Defective Good provides that the producers shall not be liable for ‘progress defects’. However, in circumstances where the defect can be detected within ten years after production, the producers shall be liable for taking relevant measures to eliminate such defect.

It should be noted that there also exists ‘liability of hazard’ that determines absolute liability under Turkish Code of Obligations. However, it is pretty controversial as to whether product liability may be considered as falling into this absolute liability ground. In circumstances where the product liability matter being considered within the frame of absolute liability is based on the liability of hazard, it may be possible to hold the producers responsible for progress defects.

Also, where it may be possible to prove that the person who is facing the damage has contributory negligence, or where there is a severe fault of the third party, it would be possible to lift the liability of the producer.

The producers should present products to the market which are in compliance with the regulations under the Law numbered 4703 pertaining to the Preparation and Implementation of Technical Legislation Regarding Goods and the other regulations, if any are specifically provided for certain types of products. In such circumstances, any defective or unsafe product claims should not be expected. A similar provision is provided under the Regulation Regarding the Liability from the Damages Caused by a Defective Good. Accordingly, the producers tend to comply with regulatory requirements in order to keep it as a defence for ensuring forbearance of the responsibilities in product liability cases, handled under both civil and/or criminal law.

Under Turkish law, in principle, the court fees and legal costs are provided by the plaintiff at the beginning of the case. Also, costs such as hearing costs, notification and postage fees, filing and documentation fees, expenses for exploration, fees for experts and witnesses and possible expenses related to the transfer of the file to the appeal stage shall be paid by the plaintiff. The plaintiff is obliged to pay an advance for the expenses in the amount that is determined annually by the Ministry of Justice in the course of filing the lawsuit.

Afterwards, in accordance with the ‘loser pays’ rule, the successful party can recover its court fees and expenses incurred during the legal proceeding (court costs, etc) from the unsuccessful party. After the award is finalised, the court ex officio decides to return the unused portion of the advance payment. As the main rule, the official litigation costs are recovered from the losing party. If each of the parties is partially justified, the court shall allocate the costs of litigation according to the justification proportion of the parties. In addition to the court fees, the successful party shall be granted the official attorney fees, which are determined in accordance with the minimum Tariff of the Turkish Bar Association.

Despite the fact that the general rule is that litigation funding shall be provided by the parties, there is no specific regulation under Turkish law concerning third-party funding. However, the Civil Procedure Law provides that, in circumstances where the plaintiff proves that he/she cannot afford the trial costs partially or completely, he/she may receive legal aid. However, if the lawsuit is not finalised in favour of the plaintiff, the plaintiff shall be ordered to reimburse all of the costs of the legal proceeding in question.

There are two different types of litigation expenses in Turkey: official fees and reimbursements, and attorney fees.

Under the Civil Procedure Law, official litigation costs include the following:

  • fees for hearing, decision and award;
  • the notification and postal expenses of the case;
  • expenses of providing evidence;
  • expenses of filing and documentation;
  • expenses for interim measures and the preparation of protest, denouncement, warning and proxy;
  • expenses for the discovery of evidence;
  • fees to be paid to witnesses and experts;
  • fees and expenses for the documents that are brought from government agencies; and
  • official contingency fees.

The plaintiff is obliged to pay an advance for the expenses in the amount that is determined annually by the Ministry of Justice in the course of filing the lawsuit. After the award is finalised, the court ex officio decides to return the unused portion of the advance payment. As the main rule, the official litigation costs are recovered from the losing party. If each of the parties is partially justified, the court shall allocate the costs of litigation according to the justification proportion of the parties. 

Attorneys must have been paid the official contingency fees, which are determined annually in the minimum attorney fee tariff by the Union of Turkish Bar Associations. Payments made as attorney fees cannot be lower than the tariff, and agreements with the condition of "no win no fee" are not considered to be binding. Indeed, "no win no fee" arrangements are prohibited in Turkey by the rule that provides that advocates cannot make free-of-charge agreements with their clients under Art. 164 of the Law on Legal Practitioners. In addition to the official contingency fees, attorneys may want to be paid contractual attorney fees, which would vary according to the request of the lawyer.

As a rule, under Turkish practice, the plaintiff should be able to prove its legal interest in filing a lawsuit. Anyone who has legal interest can file a lawsuit to compensate the damages due to a defective product against the producer, individually or together with the other plaintiffs. These kinds of group actions are considered to be beneficial to procedural economy by the judges, but would not be considered class actions. The judgment shall be considered as being issued only for the parties of the lawsuit.

Under the Civil Procedure Law, it is provided that the joinder of parties is possible if the rights and debts that are the subject of the litigation are common between plaintiff and defendant; if they have a right that arose from a common procedure applied or they have undertaken a common responsibility; and if the facts that are the basis of the case and legal reasons are the same or similar.

On the other hand, the Ministry of Commerce or any consumer organisation may file a lawsuit for the determination of a defect in a serial production, for the cease of the production or recall, pursuant to the Law on Protection of the Consumer. The Turkish Law of Commerce provides that the determination and prevention of unfair competition may be claimed by a chamber of industry and commerce or a professional association. By following these provisions, the Civil Procedure Law (No. 6100), enacted in 2011, provides in Art. 113 that associations or any other legal entity may file a lawsuit for the elimination of any illegality and the protection of their members’ rights.

The history of consumer protection practice under Turkish law is not very deep, and there is not yet any clear statute that directly establishes the rules applicable to product liability cases. However, there are some cases that reflect the tendency of the courts and the regulatory authorities towards product liability matters. In a recent decision of the Penal Chamber of the Supreme Court, a food producer was punished with imprisonment according to Art. 186 of the Turkish Criminal Code for storing 116,000 kg of spoilt cucumber and 39,000 kg of spoilt tomato for release and export. These foods were found to contain exorbitant amounts of agricultural pesticide, which is very hazardous for the consumerm contrary to the Turkish Food Codex.

In addition, the Ministry of Industry and Technology regularly performs surveillance and supervision of released products, and makes intermittent decisions to confiscate unsafe products in the market which are found to be unsafe according to the Law on the Preparation and Implementation of Technical Legislation on Products. In 2017, the Ministry of Industry and Technology decided to recall and ban from supply 64 unsafe products. Example of recalled products include the following:

  • a hammer drill,as it did not meet the basic safety requirements and posed the danger of electric shock;
  • a coffee machine, since it did not meet basic safety requirements and posed the danger of starting fire in the home;
  • an electronic blanket, as it failed the tests for resistance against moisture, resistance against residual current, and resistance against heat and burning;
  • a lift cable, since it failed to pass the test for conductor resistance; and
  • a tea boiler, due to the lack of gas shut-off device.

There have been no legal events or trends that significantly affect product liability practice in Turkey. However, on 1 January 2019, a mediation procedure became mandatory before applying to court for all commercial matters that include the payment of a debt or compensation claims, provided that product liability matters are raised from commercial transactions. Also, it should be noted that there are various discussions for enlarging the understanding of product liability.

The consumer-related regulations include significant protective regulations for consumers. In recent years, Turkish consumers have become more aware of their consumer rights. Accordingly, the number of disputes on the matter has increased before the consumer arbitration committees and consumer courts, as a result of which producers, importers and sellers have become more sensitive to consumer-related problems, including defects on products.

As mentioned above, the courts tend to shift the burden of proof with respect to defect or causation (see 2.9 Burden of Proof). However, contingency fees, the introduction of punitive damages, and lengthening the statute of limitations do not tend to be included within the Turkish jurisdiction system.

The significant development in legislation is that the Draft Law on Product Safety and Technical Regulations numbered 1/934 has been drafted by the Ministry of Economy and settled by the Council of Ministers on 5 March 2018 in order to be approved by the Grand National Assembly of Turkey. The Draft Law numbered 1/934 generally determines the conditions that are necessary for products to be placed on the market, put into service or not to be in danger in terms of public interest; it also supervises the fulfillment of these obligations to determine the competence and qualifications. Reports of the European Union Harmonisation Commission and the Industry, Trade, Energy, Natural Resources, Information and Technology Commission have been published in 2018.

NSN Law Firm

Burhaniye Mah.
Atilla Sok No: 6 34676
Altunizade
İstanbul
Turkey

+90 216 321 77 87

+90 216 321 77 17

selma.unlu@nsn-law.com www.unlukuruselek.com
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Law and Practice

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NSN Law Firm is a full-service law firm based in Istanbul, with associate offices in Ankara and İzmir. The firm includes ten partners and more than 30 lawyers. The Life Sciences Regulation and Intellectual Property teams advise on all types of regulations concerning medical devices, cosmetics, food supplements and various public health matters. They offer expertise in product liability matters and anti-corruption compliance, including transactional due diligence and internal investigations in the healthcare sector, representing various multinational innovator pharmaceutical companies. The firm provides patent prosecution and litigation services in relation to licensing technology transfer and data exclusivity. It acts in a wide range of contentious matters, particularly involving complex litigation, and also handles trade mark portfolios for various global companies in Turkey.

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