TÜRKIYE Law and Practice Contributed by: Tansu Akin, Akin Legal
The second tier of the regulators’ authority involves monitoring and surveillance of the mar - ket. In this capacity, they collect samples from the market and conduct tests to ensure compli - ance 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 govern - ment 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 allega - tions. 1.3 Obligations to Commence Corrective Action The Product Safety Law requires that manufac - turers, 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 accord - ingly. They must also take corrective measures to bring the product into conformity and, if nec - essary, stop placing it on the market, withdraw it, or initiate a recall. Manufacturers are required to inform end cus - tomers of identified defects, the recall process,
and intended corrective measures (replacement, sales contract rescission, or free repair) and sub - mit bi-monthly reports to the Ministry. Informing stakeholders in the supply chain alone is insuf - ficient. The learned intermediary principle is not appli - cable. If the Ministry identifies potential risks, it will warn the Enterprise to take necessary precau - tions, 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 prod - ucts marketed under a specific licence or per - mission from the Ministry, the Ministry may also suspend such licence or permission, effectively banning the product’s marketing. Therefore, a recall can be initiated by the man - ufacturer, importer, distributor, or the author - ity, 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 regis - tered mail, and in some cases, through manda - tory advertising. Initiating a recall does not absolve the manu - facturer/importer from liability for damages suffered. They remain liable for compensa - tion, provided the claimant proves a causal link between the damage and the defect. Thus, a recall alone does not automatically trigger liabil - ity; the existence of damage due to the defect is also required.
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