Cancellation Of Objection Court Of Cassation Decision
T.C. JUDICIARY
20th Civil Chamber
Main: 2016/2982
Decision: 2016/5377
Decision Date: 11.05.2016
CANCELLATION OF OBJECTION CASE – THE DISPUTE ARISES FROM THE BANK CREDIT CARD AGREEMENT – THE DISPUTE SHOULD BE RESOLVED BY THE CONSUMER COURT IN ACCORDANCE WITH THE LAW
SUMMARY: In the concrete case, the dispute arises from the bank credit card agreement and the lawsuit was filed on ………. after the entry into force of the Consumer Protection Law No. 6502. The defendant is not a merchant but a consumer pursuant to ……….. article of the Law No. 6502. In this case, the dispute should be resolved by the consumer court in accordance with the ………… articles of the aforementioned law.
(Art. 44 of Law No. 5464) (Art. 22, 23 of Law No. 4077) (Art. 447 of Law No. 6100) (Art. 3, 73, 83 of Law No. 6502) (Art. 21, 22 of Law No. 6100)
Case and Decision: All documents in the file sent for the determination of the place of jurisdiction in the cancellation of the objection case between the parties due to the fact that the Izmir 8th Consumer and Izmir 5th Commercial Court of First Instance decided to be out of jurisdiction separately, were examined and the necessity was considered:
The lawsuit is related to the cancellation of the objection.
Izmir 8th Consumer Court ruled for lack of jurisdiction by referring to Article 44/2 of the Bank Credit Cards Law No. 5464, which entered into force on 01/03/2006.
İzmir 5th Commercial Court of First Instance, on the other hand, ruled for lack of jurisdiction on the grounds that the dispute arises from the consumer transaction and that the consumer courts are authorized in accordance with the Law No. 6502.
In the first paragraph of Article 44 of the Bank Cards and Credit Cards Law No. 5464, which entered into force on 01.03.2006, it is stated that Articles 22 and 23 of the Law No. 4077 on the Protection of Consumers shall apply to the lawsuits to be filed by the “cardholder who is a consumer”. Articles 22 and 23 of the Law No. 4077 on the Protection of Consumers shall apply and therefore the consumer courts shall have jurisdiction, and in the second paragraph, it is stated that the provisions of the Code of Civil Procedure No. 1086 (since Article 447/2 of the Code of Civil Procedure No. 6100 states that the references made by other laws to the Code of Civil Procedure shall be deemed to have been made to the Code of Civil Procedure, this reference should be understood as the Code of Civil Procedure as of 01.10.2011) shall apply to the lawsuits to be filed by the “card issuers” against the cardholder. Article 43 of the same Law provides an exception to the main rule by stating that the provisions of Article 44 shall not apply to “corporate credit cards issued to merchants”.
However, 28.05. 3/1-(k) of the Law No. 6502 on the Protection of Consumers, which entered into force on 28.05.2014, states that natural or legal persons acting for commercial or non-professional purposes are “consumers”; In Article 3/1-(l), all kinds of contracts and legal transactions, including contracts of work, transportation, brokerage, insurance, proxy, banking and similar contracts, established between consumers and real or legal persons, including public legal persons, acting for commercial or professional purposes or acting on their behalf or account in the goods or services markets, are accepted as “consumer transactions” and the scope of the Consumer Law has been substantially expanded. Article 73/1 of the same Law stipulates that “consumer courts shall have jurisdiction in cases related to disputes that may arise from consumer transactions and consumer-oriented practices”, while Article 83/2 stipulates that “the existence of regulations in other laws regarding transactions in which a consumer is one of the parties does not prevent this transaction from being deemed as a consumer transaction and the provisions of this Law regarding jurisdiction and competence from being applied”. As it is stated in the Provisional Article 1/1 of the Law that the lawsuits “filed before the effective date of this Law” will “continue to be heard in the courts where they were filed”, the jurisdiction provisions in Article 44 of the Law No. 5464 will continue to be valid for the lawsuits filed before 28.05.2014. Since the Law No. 6502 includes all banking transactions (except for merchants not covered by Art. 3/1-k) within the scope of the law without making a distinction such as the cardholder or the issuer, and since the rules of jurisdiction in other laws shall not apply to disputes within the scope of this law in accordance with the provision of Article 83/2, the competent court for the cases filed after the entry into force of the Law No. 6502 shall be the consumer courts.
In the concrete case, the dispute arises from the bank credit card agreement and the lawsuit was filed on 16/12/2014 after the entry into force of the Consumer Protection Law No. 6502. The defendant is not a merchant but a consumer pursuant to Article 3/1-k of the Law No. 6502. As such, the dispute must be resolved by the consumer court in accordance with Articles 73/1 and 83/2 of the aforementioned law.
Conclusion For the reasons explained above, it was unanimously decided on 11.05.2016 to determine İzmir 8th Consumer Court as the place of jurisdiction in accordance with Articles 21 and 22 of the CCP No. 6100.