COUNCIL OF STATE 15. apartment
Main: 2014/9570
Decision: 2018/1194
Plaintiff : Consumer Problems Association
Deputy : Av…
Defendant : Banking Regulation and Supervision Agency
Deputy : Av…
Summary of the Case: Article 10 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers, which was published in the Official Gazette dated 03.10.2014 and numbered 29138 and entered into force. article 1. paragraph 13 of the article 1. it is requested that the fees under the name of “1.1 Allocation Fee, 2.1 Account Operation Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations” in the October-1 list of the paragraph be canceled.
Summary of the Defense : 4/3 of Law No. 6502. in the article, the Institution is assigned to determine all types of fees, commissions and expenses that will be charged other than interest, in the preparation of the Regulation, the Institution adopts the method of determining interest in separate items when determining the interest rate of credit institutions, if the Regulation is canceled, these costs will be reflected in the interest rate, so the interest rate does not include expense items, the system will be selected, the choice of this system will be subject to judicial review instead of quality control, Meri costs are not included when determining interest rates also our legislation, that might confuse the consumer, should be banned at the moment of transaction fees that may be charged under different names and all these fees instead of “allocated costs” such as under a single name and credit of the principal amount be limited to five per thousand in favor of the consumer in a way that put an edit; to meet the needs of the consumer credit allocation fee credit that allows the operation of the system and operational processes that will be taken for the purposes of managing taken under the provision, whether it was provided to enable the consumer to control these fees are unfair, the account money transfer process entails different costs and fees with the operating qualitatively different processes, and therefore is not repeated charging, Regulation regulation before making separate accounts for each account in the customer account of accrued operating costs independent of the number taken on the basis of way that can be accrued under the provision, regulation of Consumer Financial predictable by operating within the framework of the provisions related to inform an account of the fee is passed to the application, where the shooting process, a certain amount of money, a cash advance credit institution, cash machines in many locations, and this cost must be prepared to adapt continuously for a specific cost and where these costs are included in the regulations because it is not included in the interest of, where payments to public institutions, by consumers to make clearly visible in the list where it is located, it cannot also be charged from the consumer, therefore, not pay the fee, where is named as, for the reasons described the subject of the case law, regulations, public interest, it is argued that the case should be dismissed by claiming that the administration complies with the principle of discretion and the requirements of the service.
Opinion of the Examining Judge of the Council of State: 4/3 of the Law on Consumer Protection No. 6502, which is the main article of the Regulation on the subject of litigation.in October article it is stated: “An additional price cannot be charged for actions that the consumer decently expects to be performed within the scope of the goods or services offered to him and are among the legal obligations of the contract organizer, as well as expenses incurred by the contract organizer in his own interests …” and; for credit to be granted to financial consumers, banks in the credit agreement regulating cash, non-cash lending process by the way of every breed and is located between the legal obligations of the act of the banking law from being understood, and the consumer at the rate of five per thousand of the most requested from the loan principal in the contract of the issuer of bank credit allocation fee “for protection against the risk of early payment made in accordance with the interest of the defendant in return for the cost of the administration of Defence specified in, 37/2 of the Law No. 6502 on banks and financial institutions. early payment of the compensation provided for by the article with a similar assurance is provided that cannot be an additional charge in the case was given to allow the fee to be charged under the name of credit allocation, credit allocation fee also could not document the administration of the defendant, the Supreme Court is mandatory, may be required from the consumer costs reasonable and that can be documented, otherwise that will be received from the consumer maktuen a specified amount of the provision in the relevant laws and regulations that would require acceptance of the terms required by the case law of unfair built in, 10 of the Regulation that allows the financial consumer to be charged a loan allocation fee in relation to consumer and housing finance loans. article 1. 1.1“ in October 1, where the products or services classified in paragraph and of the same nature that may be charged by organizations are classified.13. As it is considered that there is no compliance with the law in terms of the ”Allocation Fee“, it should be canceled, the Regulation on the ”Account Operation Fee” that is requested to be canceled should be canceled. article 1. Annex 1 to the paragraph in the list of “accounts 2.1 operating costs” and ” 4.4 withdrawal cash advance fee”mevzut of the above-mentioned scope, legal basis of a nature beyond regulation to be mandatory by the administration of such fees to the defendant, reasonable and can be documented in the direction of where this topic supporting legally valid, factual and objective information and documents provided are faced with the lack of law and legal basis of the regulation could be considered the revocation of the aforementioned regulations needed aykri, In terms of the article “Payments to Public Institutions and Organizations 5.7” in the October-1 list, it is considered that the case should be dismissed because there is no violation of the law and the legal regulation on its basis.
Opinion of the Prosecutor of the Council of State: Article 4 of the Law on Consumer Protection published in the Official Gazette dated 28.11.2013 and numbered 28835. article 3. in October paragraph;” The consumer cannot be charged an additional price for the actions that he expects to be performed decisively within the scope of the goods or services offered to him and which are among the legal obligations of the contract organizer, as well as for the expenses incurred by the contract organizer in his own interests. Consumer loans financial institutions and banks by the card issuer offered to the consumer that the consumer interest in the product or service that will be taken out of any fees, commissions and expenses with the types of procedures based on these principles and the spirit of this law and in accordance with the advice of the ministry in a manner that protects the consumer is determined by the banking regulation and Supervision Agency.” the rule has been introduced.
Based on this regulation, a Regulation has been issued by the Banking Regulation and Supervision Agency on the Procedural Principles of Fees to be Charged to Financial Consumers, some articles of which are the subject of this case, and published in the Official Gazette dated 3.10.2014 and numbered 29138.
1 Of the Regulation. the purpose of this regulation in respect of products or services that are offered to consumers by financial institutions to be taken out of any interest or dividends, fees, commissions and charges associated types and highlighted that determine the procedures and principles; 4. according to the article, organizations; “Banks, financial institutions that issue consumer loans and organizations that issue cards”; the fee is also; It is stated that it will express ”all kinds of monetary amounts under the names of fees, commissions, expenses and the like that are requested from the financial consumer other than interest, dividends, taxes, funds and similar legal expenses”.
10 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers. article 1. in its paragraph; ”Other than the allocation fee charged for the operation of the system that allows meeting the credit requirement for loans to be made available to financial consumers and for managing operational processes … no other fee may be charged” regulation; 13. article 1. in the paragraph; ”… The account operating fee may be accrued and collected in periods determined by the relevant organization on a customer-by-customer basis, regardless of the number of accounts of the financial consumer …” is included in the regulation.
On the other hand, 6, which are not the subject of litigation of the Regulation. dec October October 2011, it was emphasized that no fees may be charged for any products and services other than those contained in this Regulation and its annex; among the fees that may be charged in Annex-1, “1.1. The Allocation Fee is”what, “2.1. The Account Operating Fee is”what, “4.4. The Cash Advance is based on the Withdrawal Fee” and “5.7. Payments to Public Institutions and Organizations”have been included; thus, it has been allowed for the organizations that have been granted loans to receive the counted fees.
It is indisputable that credit agreements concluded dec their own free will between credit institutions, each of which is a private legal entity, and individuals and legal entities receiving loans are private law contracts. Within this framework, the parties may establish relations within the general framework of the contract law, provided for in the contract. Therefore, administrative regulations that interfere with the freedom of contract of the parties would be contrary to the law.
On the other hand, lenders, which are private legal entities established for profit, generally incur a burden for this activity, that is, when performing a loan transaction, while collecting loan interest from their lending customers. Accordingly, it is natural that these burdens and costs that lenders have generally incurred are also reflected in the consumer.
However, the Supreme Court’s decisions on credit agreements, taking into account consumer law; decisions that the lender can ask consumers only for mandatory, reasonable and certifiable expenses, have become established case law. However, it is also clearly emphasized in the Law that credit institutions cannot make an october claim for expenses incurred in their own interests.
The Regulation on the Procedural Principles regarding the Fees to be Charged to Financial Consumers does not regulate in which cases, to what extent the payments and fees contained in the articles of claim may be charged, the nature, clearly the reason and scope of which are contained in the articles of claim.
Accordingly, the regulations subject to the case are the provisions of Article 4 of the Law No. 6502, which is the basis of the Regulation. article 3. in addition, it constitutes a violation of the established Supreme Court case law in this regard.
For the reasons described, it is considered that the articles of the regulation on the subject of the case should be canceled with the adoption of the case.
ON BEHALF OF THE TURKISH NATION
The Fifteenth Chamber of the Council of State, which made the decision, listened to the statements of the examining judge and examined the documents in the file and discussed them as necessary:
10 of the Regulation on the Procedures and Principles regarding Fees to be Charged to Financial Consumers, which entered into force by publishing the case in the Official Gazette dated 03.10.2014 and numbered 29138. article 1. paragraph “Financial credit that allows consumers to meet the requirement for loans to be granted to the operation of the system, except for the fee received for the purpose of managing the allocation and operational processes, the intelligence fee, transaction fee credit fee payment receipt, change the plan, payment plan, under whatever name, whatever variable like any further fee may be charged. The loan allocation fee may not exceed five thousandths of the principal amount of the loan used. The Board is authorized to increase and decrease this limit if it deems it necessary.”, 13. article 1. the “Account operating fee” of the paragraph may be accrued and charged at periods determined by the relevant organization on a customer-by-customer basis, regardless of the number of accounts of the financial consumer. If the account is closed within the year, a fee corresponding to the period when the account is open may be charged. There is no charge for account opening and closing operations and passbook printing operations.“ it was opened with a request to cancel the fees under the name ”1.1 Allocation Fee, 2.1 Account Operation Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations”, which are included in the October-1 list of the Regulation referred to by its provisions.
1 of the Law No. 6502 on Consumer Protection entitled “Purpose”. article: “the purpose of this law with the health and safety of the public interest in accordance with the economic interests of the consumer protective, they make you pay damages, and protection from environmental hazards provider to take measures enlightening and informative to the consumer, consumers in the creation of policies to encourage their initiatives to protect themselves on these issues and to encourage voluntary organisations to regulate issues. 4. the provision of the ”Basic Principles“, entitled ”Basic Principles”. article 3. the paragraph; “From the consumer; an october fee may not be charged for actions that it expects to be performed decisively within the scope of the goods or services provided to it, and are among the legal obligations of the contract organizer, as well as for expenses incurred by the contract organizer in its own interests. Consumer loans financial institutions and banks by the card issuer offered to the consumer that the consumer interest in the product or service that will be taken out of any fees, commissions and expenses with the types of procedures based on these principles and the spirit of this law and in accordance with the advice of the ministry in a manner that protects the consumer is determined by the banking regulation and Supervision Agency. it contains the provision “.
Banking regulation and Supervision Agency (brsa) prepared by and date 03.10.2014 29138 published in the Official Gazette numbered, financial Charges to be collected from consumers by the financial institutions regulation on principles and procedures for products or services that are offered to consumers to be taken out of any interest or dividend in respect of fees, commissions and expenses with these principles and the types of procedures has been identified. After the products and services that may be charged by banks, consumer credit institutions and card issuing organizations are determined in Annex-1 to this Regulation, october 6 of this Regulation. in its article, it is stated that no fee may be charged for any product or service other than those contained in this Regulation and its Annex.
6502 law, the that can be obtained from the consumer in arrangement fees, charges and commissions, costs as determined by the brsa detected; the spirit of the law and are fit for purpose in terms of consumer protection, ensuring that the jurisprudence of the Supreme Court from becoming built with justified, reasonable and documented to determine whether they meet the criteria of being important.
- The dispute is the subject of litigation of the Regulation. when the first paragraph of the article and the related part of the “1.1 Allocation Fee” and “4.4 Cash Advance Withdrawal Fee” and “5.7 Payments to Public Institutions and Organizations” contained in October-1 are examined;
10 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers. article 1. in its paragraph; “Other than the allocation fee charged for the operation of the system that allows meeting the credit requirement for loans to be made available to financial consumers and for managing operational processes … no other fee may be charged. The loan allocation fee may not exceed five thousandths of the principal amount of the loan used. The Board is authorized to increase and decrease this limit if it deems it necessary.” the arrangement is included.
116 Of the Turkish Commercial Code. 20 of the Turkish Commercial Code for the transactions performed by banks and financial institutions that are considered merchants within the meaning of Article or for the services they provide. it is clear that they have the right to charge fees from their customers and consumers in accordance with the article. The authority of the Council of ministers, pursuant to the communiqué that is updated with the date and 15.11.2014 29176 published in the official gazette No. 2006/1 2014/6 deposit and credit interest rates and central bank Credit Profit and loss participation accounts other interests in transactions with participation rates of interest to be provided out About 4 of the regulation. article 1 “(1) The interest rates to be applied by banks on loans other than discount loans, as well as the qualifications and limits of other benefits to be provided other than interest and expenses to be collected are freely determined. (2) out of interest and other interests in consumer loans to be provided in terms of the costs to be charged and promulgated by the banking regulation and Supervision Agency dated 3/10/2014 29138 published in the Official Gazette and procedures regarding the provisions of the financial charges to be collected from consumers are reserved. (3) The maximum contractual and overdue interest rates to be applied on overdraft accounts may not exceed the maximum rates set by the Central Bank of the Republic of Turkey in accordance with Article 26 of the Law on Bank Cards and Credit Cards No. 5464.” by giving place to the regulation, it allows banks and financial institutions to charge interest and fees other than interest from their customers and consumers.
It is an undeniable fact that banks and financial institutions, which have an important place in today’s modern social life and economic life, finance economic growth and form the basis of sustainable healthy economies. For this reason, a number of banks and financial institutions under the supervision and control of public expenses arising from consumer loans, the interest would not be expected to reflect only the pen and regulations within the limits of reasonable, justified and provide the conditions for a team to be documented costs and fees on the condition that they can demand from consumers mevzuatca are eligible. Therefore, there was no decency in determining the “1.1 Allocation Fee” among the fees that can be requested from consumers in order to operate the system that allows meeting the credit requirement and manage the operational processes.
Banks and financial institutions within the existing structures, automatic machine, which allows you to withdraw cash to the consumer through various banking for 24 hours every day of the week and in different places due to the cost of external financing and cash handling services provide rental, technical service and maintenance, etc. since they have to bear the costs, as a compensation for these costs “4.4. In determining the ”Cash Advance Withdrawal Fee” among the items dec may be charged by financial institutions, no situation has been identified that is contrary to the provisions of the above-mentioned legislation.
If the mandatory expenses incurred by banks and financial institutions are caused by the law and other legislation, the consumer must pay these expenses. Because these expenses collected by the bank are paid by the bank to the relevant public institution or organization, the banks do not have any profit from this situation. (For example, the Tax on Bank Insurance Transactions-BSMV 5%, Natural Disaster Insurance-DASK). Hence “5.7. There has been no decency in determining the payments made to Public Institutions and Organizations among the fees that can be requested from consumers.
- The dispute is the subject of litigation of the Regulation. article 1. when examining the section on the “2.1 Account Operating Fee” contained in Paragraph and October-1 related to it;
13 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers. article 1. in the paragraph; ”… The account operating fee may be accrued and collected in periods determined by the relevant organization on a customer-by-customer basis, regardless of the number of accounts of the financial consumer …” is included in the regulation.
Although there is no clear definition of the account operating fee in the Regulation subject to litigation, the defendant administration has stated in the defense petition that the account operating fee is “… As a fee arising from the operation of the account, as the name implies, the costs arising from the creation, control and maintenance of accounting records related to the account. it is defined as “.
On the other hand, Article 13 of the Regulation. article 1. in the paragraph, it is emphasized that the account operation fee will be accrued and charged to the financial consumer “on a customer-by-customer basis, regardless of the number of accounts”. In that case, the account operating fee, the number of accounts, the amount of the account, the number of transactions on the account, etc. since it is taken only on a client-by-client basis, without taking into account such considerations, the considerations specified in the defendant administration’s defense cannot be considered the basis of the account operating fee.
Accordingly, the regulation providing for the receipt of an “account operating fee”, the nature of which is not clearly indicated in the regulation that is the subject of the lawsuit, is 4/3 of the Law No. 6502, which is the basis of the Regulation. according to the article, it is contrary to the criteria that wages, commissions and expenses must be justified, reasonable and documented within the framework of established judicial decisions on this issue.
13 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers for the reasons described. article 1. by unanimous decision on the CANCELLATION of the part of the case for the “2.1 Account Operating Fee” contained in paragraph and Appendix-1 of the list, October 10 of the Regulation. the article and the first paragraph of Annex 1 in the list of “Allocated Costs 1.1, 4.4 withdrawal cash advance fee, the denial of some portion of payments to public institutions 5.7 “allocated costs” in terms of the majority of votes, with the other parts in terms of unanimity, the case was partially cancel, dump below in the form of rejection made partly completed 360,60-TL-half of the expenses of the trial on the plaintiff to the defendant of the plaintiff to be implemented by the remaining half to be given to the administration of, The tariff determined in accordance with the minimum wage law in 1980-TL attorney’s fees of the defendant to the plaintiff to be implemented by the administration to be issued in 1980-TL attorneys ‘ fees to the plaintiff by the defendant from the decision of the administration to be given the day after the announcement of 30 (thirty) days of administrative law to be reported to the offices of the board may be appealed to the parties, it was decided in the history of 06/02/2018.
VOTE AGAINST (X):
The case is referred to Article 10 of the Regulation on the Procedures and Principles regarding Fees to be Charged to Financial Consumers, which was published in the Official Gazette dated 03.10.2014 and numbered 29138 and entered into force. article 1. paragraph 13 of the article 1. it was opened with the request to cancel the fees under the name of “1.1 Allocation Fee, 2.1 Account Operation Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations” in the list of Annex-1 of the paragraph October
4 of the Law No. 6502 on Consumer Protection. article 3. in October paragraph;” The consumer cannot be charged an additional price for the actions that he expects to be performed decisively within the scope of the goods or services offered to him and which are among the legal obligations of the contract organizer, as well as for the expenses incurred by the contract organizer in his own interests. Consumer loans financial institutions and banks by the card issuer offered to the consumer that the consumer interest in the product or service that will be taken out of any fees, commissions and expenses with the types of procedures based on these principles and the spirit of this law and in accordance with the advice of the ministry in a manner that protects the consumer is determined by the banking regulation and Supervision Agency.” the rule has been introduced.
As it is clear from this regulation contained in the Law on Consumer Protection No. 6502, in the Regulation issued by the BRSA, when determining the costs, commissions and other fees that may be charged to consumers, it is necessary to make an arrangement in accordance with the conditions provided for in the Law. Accordingly, when determining the costs that can be taken from the consumer by the BRSA, it is necessary to regulate Consumer Protection in a way that conforms to the spirit of the Law and protects the consumer. The consumer requested from the spirit of the law in terms of costs determined by the brsa and the list of consumer protection to comply with the principle, the scope of these charges and fees offered to the consumer of the goods or services of the Issuer expects to be rightly done and the contract of the contract with the legal obligations of the issuer are located between the act of costs and lack of money made in accordance with their own interests that are built-in within the framework of the jurisprudence of the Supreme Court at the same time, justified, reasonable and must be documented.
Although there is no clear definition of the allocation fee in the Regulation, although Article 10/1 of the Regulation on litigation states that the allocation fee is charged “… for the purpose of operating the system that allows the loan needs to be met and managing operational processes …”, the defendant is in the defense petition filed by the administration, “allocated costs”S term imbalance between active and passive entities, banks and financial institutions and literature, “early payment risk” was used as a vehicle for providing it is stated that called hedging. 37 of the Law No. 6502 entitled “Early Payment”. article 2. “If the interest rate is determined to be fixed, if one or more payments are made before the due date by providing in the contract, an early payment compensation may be requested from the consumer by the housing finance organization. Early payment compensation may not exceed one percent for loans whose remaining maturity does not exceed thirty-six months, and two percent for loans whose remaining maturity exceeds thirty-six months, of the amount calculated by making the necessary interest deduction and paid early by the consumer to the housing finance organization. If the rates are set as variable, the consumer cannot be asked for compensation for early payment. considering that banks and financial institutions are protected against the aforementioned early payment risk by the provision of “allocation fee”, a second assurance is sought to be provided against the risks that banks and financial institutions have to endure by applying the “allocation fee”. When all these issues are evaluated together, it is not revealed that the allocation fee received by credit institutions from consumers is both a quality, elements, and a justified, reasonable and certifiable fee.
In this case, in the light of the explanations given above, 13 of the Regulation on the receipt of an “allocation fee”. article 1. in the section on the “allocation fee” contained in the paragraph October Annex-1, there is no compliance with the law and the legal regulation on its basis.
13 of the Regulation on the Procedures and Principles Related to Fees to be Charged to Financial Consumers for the reasons described. article 1. since it is considered that paragraph 1 and the “1.1 Allocation Fee” regulation contained in the October-1 list should be canceled, we do not agree with the majority’s decision.
