COUNCIL OF STATE 15. Apartment
Main: 2014/9570
The Verdict: 2018/1194
Plaintiff : Consumer Problems Association
Proxy : Av…
Defendant : Banking Regulation and Supervision Agency
Proxy : Av…
Summary of the Case: In accordance with Article 10 of the Regulation on Procedures and Principles regarding Fees to be Collected from Financial Consumers, which entered into force through publication in the Official Gazette dated 03.10.2014 and numbered 29138; 1. cancellation of fees included in the list of paragraph 13 of article 1 of October-1 under the name “1.1 Allocation Fee, 2.1 Account Operating Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations” is requested.
Summary of the defense : 4/3 of Law No. 6502. in the article, the Institution is given the task of determining all kinds of fees, commissions and expenses to be charged other than interest, when preparing the Regulation, the Institution adopts the method of determining the interest rate of credit institutions in separate items when determining the interest rate, if the regulation is canceled, these expenses will be reflected in the interest rate, so the cost items will not be included in the interest rate, the system will be selected, the selection of this system will be subject to judicial supervision instead of quality control, meri costs are not included when determining interest rates, also in our legislation, the instant prohibition of transaction fees that can confuse the consumer, which can be charged under different names, and
the introduction of an arrangement so that all these fees are limited to five per thousand in favor of the consumer instead of “allocated expenses” such as transferring the principal to the loan under one name and; In order to meet the needs of the consumer credit allocation fee credit, which allows the operation of the system and operational processes to be taken in accordance with the management purposes taken under the provision, whether it is provided to enable the consumer to control these fees, account money transfer requires qualitatively different costs and fees with different processes and therefore no repeated charges, Regulation regulation, the accrued operating expenses in the customer account, regardless of the number, are taken in such a way that they can be accrued under the provision,
A predictable fee is applied by operating within the framework of the relevant provisions of the Consumer Financial Regulation, the withdrawal process, a certain amount of money, a cash advance credit institution, ATMs located in many places, and this cost must be ready to be constantly adapted for a certain cost, and these costs are not included in the interest of the regulation, payments to public institutions cannot also be collected from the consumer if they are made clearly visible in the list where they are located by consumers, therefore, not to pay the fee, in the mentioned place, for reasons explained as case law, regulation, public interest, the case should be rejected by claiming that the administration complies with the principle of discretion and the requirements of the service.
Opinion of the Examination Judge of the Council of State: Article 4/3 of the Consumer Protection Law No. 6502, which is the main article of the Regulation related to the subject of the case. October October article;”The consumer rightly expects to be made within the scope of the goods or services offered to him and the legal obligations of the contract organizer and the contract organizer can not be charged an additional fee for the expenses made in his own interest…” it is said and; For the provision of loans to financial consumers, since it is understood that banks are included in the credit agreement regulating cash, non-cash lending transactions in all types and forms and among the legal obligations of banking law,
the loan allocation fee to the consumer at the rate of five thousand of the principal requested most in the lender’s contract is paid to the consumer “in order to protect against the risk of early payment made in accordance with the defendant’s interest, in exchange for the costs of administering the Defense specified in 37/2 of the Law on Banks and Financial Institutions No. 6502 Dec., early payment of the compensation provided for in the article is provided with a similar guarantee that, if paying fees under the name of credit allocation is allowed in the case, the credit allocation fee cannot document the defendant’s administration, the Supreme Court obliges, it can charge reasonable and certifiable costs to the consumer, otherwise the victim will be charged by the consumer,
Article 10 of Article 1 of the Regulation, which will require the acceptance of a certain amount of the provision contained in the relevant laws and regulations. paragraph 1. unfair established case law that allows a loan allocation fee to be charged from the financial consumer in relation to consumer and housing finance loans in accordance with the subparagraph. 13, dated October 1, 2008. article 1. paragraph 1. in accordance with the subparagraph, the products or services classified in the paragraph and of the same nature are classified in such a way that they can be collected by organizations. 13. Since it is assessed that there is no compliance with the law in terms of the ”Allocation Fee“, the Regulation on the ”Account Operating Fee”, which is requested to be canceled, must be canceled.
Article 1. Oct paid legal basis of the above-mentioned legislation “accounts 2.1 operating expenses” and “4.4 cash advance withdrawal fee” included in the list of annex 1, that the payment of these fees to the defendant by the administration is mandatory beyond the regulation, reasonable and legally valid, factual and objective information and documents supporting this issue can be documented in the directions provided, if there is no legal basis for the law and regulation,
it may be considered that the said regulation should be canceled, contrary to the above-mentioned legislation, legally valid, factual and objective information and documents supporting this issue can be documented in the directions provided, if there is no legal basis for the law and regulation., In terms of the article “Payments to Public Institutions and Organizations 5.7” included in the October-1 list,it is considered that the case should be dismissed because there is no violation of the law and legal regulation related to the merits of the case.
Opinion of the Prosecutor General’s Office of the Council of State: 4 of the Law on Consumer Protection published in the Official Gazette dated 28.11.2013 and numbered 28835. its substance. 3. October October paragraph of the article; “The consumer may not be charged an additional fee for the actions that he expects to be performed strictly within the scope of the goods or services offered to him and which are the legal obligations of the contract organizer and the expenses that the contract organizer makes in his own interest.
Consumer loans are determined by the Banking Regulatory and Supervisory Authority, where the consumer’s interest in the product or service offered to the consumer by financial institutions and banks will be exempted from all kinds of fees, commissions and expenses by procedures and principles that will be based on consumer protection in accordance with these principles and the spirit of this Law and in accordance with the recommendations of the Ministry.” the verdict has been delivered.
Pursuant to this regulation, a Regulation has been issued by the Banking Regulation and Supervision Agency on the Procedures and Principles regarding Fees to be Charged to Financial Consumers, and part of this regulation is the subject of our case, and the regulation was published in the Official Gazette dated 3.10.2014 and numbered 29138.
1. Purpose of the regulation; to determine the procedures and principles regarding the receipt of any kind of interest or profit share, fee, commission and expenses in relation to the products or services offered to consumers by financial institutions; 4. According to the article, organizations; “Banks, financial institutions that issue consumer loans and card issuing organizations”; fee will also refer to “all kinds of monetary amounts under the names of fees, commissions, expenses and similar names requested from financial consumers, except for interest, profit share, taxes, funds and similar legal expenses”.
10. Regulation on the Procedures and Principles regarding the Fees to be Collected from Financial Consumers. 1. in the paragraph of the article; “Other than the allocation fee received for the purpose of operating the system that allows meeting the loan requirement for loans to be used by financial consumers and conducting operational processes … no other fee may be charged.” arrangement; 13. in the paragraph of the article; ”… Account operating fee can be accrued and collected during the periods to be determined by the relevant organization on a customer basis, regardless of the number of accounts of the financial consumer …” regulation is included.
On the other hand, the Regulation is not subject to litigation 6. October October Decrees that there can be no fees for products and services other than those contained in this Regulation and its annex; among the fees that can be charged in Annex-1, “1.1. What is the Allocation Fee”, “2.1. Account Operating Fee” What is it, “4.4. The Cash Advance Withdrawal Fee is Based on ” and “5.7. The phrases “Payments to be Made to Public Institutions and Organizations” have been added; thus, it has been ensured that the institutions to which the loan has been granted can receive the calculated fees.
It is indisputable that the loan agreements concluded by their own free will between credit institutions, each of which is a private law legal entity, and individuals and legal entities receiving loans, are private law Decrees. Within this framework, the parties may establish relations within the general framework of the contract law provided for in the contract. For this reason, administrative regulations that interfere with the parties’ freedom of contract will be contrary to law.
On the other hand, lenders, which are private legal entities established for profit purposes, usually come under a burden for this activity, that is, when performing a loan transaction, collecting loan interest from lender customers. Accordingly, it is natural that these burdens and costs that lenders usually endure are reflected to the consumer as well.
However, the decisions of the Court of Cassation on loan agreements, taking into account consumer law, have become established case law; decisions that the lender can only demand mandatory, reasonable and certifiable expenses from consumers. However, it is also clearly emphasized in the Law that credit institutions cannot make October requests for expenses they make in their own interests.
The Regulation on the Procedures and Principles regarding Fees to be Paid from Financial Consumers does not provide any regulation on the circumstances in which and to what extent the payments and fees contained in the lawsuit petition may be received, their nature, clearly the reason and scope of the issues contained in the lawsuit petition.
Accordingly, the regulations subject to the lawsuit are 4 of Law No. 6502, which is the basis of the Regulation. the substance is the provisions. Article 3. In addition, it also constitutes a violation of the established case law of the Court of Cassation on this issue.
For the reasons explained, it is considered that with the acceptance of the case, the articles of the regulation related to the subject of the case should be canceled.
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 magistrate and examined the documents in the file and discussed them if it deems necessary:
10 1 of the Regulation on Procedures and Principles regarding Fees to be Collected from Financial Consumers, which entered into force through publication in the Official Gazette dated 03.10.2014 and numbered 29138. paid paid for the purpose of meeting the credit needs of consumers, except for the fee received for the purpose of allocation and management of business processes, intelligence fee, transaction fee, credit fee payment receipt, change of plan, payment plan, any variable or any other fee under whatever name may be charged.“The financial loans to be used for the purpose of satisfying the credit needs of consumers may be charged.
The loan allocation fee may not exceed one five thousandth of the principal amount of the loan used. The Board is authorized to increase or decrease this limit if it deems necessary.”, 13. the paragraph of the article “Account operating fee” can be accrued and collected on a customer basis during the periods determined by the relevant organization, regardless of the number of accounts of the financial consumer. If the account is closed during the year, a fee corresponding to the period when the account was opened may be charged. There is no charge for account opening and closing operations and passbook printing operations.
According to the provisions of the Regulation, it was opened with a request for cancellation of fees under the name “1.1 Allocation Fee, 2.1 Account Operating Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations” included in the October-1 list of the referred to Regulation.
1 of the Law No. 6502 on Consumer Protection entitled “Purpose”.
article: “The purpose of this Law is to protect the consumer in line with public health and safety and economic interests, to compensate damages and to take informative and informative measures to protect the consumer from environmental hazards, to create policies to encourage consumers’ attempts to protect themselves on these issues, and to encourage voluntary organizations to regulate on these issues. 4. The “Basic Principles” provision entitled “Basic Principles”. 3. the clause of the article; “From the consumer; no October fee may be charged for actions that he expects to be performed Decently within the scope of goods or services provided to him, as well as for actions that are among the legal obligations of the contract organizer, and for expenses that the contract organizer makes in his own interests.
Consumer loans are determined by the Banking Regulatory and Supervisory Authority in accordance with the principles of this Law and the spirit of this Law and in accordance with the recommendations of the Ministry, as well as any fees, commissions and expenses related to a product or service offered to the consumer by financial institutions and card issuing organizations that will be in the best interest of the consumer, as well as in a manner that protects the consumer.” it contains the judgment.
Financial Fees to be Collected from Consumers by Financial Institutions Financial Fees to be Collected from Consumers by Financial Institutions, prepared by the Banking Regulation and Supervision Agency (BRSA) and published in the Official Gazette dated 03.10.2014 and numbered 29138, These principles and types of transactions have been determined by the Regulation on Procedures and Principles for Collecting Fees, Commissions and Expenses over Any Interest or Profit Share Related to Products or Services Offered to Consumers. October October 6, 2014, after the Products and Services that can be Collected by Banks, Consumer Credit Institutions and Card Issuing Organizations are specified in Annex-1 of this Regulation, Article 2014/10 of this Regulation states that no fees can be charged for any product or service other than those contained in this Regulation and its annex. October 6, 2014, 2014, 2014.
Law No. 6502 provides for determining the expenses determined by the BRSA of regulatory fees, fees and commissions that can be collected from the consumer; determining whether they are in accordance with the spirit of the law and consumer protection, and whether they have criteria for being important by being determined by the case law of the Supreme Court and being justified, reasonable and documented.
The dispute constitutes the subject of making the Regulation the subject of litigation. When the relevant parts of the articles “1.1 Allocation Fee” and “4.4 Cash Advance Withdrawal Fee” and “5.7 Payments to Public Institutions and Organizations” included in October-1 with the first paragraph of the article are examined;
In paragraph 1 of Article 10 of the Regulation on the Procedures and Principles regarding Fees to be Charged to Financial Consumers; “Other than the allocation fee received for the purpose of operating the system that allows the loan requirement to be met for loans to be used to financial consumers and managing operational processes … no other fee may be charged. The loan allocation fee cannot exceed one five thousandth of the principal amount of the loan used. The Board is authorized to increase or decrease this limit if it deems it necessary.” the arrangement is located at.
116 Of the Turkish Commercial Code. 20 of the Turkish Commercial Code in exchange for transactions made or services provided by banks and financial institutions deemed to be merchants within the scope of the first paragraph of the article. it is clear that they have the right to charge their customers and consumers in accordance with the article.
The authority of the Council of Ministers, in accordance with the communiqué published in the Official Gazette dated 15.11.2014 and numbered 29176, is based on Regulation No. 2006/1 on deposit and loan interest rates No. 2014/6, as well as Central Bank Credit Profit and Loss Participation Accounts and interest rates to be provided for participation in other interest transactions No. 4. it is regulated by the article. Article 1 ”
(1) The interest rates to be applied to loans other than discounted loans by banks, as well as the qualifications and limits of other benefits to be provided other than interest and expenses to be collected, are determined freely.
(2) The principles regarding the provisions of the interest and other interest on consumer loans to be provided in respect of the expenses determined by the regulation published by the Banking Regulation and Supervision Agency in the Official Gazette dated 3/10/2014 and numbered 29138 published in the Official Gazette numbered 4737 and the financing fees to be collected from consumers are reserved.
(3) The maximum contractual and late interest rates to be applied to overdraft accounts may not exceed the maximum rates determined by the Central Bank of the Republic of Turkey in accordance with Article 26 of the Bank Cards and Credit Cards Law No. 5464.” by including the regulation, banks and financial institutions have been allowed to charge interest and non-interest fees 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. Therefore, a number of banks and financial institutions that are under supervision and control of public expenses arising from consumer loans cannot be expected to reflect interest in a way that can be considered appropriate by accounting, provided that they can only charge consumers a number of documented costs and fees that are reasonable, justified and meet the conditions within the framework of items and regulations. Therefore, there was no Deciency in determining the “1.1 Allocation Fee” among the fees that can be charged from consumers for the purpose of operating the system that allows the loan requirement to be met and managing operational processes.
Banks and financial institutions have within their existing structures an automatic machine that allows cash withdrawal to the consumer through various banking channels 24 hours a day, 7 days a week, rent, technical service and maintenance due to the external financing cost of cash withdrawal services and cash transaction costs, etc. since they have to bear their expenses, for the purpose of compensating for these expenses, “4.4. In determining the “Cash Advance Withdrawal Fee”, which is among the agreed items that can be received by financial institutions, no situation contrary to the above-mentioned legislative Decrees has been identified.
If the mandatory expenses that banks and financial institutions are obliged to make are due to the law and other legislation, the consumer must pay these expenses. Since 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, Bank Insurance Transactions Tax-BSMV 5%, Natural Disaster Insurance-DASK). Hence “5.7. There has been no Decencies in determining the payments made to Public Institutions and Organizations among the fees that may be charged from consumers.
Dispute, Regulation 1. 2 of the article. in the examination of the section entitled “2.1 Account Operating Fee” contained in the paragraph and the provision of October-1 related to it;
Paragraph 1 of Article 13 of the Regulation on the Procedures and Principles regarding Fees to be Charged to Financial Consumers contains the provision “… Regardless of the number of accounts of the financial consumer, account operating fees may be accrued and collected on a customer basis and for periods to be determined by the relevant organization …”.
Although there is no clear definition of the account operating fee in the Regulation subject to trial, the defendant administration stated in the defense petition that the account operating fee is “… the 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”.
On the other hand, Regulation 13. article 1. in the paragraph, it is emphasized that the account operating fee will be accrued and collected to the financial consumer “on a customer basis, regardless of the number of accounts”. In this case, the account operating fee, the number of accounts, the account amount, the number of transactions made on the account, etc. since it is taken only on a customer basis, it is not possible to evaluate the issues stated in the defense of the defendant administration as the basis of the account operating fee without taking into account such issues.
Accordingly, the regulation on the receipt of “account operating fee”, the nature of which is not explicitly stated in the regulation subject to the case, is included in Article 4/3 of Law No. 6502, which is the basis of the Regulation. According to the article, it is contrary to the criteria that fees, commissions and expenses are justified, reasonable and documented within the framework of established judicial decisions on this issue.
13 Of the Regulation on Procedures and Principles Related to Fees to be Collected from Financial Consumers. article 1. October October 10, 2013 For the reasons explained in the paragraph, it was unanimously decided to CANCEL the case related to the article “2.1 Account Operating Fee” contained in the ANNEX-1 of the Regulation dated October 10, 2013. 1.1, 4.4 Withdrawal of the cash advance fee, rejection of part of the payments made to public institutions 5.7 Majority of votes in terms of “allocated expenses”, unanimous in terms of other parts, partial cancellation of the case,
partial completion of the sub-breakdown in the form of rejection, 360.60-TL-half of the trial expenses should be given to the plaintiff, the remaining half to the administration, according to the tariff established in accordance with October 1st, paragraph one of the first paragraph of Annex 1 1980-Application of the attorney’s fee of TL to the defendant by the administration, 1980-It may be objected that the attorney fee of TL should be given to the defendant within 30 (thirty) days from the decision of the administration and notified to the board offices within 30 (thirty) days from the announcement of the administrative law. A decision was reached between the parties on Dec. 06/02/2018.
VOTE AGAINST (X):
The case is based on Article 10 of the Regulation on Procedures and Principles regarding Fees to be Collected from Financial Consumers, which entered into force through publication in the Official Gazette dated 03.10.2014 and numbered 29138. it is related to the substance. 10 of the Regulation on Procedures and Principles regarding Fees to be Applied to Financial Consumers, which entered into force through publication in the Official Gazette No. 6502 on Consumer Protection dated October 4, 2014 and numbered 29138. the first paragraph of article 13. pursuant to paragraph 6502 of the Law on Consumer Protection
October October 4, 2014 and numbered 2014/10 was opened with the request of cancellation of fees received under the name of “1.1 Allocation Fee, 2.1 Account Operating Fee, 4.4 Cash Advance Withdrawal Fee, 5.7 Payments to Public Institutions and Organizations” included in the annex dated.2014/10.
Oct Decrees that the consumer shall not be charged an additional fee for the actions that he expects to be performed strictly within the scope of the goods or services offered to him and which are among the legal obligations of the contract organizer and the expenses that the contract organizer makes in his own interest.
Consumer loans, financial institutions and banks have introduced the rule that any fees, commissions and expenses that will cover the consumer’s interest related to the product or service offered to the consumer by the card issuer will be determined by the Banking Regulatory and Supervisory Authority in a way that protects the consumer in accordance with the procedures and principles based on these principles and the spirit of this Law, as well as the recommendations of the Ministry.”
As it can be understood from this regulation contained in the Consumer Protection Law No. 6502, in the Regulation issued by the BRSA, it is necessary to make an arrangement in accordance with the conditions stipulated in the Law in determining the costs, commissions and other fees that can be reflected to consumers. Accordingly, in determining the costs that can be charged by the BRSA to the consumer, it is necessary to regulate in a manner that is in accordance with the spirit of the Consumer Protection Law and protects the consumer. The principle that the consumer demands in accordance with the spirit of the law in terms of the costs and consumer protection lists
determined by the BRSA, the scope of these fees and the fees that the exporter expects to be performed correctly by the goods or services offered to the consumer must be complied with, and the legal obligations of the exporter and the contract must also be justified Decently and Decertified within the framework of the case law of the Supreme Court, which includes the costs between the contract and the free payments made in his own interests.
Although there is no clear definition of the allocation fee in the regulation, 10/1 of the Trial Procedure Regulation. although it is stated in the article that the allocation fee was paid “… for the purpose of operating the system that allows meeting the loan requirement and managing its operational processes …”, in the defense petition filed by the defendant administration, it was stated that the term “allocated expenses” is intended to eliminate the imbalance between active and passive parties, banks and financial institutions, and in the literature, it is called “hedge” by providing a tool called “early payment risk”. Dec. 37 of the Law No. 6502 entitled “Paying Early”.
in the article; Article 2. Paid paid compensation “In case the interest rate is determined as fixed, in case one or more payments are made before the due date by a provision in the contract, early payment compensation may be requested from the consumer by the housing finance institution. Pay paid early compensation may not exceed one percent of the amount calculated by making the necessary interest deduction and paid early by the consumer to the housing finance institution for loans with a remaining maturity not exceeding thirty-six months, and two percent for loans with a remaining maturity exceeding thirty-six months. In case the rates are determined as variable, early pay compensation cannot be requested from the consumer.
Considering that banks and financial institutions are protected against the above-mentioned early payment risk by the provision of “allocation fee”, it is requested to provide a second guarantee against the risks that banks and financial institutions have to pay by applying “allocation fee”.
When all these issues are evaluated together, it does not turn out that the allocation fee that credit institutions receive from consumers is both a qualified, elemental, justified, reasonable and certifiable fee.
In this case, in the light of the explanations made above, the Regulation 13. the article is related to the receipt of the ”Allocation Fee”. Article 1. October October There is no compliance with the Law and the legal regulation based on the section related to the “Allocation Fee” contained in the Annex-1 paragraph.
13 Of the Regulation on Procedures and Principles regarding Fees to be Charged from Financial Consumers for the reasons explained. since it is considered that the “Allocation Fee” regulation should be canceled, we do not agree with the majority’s decision.