e-book2011

CONSUMER LAW

251

Decision of 13th Civil Chamber of High Court of Appeals

Regarding Application of Credit Card Fees

Att. Sedef Üstüner

The surcharges imposed on consumers by the banks under the name of

“fees” have been a subject of a debate for a long time. In order to inform the

consumers better and to have the discussions diminished, the decision of 13

Civil Chamber of High Court of Appeals dated 07.02.2011 and numbered

2010/3958 – 2011/1717 (the “Decision”) shall be examined below.

In the Decision, it is stated that the Bank has requested from the

credit card holder (“Consumer”) to give consent for a specified amount

of charge for the credit card with a notification and the card shall be

blocked if otherwise acted. Upon the contrary action to such request

by the Consumer, the credit card has been blocked by the bank. The

Consumer claimed a reinstatement by unblocking the card and further,

moral indemnity awards resulting from the blocking.

The Bank responded that none of the banks shall be obliged to issue

credit card to anyone who requests, and if it is issued, none of the parties

of an agreement can be forced to continue to execution of the agreement

and that both of the parties shall be entitled to terminate credit card

agreement at any time.

The Court of First Instance stated in its decision that the credit card

could not be blocked since the Bank cannot cease or refuse for providing

service unless there is a justifiable cause.

Upon the appeal against the decision, the High Court of Appeals

reversed the judgment with following justifications:

• The freedom of contract may be limited only by public order.

• Everyone is free to conclude any agreement and may not be forced

to continue to execution of agreements. The exception of this

principle is the “participation agreements” concluded by public

administration and institutions conducting public services.

Article of June 2011