Recent Development

The decision of the Constitutional Court (the “Court“) numbered 2024/187 E., 2026/42 K. and dated 12 February 2026 (the “Decision“) was published in the Official Gazette dated 2 June 2026 and numbered 33268. In the Decision, the Court annulled, on grounds of unconstitutionality with respect to consumer contracts: (i) the phrase “…and Article 11…” contained in subparagraph (d) of paragraph (6) of Article 48 of the Law on the Protection of Consumers No. 6502 dated 7 November 2013 (the “LPC“); and (ii) paragraph (1) of Article 9 of the Law on the Regulation of Electronic Commerce No. 6563 dated 23 October 2014 (the “LREC“).

The Annulled Provisions

Under the phrase set out in Article 48(6)(d) of the LPC, operators of electronic commerce marketplaces acting as intermediary service providers were exempted from liability for the exercise of consumers’ alternative rights in respect of defective goods as regulated under Article 11 of the LPC — even where such operators collected payment on behalf of the seller or supplier.

Article 9(1) of the LREC, in turn, generally exempted intermediary service providers from liability arising from unlawful matters relating to content offered by the service provider and to the goods or services subject to such content, unless otherwise provided under other legislation.

The Application for Annulment

The application for annulment was filed by the 3rd Civil Chamber of the Ankara Regional Court of Justice. In the course of an appellate review of a case seeking compensation for non-pecuniary damages arising from a defective product purchased through electronic commerce, the Chamber concluded that the challenged provisions tilted the balance between consumers and intermediary service providers in a manner adverse to consumers.

In summary, the application argued that: consumers make purchases on electronic commerce marketplaces by virtue of the environment of trust that such platforms create; the principle of reliance-based liability requires that intermediary service providers be held accountable for the contracts they facilitate; and the challenged provisions are incompatible with Articles 2, 10, 13, 36, and 172 of the Constitution.

The Court’s Reasoning

The Court grounded its reasoning for annulment on the following key findings:

• Right to Property and Positive Obligations: The Court held that the consideration paid by a consumer for defective or unlawful goods falls within the scope of the right to property, and that the State’s obligation to protect this right encompasses the duty to establish effective legal mechanisms ensuring a fair balance between consumers and intermediary service providers.
• Active Intermediary Service Providers: According to the Court, intermediary service providers do not always carry out a purely technical and neutral intermediation function. In circumstances where they hold information or control over goods or services — that is, where they assume an active role — a blanket exclusion of liability may leave consumers without adequate protection.
• Protection Gap: The Court found that the challenged provisions render it impossible in all circumstances for a consumer to bring a direct claim against an intermediary service provider, which can create a significant protection gap to the detriment of consumers, particularly in cases where the seller is unreachable or fails to fulfil its obligations.
• Consumer Protection: Considering Articles 5, 35, and 172 of the Constitution in conjunction, the Court concluded that the challenged provisions upset the fair balance required to be maintained between consumers and intermediary service providers, to the detriment of consumers.

Dissenting Opinion

The Decision was adopted by a majority, with one member dissenting. The dissenting opinion noted that, under the existing statutory framework, intermediary service providers are already subject to a broad range of obligations, including pre-contractual information duties, obligations relating to the delivery and performance of goods, the refund of payment upon exercise of the right of withdrawal, and liability for promotional sales conducted without the seller’s approval. The dissenting member further argued that holding intermediary service providers — who have no means of knowing or being expected to know whether a product is defective — strictly liable under the defective goods regime would increase service costs, ultimately pass those costs on to consumers, and create the risk of marketplace operators withdrawing from the market. In the dissenting member’s view, the resulting framework is also incompatible with the constitutional obligation to ensure the sound functioning of markets for goods and services.

Conclusion

The Court unanimously resolved that both annulment provisions shall enter into force nine months after the date of their publication in the Official Gazette (2 June 2026), on the grounds that an immediate legal vacuum would be contrary to the public interest. During the nine-month deferral period, the legislature is expected to re-regulate platform liability in a manner that draws the distinction between active and passive intermediary service providers, in line with comparative law and the European Union’s Digital Services Act. In the interim, operators of electronic commerce marketplaces would be well advised to review their seller agreements, risk allocation mechanisms, and consumer complaint processes in light of these developments.