Product Liability in Turkey
1. Causes of Action and Sources of Law
Under Turkish law, there is no specific legislation in force that directly governs product liability matters currently. However, the c of Turkey has introduced new legislation on product liability and safety matters and technical regulations of products in Turkey. The Law numbered 7223 on the Product Safety and Technical Regulations (“the New Law”) is published on Official Gazette on 12 March 2020 to be effective as from 12 March 2021 by annulling the Law numbered 4703 on the Preparation and the Implementation of the Technical Regulations regarding the Products (“the Preceding Law” or “the Law Numbered 4703”). The New Law, having mostly based upon the same grounds of the Preceding Law, constitutes crucial differences in terms of the product liability. The New Law introduces product liability as a special responsibility under Turkish Law rather than including it in the contractual or tort responsibilities legislated under the Code of Obligations. Until the effective date of the New Law; 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 the liability of hazard, which is again regulated under the Turkish Code of Obligations. Accordingly, although there may be no direct contractual relationship 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 is 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.
2. Legal Standing to Bring Claims
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.
3. Time Limits for Claims
Under Turkish practice, currently, 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 product 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.
According to the New Law, the right to claim compensation for the damages caused by the products is lapsed (i) in 3 years as of the date when the injured party is informed about the damage and the responsible person and (ii) in 10 years in any case as of the date when damage occurs.
4. Requirements to Invoke Jurisdiction
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 authorized 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 unauthorized, 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 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.
5. Pre-action Procedures and Requirements
Since currently there is 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 TRY 10.390 for 2020. The Consumer Arbitration Committee may request all kinds of information and documents related to the dispute from the parties, relevant institutions, or organizations. 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. It should be noted that the parties shall proceed with the mandatory mediation filing a lawsuit, due to the fact that mediation is a mandatory procedure before applying to court actions for consumer transactions.
If the subject of debt or compensation claims is related to product liability matters that arise from commercial transactions, the parties shall then fulfill 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.
6. Rules for Preservation of Evidence
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 the finalization 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 the recording of the evidence. Also, the product itself can be collected or detected through a recording of the evidence procedure filed before the court or detected by the notary public.
7. Disclosure of Documents
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 a discovery, and to request an 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.
8. Expert Evidence
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.
9. Burden of Proof
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. Also, the New Law declares that the products released to the market shall be safe and the products that are aligned with the human health and safety provisions of the technical regulations are acknowledged as “safe products” unless otherwise proven. According to the New Law, the product liability compensation which is regulated under Article 6 provides that in case a product damages persons or goods, the manufacturer or the importer of the product shall indemnify the damages of the injured party. In such a case, the indemnified party shall be under the burden of proof for the causal link between (i) the damage and (ii) the consequence. It is stated that in case the damages are caused by more than one manufacturer or importer, they will be held severally responsible. It is crucial to note that the New Law has strictly invalidated any exclusion clause foreseeing that the manufacturer or the importer would not be liable for their products.
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.
10. Courts in Which Claims are Brought
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 regard to product liability cases.
Unless the authorized 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.
11. Appeal Mechanisms
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 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 TRY 5.393,52 (for 2020) 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’.
It should be noted that there also exists ‘liability of hazard’ which determines absolute liability under the 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 the circumstances where the product liability matter being considered within the frame of absolute liability based on the liability of hazard, it may be possible to hold the producers being 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.
13. Rules for Payment of Costs
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.
Afterward, 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 finalized, 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. Payments made as attorney fees cannot be lower than the tariff, and "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.
14. Class Actions, Representative Proceedings or Co-ordinated Proceedings
Anyone who has a 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.
On the other hand, the Ministry of Commerce or any consumer organization may file a lawsuit for the determination of a defect in 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 provides that associations or any other legal entity may file a lawsuit for the elimination of any illegality and the protection of their members’ rights.
It is difficult to perform consumer protection conflicts in Turkey and requires the consultant specialty in this field since there is not any clear regulations and certain practice in Turkey. In this respect, considering the need of participants, the competent authority declared the New Law establishes the rules applicable to product liability cases which may help the participants to protect their rights and compensate for their damages.
You may reach the detailed information on the New Product Liability and Safety Code here.
The previous version of the article has been published on Chambers under the Chambers Product Liability & Safety 2019 Guide.
Article contact: Bilge Derinbay / E-mail: email@example.com