BRIEF NOTE ON THE MARKET SURVEILLANCE AND INSPECTION REGULATION OF THE MINISTRY OF COMMERCE, PUBLISHED ON 9 FEBRUARY 2022

The Ministry of Commerce Market Surveillance and Inspection Regulation (“Regulation”) published in the Official Gazette dated 09.02.2022, came into force on the date of publication and abolished the Ministry of Commerce Market Surveillance and Inspection Regulation (“Former Regulation”) dated 01.04.2020. The regulation has brought some innovations and changes. In the Regulation, some of the provisions of the Former Regulation have been preserved, while some provisions have been fallen into in a more detailed way. These matters are included in this information note.

Amendments and Essential Articles

• Unlike the Former Regulation, the first article of the Regulation stated that the purpose of the surveillance and audition activities to be carried out is to ensure that consumer products are not only safe but also "in compliance with the relevant technical regulations".

• While in the 4th article of the Former Regulation, titled “Definitions”, a product that is found to be unsafe in terms of human health, life and property safety, animal and plant existence, and the environment through sensory examination and testing or examination is defined as an unsafe product, in the Regulation, there is no definition of an unsafe product, the non-compliance of the products with the technical regulation or the general product legislation is expressed as "non-conformity". Thus, the Regulation has specified an extensive scope.

• In the Former Regulation, products that complied with technical regulations were considered safe. With the 5th article of the Regulation, it is stated that the product that complies with the provisions of the technical regulations on human health and safety will be considered safe until proven otherwise. In addition, it has been regulated that, by making an alternative pleading, in cases where there is no technical regulation or does not contain provisions regarding human health and safety, the safety assessment will be made according to the General Product Safety Regulation published in the Official Gazette dated 11/3/2021.

• While the places where the inspections could be conducted are enumerated in the Former  Regulation limitedly, in the New Regulation, it is regulated that the inspection can be carried out "anywhere deemed necessary", including the places listed as examples. Thus, the limitation of the inspection in terms of location has completely disappeared.

• The "Obligations of the Manufacturer and the Distributor" in the Former Regulation are regulated under the concept of "Economic Operator" in the Regulation. However, there has been no change in these obligations.

• With the regulation, the Branch Offices were abolished, their duties and authorities were transferred to the Regional Directorates, and the duties and authorities of the Regional Directorates and the administrative sanction process were adjusted in much more detail.

Administrative Sanction Process

Although administrative sanctions were included in the Former Regulation, their procedures and principles were not given in detail. The regulation, on the other hand, has largely eliminated this deficiency, and the important stages of the process are summarized below.

• Voluntary Precaution: As a preventive measure, the entrepreneur is given the opportunity to take voluntary action for the relevant product if the entrepreneur determines that the product is risky and inappropriate before the inspection of the Ministry of Commerce. The said precautionary activities; covers all the necessary measures, including stopping the supply of the product to the market, preventing it from being made available on the market, withdrawing it from the market, recalling it, making the distributors aware of this measure, and warning the consumers about the risks the product carries. If the entrepreneur is deemed to have fulfilled his obligations, administrative sanctions will not be imposed on the entrepreneur.

• Temporary stoppage decision: If there are indications that the product carries serious risk, the Regional Directorate may decide to temporarily suspend the product's placing on the market until it is checked. The entrepreneur, on the other hand, will announce the information to the public by taking the necessary precautions regarding the risky products. If the measures taken are insufficient, the entrepreneur shall recall the product.

• Taking the defense of the entrepreneur: Administrative sanctions and other measures are regulated in detail in the 11th article of the Regulation and its continuation. Accordingly, if, as a result of the examination, it is concluded that the product carries a risk, the relevant entrepreneur will be given ten working days by the Regional Directorate to make its defense. In cases where there is a serious risk that requires urgent intervention regarding the protection of human health or safety, the defense of the entrepreneur is not sought.

• Presenting corrective precaution plan: After the defense of the entrepreneur is received, in the event that the Risk Evaluation Commission decides that the product is unsuitable, the determined administrative sanctions will be applied by the Regional Directorate, and the notification containing the reason for the decision and the legal objections to the decision and the duration will be notified to the entrepreneur. In the said notification, fifteen working days are given to the entrepreneur to present the corrective precaution plan. A corrective precaution plan refers to the measures to be taken by the entrepreneur to minimize the risk of the product and to ensure compliance with the legislation. These measures can be listed as “Making the product suitable or ensuring that the product does not pose a risk, preventing the product from being on the market, withdrawing the product from the market immediately and warning the public against the risk, destroying the product, adding understandable warnings in Turkish about the risks that the product may carry and warning the consumers at risk”

• Necessity, moderation and proportionality: This principle, which was also present in the Former Regulation, has been preserved in the Regulation. According to this; The administrative fine amount to be imposed by the Regional Directorate as a sanction on the entrepreneur should always be necessary, moderate and proportional to the violation.