Council of state 15. APARTMENT
Basis: 2014/9570
Verdict: 2018/1194

Plaintiff : Consumer Issues Association
Deputy: …

Defendant: Banking Regulation and Supervision Agency
Deputy: …

Summary of the case: Regulation on procedures and principles regarding fees to be received from financial consumers, which was published in the Official Gazette dated 03.10.2014 and numbered 29138, 10. Article 1. paragraph 13. Article 1. “1.1 allocation fee, 2.1 account operating fee, 4.4 cash advance withdrawal fee, 5.7 payments to public institutions and institutions” in the Annex-1 list of the paragraph is requested for cancellation of the fees under the name.

Summary of Defence: Act No. 6502 4/3. in order to determine the types of fees, commissions and expenses to be taken out of interest, in the preparation of the regulation, the institution adopts the method of determining the interest rate of credit institutions as separate items, in case of cancellation of the regulation, these costs will be reflected to the interest rate, therefore, a system that does not include the, in our Mer legislation, when setting interest rates, the costs are not included in this, which may confuse the consumer, fees that can be demanded under different names at the time of the transaction are prohibited, all these fees are replaced by a single name such as “allocation fee” and credit principal amount is limited to five thousand of a regulation in favor of the consumer; the credit allocation fee is to be taken for the purpose of operating the system that allows the consumer to meet the credit needs and managing the operational process, allowing the consumer to check whether this fee is unfair, the account operating fee and money transfer transactions are different in nature and require different costs, and therefore there is no duplicate remuneration, It is stipulated that the account operating fee accrued separately for each account can be accrued on a customer basis independent of the number of accounts before the regulation is made, that a predictable account operating fee is implemented by the financial consumer within the framework of the provisions of the regulation regarding information, that a certain amount of the credit institution, in many locations and cash machines, it is necessary to have a certain cost and since this cost is not included in interest, it is included in the regulation, the payments made to public institutions and organizations are listed in order to be seen clearly by consumers, also the consumer can not be charged a fee, therefore it is called payment,, it is argued that the case should be dismissed, claiming that the administration complies with the principle of discretion and service requirements.

Council of State Audit Judge opinion: 4/3 of the Law No. 6502 on Consumer Protection, which is the basis article of the regulation in question.in the article: “the consumer can not claim an additional price for the actions that he expects to be done rightly within the scope of the goods or services offered to him and which are among the legal obligations of the organizer of the contract and the costs that the organizer has made in accordance with his own interest…” ; it is understood from the banking law that the banks regulating the credit contract are among the legal obligations of lending in cash and non-cash in all forms and forms, and that the credit allocation fee, which is at most five per thousand of the credit principal requested from the consumer, is in exchange for the expenses that are incurred in accordance with the interest of the, 37/2 of Law No. 6502 on banks and financial institutions. in accordance with the established case law of the Court of Cassation, the provision that an additional fee can not be claimed and that a similar guarantee has been provided with early payment compensation, that a fee is allowed to be charged under the name of credit allocation fee, that the defendant administration cannot certify the credit allocation fee, that the mandatory, reasonable and certifiable costs, Article 10 of the regulation allowing the financial consumer to receive credit allocation fees in relation to consumer and housing finance loans. Article 1. paragraph “1.1 ” in Annex-1, which classifies products or services that may be charged by organizations of the same nature.13 regarding the” account operating fee “for which the regulation is requested to be cancelled as it is evaluated that there is no compliance with the law in terms of allocation fee”. Article 1. “2.1 account operating fee” and ” 4.4 cash advance withdrawal fee ” listed in Annex-1 with the paragraph above, in the scope of the above mentioned subject matter, the basis of which exceeds the legal regulation, the defendant administration that such fees are mandatory, reasonable and certifiable, and that the provision of legally valid, concrete and objective information and documents to prove this issue, in the face of the, Annex – 1 in the list of “5.7 payments to public institutions and institutions” article in terms of the law and the basis of the legal regulation does not contradict the case is considered to be rejected.

Opinion of the prosecutor of the Council of State : 28.11.2013, published in the Official Gazette No. 28835 law on Consumer Protection 4. Article 3. in the paragraph, ” the consumer can not be charged an additional price for the actions that he expects to be done rightly within the scope of the goods or services offered to him and which are among the legal obligations of the organizer of the contract and the costs that the organizer has made in accordance with his own interest. Financial institutions and banks consumer loans is offered by the card issuer to the consumer, 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 advice of ministry in accordance with the spirit of this law in a manner that protects the consumer and is determined by the banking regulation and Supervision Agency.”the rule has been introduced.

Based on the aforementioned regulation, a regulation on the principles of procedures concerning fees to be collected from financial consumers, some of which are subject to this lawsuit by the Banking Regulation and Supervision Agency, has been issued and published in the official gazette No. 29138, dated 3.10.2014.

Regulation 1. Article 4 the purpose of this regulation is to determine the types of fees, commissions and charges to be received by organizations in relation to products or services offered to financial consumers, except interest or dividends, as well as the procedures and principles related to them. in the article, the institutions; “banks, consumer credit financial institutions and card issuing institutions”; also the fee; It is stated that it shall mean” any monetary amount under the names of fees, commissions, expenses and similar other than interest, dividends, taxes, funds and similar legal expenses from the Financial Consumer”.

10 of the regulation on procedures and principles relating to fees to be collected from financial consumers. Article 1. “no other fee shall be charged except the allocation fee for the purpose of operating the system that allows the credit requirement to be met for the loans to be made available to financial consumers and managing the operational processes” regulation; 13. Article 1. in the paragraph, ” … account operating fee can be accrued and collected in periods determined by the relevant organization on the basis of the customer, regardless of the number of accounts of the financial consumer … ” is included in the regulation.

On the other hand, Regulation 6, which is not subject to litigation. in the article, it is emphasized that no fees can be charged for any products or services other than those contained in this regulation and its annex; among the fees that can be received in Annex-1 is “1.1. Allocation fee “what, ” 2.1. Account operating fee “what, ” 4.4. Cash advance on the shooting fee “and ” 5.7. Payments made to public institutions and institutions”are included; thus, it is possible for the institutions given loans to receive the fees counted.

It is indisputable that the loan agreements between the lending institutions, each of which is a private law legal person, and the real and legal persons receiving the loan, are of the nature of private law contracts. Within this framework, the parties may establish relations within the general framework of contract law, provided that they are provided for in the contract. Therefore, administrative arrangements that interfere with the parties ‘ freedom of contract would be unlawful.

On the other hand, lenders, which are private legal entities established for profit, collect loan interest from the customers they loan, for this activity, that is, in the process of performing the loan, generally bear a burden. Accordingly, it is natural to reflect these burdens and expenses that lenders have incurred in general.

As banks and financial institutions offer various banking and cash credit usage services to the Consumer every day and 24 hours of the week in different locations through machines that enable automatic cash withdrawal within their existing structures, rent, technical service and maintenance, etc., except for financing costs. as they must bear the costs, they must pay for these costs “4.4. In determining the cash advance withdrawal fee”among the items that can be charged by financial institutions, no contravention of the provisions of the above-mentioned legislation has been found.

In case of compulsory expenses incurred by banks and financial institutions arising from the law and other legislation, the consumer has to pay these expenses. Because these expenses collected by the bank are paid by the bank to the relevant public institution or institution and the banks do not have any gain from this situation. (E.g. Bank Insurance Transactions Tax-BSMV 5%, natural disaster insurance-DASK). Hence “5.7. Payments to public institutions and organizations”fees that can be demanded from consumers in determining the law has not been seen.

The dispute is the case of regulation 13. Article 1. the section on “2.1 account operating fee”which is included in the paragraph and its attached Annex-1 is examined.;

13 of the regulation on procedures and principles concerning fees to be collected from financial consumers. Article 1. in the paragraph, ” … account operating fee can be accrued and collected in periods determined by the relevant organization on the basis of the customer, 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 stated in the administration’s 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 making, controlling and maintaining the accounting records related to the account. he has described it as”.
On the other hand, regulation 13. Article 1. in the paragraph, it is emphasized that the account operating 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 in the account, etc. since such matters are taken on a customer basis only without consideration, the matters stated in the defense of the defendant administration cannot be considered as the basis of the account operating fee.

Accordingly, the regulation requiring the receipt of “account operating fee”, which clearly shows the reason in the regulation subject to the lawsuit and whose nature cannot be revealed, is the basis of the Regulation, Law No. 6502, 4/3. the article contravenes the criteria that fees, commissions and expenses should be justified, reasonable and documented within the framework of established judicial decisions on this subject.

Article 13 of the regulation on the principles and procedures for fees to be collected from Financial Consumers for the reasons described. Article 1. Article 10 of the regulation of the case, by unanimous consent to the cancellation of the section on “2.1 account operating fee”in the list of paragraph and Annex-1. the first paragraph of the article and Annex-1 list of “1.1 allocation fee, 4.4 cash advance withdrawal fee, 5.7 payments to public institutions and organizations”for the rejection of the portion of the “allocation fee” in terms of the majority of votes, other parts of the case, partially annulled, partially resulted in rejection in the form of 360,60-TL trial expenses, which are listed below to be left on the plaintiff, the remaining half, It was decided on 06/02/2018 that the attorney’s fee of TL 1.980 will be taken from the defendant’s administration and given to the plaintiff, and the attorney’s fee of TL 1.980 will be taken from the plaintiff and given to the defendant’s administration, and that the parties will be notified that they can appeal to the Board of Administrative Litigation offices within 30 (thirty)

VOTE AGAINST (X):

Case; 03.10.2014 dated and 29138 published in the Official Gazette No. 10 of the regulation on the principles and procedures regarding fees to be received from financial consumers. Article 1. paragraph 13. Article 1. “1.1 allocation fee, 2.1 account operating fee, 4.4 cash advance withdrawal fee, 5.7 payments to public institutions and institutions” in the Annex-1 list of the paragraph was opened with the request for cancellation of the fees under the name.
4 of the Law No. 6502 on Consumer Protection. Article 3. in the paragraph, ” the consumer can not be charged an additional price for the actions that he expects to be done rightly within the scope of the goods or services offered to him and which are among the legal obligations of the organizer of the contract and the costs that the organizer has made in accordance with his own interest. Financial institutions and banks consumer loans is offered by the card issuer to the consumer, 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 advice of ministry in accordance with the spirit of this law in a manner that protects the consumer and is determined by the banking regulation and Supervision Agency.”the rule has been introduced.
As is clearly understood from this regulation contained in the law on Consumer Protection No. 6502, the regulation issued by BRSA requires that an arrangement in accordance with the conditions stipulated in the law be made while determining the costs, commissions and other fees that can be collected from consumers. Accordingly, while determining the costs that can be incurred by the BRSA from the consumer, regulation on the protection of the consumer must be made in accordance with the spirit of the law and in a way that protects the consumer. In order for the list determined by the Brsa in respect of the costs demanded from the consumer to be in accordance with the spirit of the law and the principle of consumer protection, it is imperative that these costs and fees be justified, reasonable and documented in accordance with the legal obligations of the organizer of the contract and the actions
Although a clear definition of allocation fee is not made in the regulation, although article 10/1 of the regulation is stated that allocation fee is charged “… for the purpose of operating the system that allows the credit requirement to be met and managing the operational processes”, the defense petition submitted to the file by the defendant administration stated that, it is stated that the”allocation fee “is used as a means of hedging due to the maturity imbalance between the assets and liabilities of banks and financial institutions, which is referred to in the literature as” early payment risk”. Act No. 6502 entitled “Early Payment” 37. Article 2. “in the event that one or more payments are made before their due date, in the event that the interest rate is fixed, an early payment compensation may be requested from the consumer by the Housing Finance Corporation, provided that the contract is set as fixed. Early payment compensation the amount paid by the consumer to the Housing Finance Institution, calculated by making the required interest deduction, may not exceed one percent on loans whose remaining maturity does not exceed thirty-six months, and two percent on loans whose remaining maturity exceeds thirty-six months. If the rates are determined as variable, an early payment compensation cannot be claimed from the consumer.“considering that banks and financial institutions are protected against the mentioned early payment risk, a second assurance is sought against the risks that banks and financial institutions have to endure with the application of” allocation fee”. When all these issues are evaluated together, it is not revealed that the allocation fee received from consumers by the lending institutions is both the nature, the elements, and a justifiable, reasonable and certifiable fee.
In this case, in the light of the explanations given above, the 13th amendment of the regulation on the receipt of “allocation fee”. Article 1. paragraph and Annex – 1 “allocation fee”in the list of the section on the law and the basis of the legal regulation is not adapted.
Article 13 of the regulation on the principles and procedures for fees to be collected from Financial Consumers for the reasons described. Article 1. we disagree with the majority’s decision, as it is thought that the clause and the “1.1 allocation fee” arrangement in the Annex-1 list should be cancelled.