The Decision of the Council of State that the Consumer Bank Cannot Receive Account Operating Fees

COUNCIL OF STATE 15. apartment
Basis: 2014/9570
Verdict: 2018/1194

Plaintiff : Consumer Problems Association
Acting Director : Av…

Respondent : Banking Regulation and Supervision Agency
Acting Director : Av…

Summary of the Case: Article 10 of the Regulation on the 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. article 1. of the clause, 13. article 1. it is requested 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 October-1 list of the paragraph.

Summary of the Defense : 4/3 of the Law No. 6502. the item will be taken out of any interest in fees, commissions and expenses where the authority is given the task types for the determination of the regulation of credit institutions by the institution in the preparation of the separate costs of separate items of interest when determining the interest rate in the case of adopting the method of determination of the regulation of these costs will be reflected in the interest rate in case of a cancellation, and that reason does not include the interest costs for a system that is selected, the selecting system would be subject to the judicial control of the control in terms of the appropriateness of, 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, The regulation stipulates that the account operating fee accrued separately for each account prior to the regulation can be accrued on a customer basis regardless of the number of accounts, an account operating fee predictable by the financial consumer has been implemented in accordance with the provisions of the Regulation on informing, the credit institution has a certain amount of money in the cash advance withdrawal transaction., 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 service requirements.

Opinion of the Audit 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 the case.October, Dec. in its article: “No additional price can be charged from the consumer for the actions that he rightly expects to be performed 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 has made in line with his own interests …”it is stated; 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, which allows the financial consumer to charge a loan allocation fee for consumer and housing finance loans. article 1. paragraph and the same nature, which may be charged by organizations, products or services are classified in October-1 “1.1.Since it is assessed that there is no compliance with the law in terms of ”Allocation Fee“, it should be canceled, the Regulation is requested to be canceled regarding the ”Account Operation Fee” 13. 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 “5.7 Payments Made to Public Institutions and Organizations” in the October-1 list, it is thought that the case should be dismissed, since there is no violation of the law and the legal regulation on which it is based.

Opinion of the Prosecutor of the Council of State: 4 of the Law on Consumer Protection published in the Official Gazette dated 28.11.2013, No. 28835. article 3. October, Dec. in paragraph; ”No additional fee can be charged from the consumer for the actions that he rightly expects to be performed 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 has made in his own interest. 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 the aforementioned regulation, the Banking Regulation and Supervision Agency issued a Regulation on the Procedural Principles regarding Fees to be Collected from Financial Consumers, some of the articles of which are the subject of this case, and published in the Official Gazette dated 10/3/2014, 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. in the article, the organizations“ “Banks, financial institutions providing consumer loans and card issuing organizations”; the fee is also; It is stated that it will express “all kinds of monetary amounts under the names of fees, commissions, expenses and similar requested from the financial consumer, except for interest, dividend, tax, fund and similar legal expenses”.

10 of the Regulation on the Procedures and Principles regarding the Fees to be Collected from Financial Consumers. article 1. in paragraph; ”No other fee can be charged for loans to be made available to financial consumers, except for the allocation fee received for the purpose of operating the system that allows meeting the credit needs and managing operational processes” regulation; 13. article 1. in the paragraph; ”… The account operating fee can be accrued and collected in the periods determined by the relevant organization on the basis of the customer, 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 Dec. In its article, it is emphasized that no fees can be charged for any 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. The Allocation Fee is”what, “2.1. Account Operating Fee”ne, “4.4. To the Cash Advance Withdrawal Fee” and “5.7. Payments Made to Public Institutions and Organizations” have been included; thus, it has been enabled for the organizations to which loans have been granted to receive the counted fees.

It is indisputable that the loan agreements concluded between the lending institutions, each of which is a private legal entity, and the real and legal persons receiving the loans with their free will are in the nature of a private Decency agreement. Within this framework, the parties may establish a relationship within the general framework of contract law, provided for in the contract. Therefore, administrative regulations that interfere with the freedom of contract of the parties would be unlawful.

On the other hand, lending institutions, which are private legal entities established for profit, charge loan interest to their customers to whom they lend, while they generally incur a burden for this activity, that is, while performing the loan transaction. Accordingly, it is natural that these burdens and expenses that credit institutions have incurred in general should also be reflected to the consumer.

However, the decisions of the Court of Cassation regarding loan agreements, taking into account consumer law; that the lending institution may only request mandatory, reasonable and certifiable expenses from consumers, have become established case law. Moreover, 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 Paid from Financial Consumers does not regulate in which cases, to what extent, the nature, the obvious reason and the scope of the payments and fees contained in the articles subject to litigation can be received.

Accordingly, the regulations subject to the case are the 4 of the Law No. 6502, which is the basis of the Regulation. article 3. in addition, it is contrary to the established case law of the Court of Cassation on this issue.

For the reasons explained, it is thought that the articles of the regulation subject to the case should be canceled with the acceptance of the case.

ON BEHALF OF THE TURKISH NATION

The explanations of the examination judge were listened to by the Fifteenth Chamber of the Council of State, which made the decision, the documents in the file were examined and discussed as necessary:

The case is based on the 10th Amendment of the Regulation on the 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. 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 cannot exceed five thousandths of the loan principal used. The Board is authorized to increase and decrease this limit if it deems it necessary.”, 13. article 1. paragraph of the “Account operation fee may be accrued and collected in the periods determined by the relevant organization on a customer basis, regardless of the number of accounts of the financial consumer. If the account is closed during the year, a fee corresponding to the period in which the account is open may be charged. There is no charge for account opening and closing transactions and passbook printing transactions.“it was opened with the request for cancellation of 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, entitled “Basic Principles”. article 3. the joke is; “From the consumer; October 2019 – No additional fee may be charged for the actions that the Decedent expects to be performed 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 has made in his own interest. 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 judgment.

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, financial institutions providing consumer loans and card issuing organizations with the said Regulation are determined in Annex-1, October 6 of the said Regulation. in the article, it is stated that no fee can 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 the Regulation’s lawsuit 10. the first paragraph of the article, which is attached in Appendix 1 “1.1 Allocated costs” and “4.4 cash advance withdrawal fee” and “payments to public institutions 5.7”examined the part of;

10 of the Regulation on the Procedures and Principles regarding the Fees to be Collected from Financial Consumers. article 1. in its paragraph; “For loans to be made available to financial consumers, no other fee can be charged other than the allocation fee received for the purpose of operating the system that allows meeting the credit needs and managing operational processes. The loan allocation fee cannot exceed five thousandths of the loan principal 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 made by banks and financial institutions that are considered merchants in the sense of Article 20 of the Turkish Commercial Code 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 de “(1) The characteristics and limits of the interest rates to be applied by Banks to loans other than rediscount-based loans, as well as the other benefits to be provided other than interest and the 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 Debit Cards and Credit Cards Law No. 5464.”by including its regulation, it allows banks and financial institutions to charge benefits 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. For this reason, there has been no Decriminalization in determining the “1.1 Allocation Fee” among the fees that can be requested from consumers for the purpose of operating the system that allows meeting the credit needs and managing 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, in return for these costs “4.4. In determining the ”Cash Advance Withdrawal Fee” among the items that can be charged by financial institutions, no situation contrary to the provisions of the legislation mentioned above has been Deciphered.

In the event that 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, and banks do not have any profit from this situation. (For example; Bank Insurance Transactions Tax-BSMV 5%, Natural Disaster Insurance-DASK). Therefore, “5.7. There has been no Decisiveness in determining the Payments Made to Public Institutions and Organizations among the fees that can be requested from consumers.

13, which is the subject of litigation of the dispute, the Regulation. article 1. when the paragraph and the part related to the “2.1 Account Operating Fee” in October-1 related to it are examined,;

13 of the Regulation on the Procedures and Principles regarding the Fees to be Collected from Financial Consumers. article 1. in the paragraph; ”… The account operating fee can be accrued and collected in the periods determined by the relevant organization on the basis of the customer, regardless of the number of accounts of the financial consumer … ” regulation is included.

Although there is no clear definition of the account operating fee in the Regulation subject to the case, the defendant administration, in its defense petition, defines the account operating fee as “… As a fee arising from the operation of the account, as the name implies, the costs arising from the preparation, control and maintenance of accounting records related to the account. he described it as “.
On the other hand, Regulation 13. article 1. in the paragraph, it is emphasized that the account operation fee will be accrued and collected by the financial consumer “on a customer basis, regardless of the number of accounts”. Then, the account operating fee, the number of accounts, the amount of the account, the number of transactions on the account, etc. since such issues are taken only on a customer basis without taking into account, the issues stated in the defendant administration’s defense cannot be accepted as the basis for the account operation fee.

Accordingly, the regulation that provides for the “account operation fee” to be charged, the reason of which cannot be clearly shown and the nature of which cannot be revealed in the regulation subject to the case, is 4/3 of the Law numbered 6502, which is the basis of the Regulation. with its article, it constitutes a violation of the criteria that fees, commissions and expenses must be justified, reasonable and documented within the framework of established judicial decisions on this issue.

For the reasons explained, 13 of the Regulation on the Procedures and Principles regarding Fees to be Collected from Financial Consumers. article 1. by unanimous consent, the cancellation of the part of the “2.1 Account Operation Fee” contained in the paragraph and October-1 list, the case was resolved by Article 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, It was decided on 06/02/2018 that the lawyer fee of 1.980TL determined in accordance with the Minimum Wage Tariff of the lawyer will be taken from the defendant administration and given to the plaintiff, the lawyer fee of 1.980TL will be taken from the plaintiff and given to the defendant administration, informing the parties that an appeal to the Administrative Litigation Department Board can be filed within 30 (thirty) days from the day following the notification of the decision.

VOTE AGAINST (X):

The case is based on the Article 10 of the Regulation on the Procedures and Principles regarding Fees to be Charged from Financial Consumers, which entered into force through publication in the Official Gazette dated 03.10.2014 and numbered 29138. article 1. of the clause, 13. 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 October-1 list of the paragraph.
4 of the Law No. 6502 on Consumer Protection. article 3. October, Dec. in paragraph; ”No additional fee can be charged from the consumer for the actions that he rightly expects to be performed 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 has made in his own interest. 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.
This regulation clearly in the Law No. 6502 on the protection of consumers in the regulations issued by the brsa, the consumers that can be taken from costs, commissions and other fees in determining, in accordance with the conditions prescribed in the law, an arrangement must be made. Accordingly, while determining the expenses that can be collected from the consumer by the BRSA, it is necessary to make arrangements in accordance with the spirit of the Law on Consumer Protection and in a way that 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 states that the allocation fee is charged “… for the purpose of operating the system that allows meeting the credit needs and managing operational processes …”, in the defense petition submitted to the file by the defendant 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. Article 37 of the Law No. 6502 entitled “Early Pay”. 2 of the article. paragraph of the “If the interest rate is determined as fixed, in the event that one or more payments are paid before the due date by being included in the contract, early pay compensation may be requested from the consumer by the housing finance institution. Compensation for early payment required by the housing finance institution and the consumer interest calculated by the deduction of the amount you paid for the remaining period early to thirty-six months of the remaining term loans that do not exceed one percent to thirty-six months in excess of the credits may not exceed two percent. 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 aforementioned early pay risk with the provision of “allocation fee”, it is being tried to provide a second assurance against the risks that banks and financial institutions have to bear with the application of “allocation fee”. When all these issues are evaluated together, it has not been revealed that the allocation fee received by credit institutions from consumers is both the nature, elements, and a justified, reasonable and certifiable fee.
In this case, in the light of the explanations given above, Article 13 of the Regulation on the receipt of the “allocation fee”. article 1. the section on “allocation fee” included in the October-1 list with paragraph does not comply with the law and the Legal regulation on its basis.
For the reasons explained, 13 of the Regulation on the Procedures and Principles regarding Fees to be Collected from Financial Consumers. article 1. since it is considered that the paragraph and the regulation “1.1 Allocation Fee” contained in the October-1 list should be canceled, we do not agree with the majority’s decision.

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