The Consumer Arbitration Committee is an institution established under the Law No. 6502 on the Protection of Consumers, aimed at resolving disputes arising from transactions between individuals who are legally considered consumers and merchants, through legal means.
Article 66 of Law No. 6502
(1) (Amended: 24/3/2022-7392/12) The Ministry is responsible for establishing consumer arbitration committees to resolve disputes arising from consumer transactions and practices directed at consumers. The scope of authority and division of duties of the consumer arbitration committees are determined by the Ministry.
(2) The presidency of the consumer arbitration committee in provinces is carried out by the provincial director of trade, and in districts, by the district governor or an officer appointed by them; the consumer arbitration committee consists of five members, including the president, as follows:
a) A member appointed by the mayor from among the municipality staff who are experts in the subject matter,
b) A member appointed by the bar association from among its members,
c) In disputes where the seller is a merchant, a member appointed by the Chamber of Commerce and Industry, or by the Chamber of Commerce in places where they are separately organized; in disputes where the seller is a tradesman or artisan, a member appointed by the union of tradesmen and artisans in the provinces, or by the tradesmen and artisans’ chamber with the most members in the districts,
ç) A member selected by consumer organizations from among themselves.
The president and members, including their alternates who meet the qualifications specified in this paragraph, are also appointed. (Additional sentences: 11/7/2020-7249/26) In provinces with multiple bar associations, the appointment of members to the provincial and district consumer arbitration committees is made based on equal and rotating representation of the bar associations. The procedures and principles related to the appointments are specified in the regulation prepared by the Union of Turkish Bar Associations.
(3) In places where the formation of the consumer arbitration committee cannot be achieved, the missing members are appointed from among state civil servants who meet the membership qualifications determined by the regulation. In provinces, the provincial director of trade, and in districts, the district governor, will complete the missing members.
A monetary limit has been set according to the Law No. 6502 for consumers to be able to apply to the consumer arbitration committee. According to Article 67 of Law No. 6502, the monetary value of the dispute subject to the application to the consumer arbitration committee must be under 66,000.00 TL. Disputes with a monetary value of less than 66,000.00 TL may be submitted to the competent consumer arbitration committee. When determining the competent consumer arbitration committee, the consumer’s place of residence or the location of the consumer transaction is taken into consideration. If there is no consumer arbitration committee in these locations, the district governor’s office of the preferred location may be approached.
After an application is made to the consumer arbitration committee, a legally permissible appeal path is available against the decision made by the committee after carrying out the necessary investigations. Appeals against the decisions of the consumer arbitration committees are regulated in Article 70 of Law No. 6502 on the Protection of Consumers. According to this article:
ARTICLE 70- (1) (Amended sentence: 24/3/2022-7392/14) The decisions of the consumer arbitration committees are binding on the parties. (Additional sentence: 10/9/2014-6552/140) Consumer arbitration committees cannot decide on the payment of attorney’s fees.
(2) (Amended sentence: 24/3/2022-7392/14) The documents that need to be notified by the consumer arbitration committee to the parties or their representatives shall be notified electronically in accordance with the provisions of Article 107/A of Law No. 213. In cases where electronic notification is not possible, the provisions of the Notification Law No. 7201 dated 11/2/1959 shall apply. The decisions of the consumer arbitration committee are enforced in accordance with the provisions of the Enforcement and Bankruptcy Law regarding the execution of judgments.
(3) The parties may appeal the decisions of the consumer arbitration committee within fifteen days from the notification date to the consumer arbitration committee or the consumer court in the place where the consumer resides. The appeal does not suspend the execution of the consumer arbitration committee’s decision. However, upon request, the judge may suspend the execution of the consumer arbitration committee’s decision by precautionary measure.
(4) If the decision being appealed is in accordance with the law on the merits but contains an error in the application of the law to the case, or if there is no need for retrial regarding the issue that does not comply with the law, the consumer court may affirm the decision by changing or correcting it, based on the documents. This provision also applies to errors related to the identity of the parties, their trade names, writing, calculation, or other obvious expression mistakes. If the decision is procedurally and legally correct but the reasoning is found to be incorrect, the reasoning may be changed or corrected, and the decision may be affirmed.
(5) The decision of the consumer court regarding the appeal against the decisions of the consumer arbitration committee is final.
(6) In the appeals against the decisions made by the consumer arbitration committees in favor of the consumer, in the case of annulment of the decision, the attorney’s fee shall be determined based on the proportional tariff according to the minimum attorney’s fee tariff. (Additional sentence: 24/3/2022-7392/14) However, if information or documents that were available but not presented to the consumer arbitration committee are presented to the consumer court and the decision is annulled, no litigation costs or attorney’s fees may be awarded against the consumer.
(7) In the decisions made by the consumer arbitration committees against the consumer, the notification and expert fees are covered by the Ministry. If the dispute results in favor of the consumer, the notification and expert fees are collected from the opposing party according to the provisions of the Law No. 6183 on the Collection of Public Receivables dated 21/7/1953 and recorded as revenue in the budget.
Persons Who Can Appeal Against the Consumer Arbitration Committee
It is possible to appeal against the decision made by the consumer arbitration committee as a result of an application made due to a dispute between the consumer and the trader. The individuals who can file an appeal against the decision of the consumer arbitration committee are those who are parties to the dispute, namely the consumer party and the other party involved in the dispute, such as the seller, supplier, or individuals or legal entities acting on their behalf, as specified in the law.
Conditions Required to File an Appeal Against the Decision of the Consumer Arbitration Committee
In order to file an appeal against the decision of the Consumer Arbitration Committee regarding a dispute between the consumer and the seller/provider, there must be a decision issued by the competent Consumer Arbitration Committee on the related dispute.
One of the conditions for the acceptance of an appeal against the decision of the Consumer Arbitration Committee is that the appeal must be filed by the parties involved in the decision made by the Consumer Arbitration Committee. The parties to the dispute that is the subject of the decision are the persons authorized to file an appeal against the decision of the Consumer Arbitration Committee.
One of the conditions for the acceptance of an appeal is that the decision regarding the dispute must have been duly notified to the parties involved.
In order to file an appeal against the decision of the Consumer Arbitration Committee, the parties must have a legal interest in filing the lawsuit. Legal interest is a general condition for filing a lawsuit as regulated under the Civil Procedure Code. If the party filing the lawsuit does not have a legal interest in doing so, the court will dismiss the case.
One of the most important conditions for filing an appeal against the decision of the Consumer Arbitration Committee is compliance with the statute of limitations. After the decision of the Arbitration Committee has been duly notified to the parties, they have a 15-day statutory deadline to file an appeal. The judge will consider the statutory deadline ex officio, and if the case is found to have been filed outside the time limit, it will be dismissed.
The Court Competent and Authorized to Hear an Appeal Against the Consumer Arbitration Committee
In an appeal case against the decision of the consumer arbitration committee regarding a dispute between the parties, the court responsible for hearing the case is the consumer court, according to the Civil Procedure Code. However, if there is no consumer court in the location where the case is to be filed, the appeal case will be filed in the civil court of first instance, acting as a consumer court in that place. The location of the competent consumer court for filing an appeal against the decision of the consumer arbitration committee can be determined according to the Civil Procedure Code. Accordingly, the competent court for filing an appeal against the consumer arbitration committee’s decision is the court of the location where the consumer arbitration committee that made the decision is based or the consumer’s place of residence. The appeal case will be filed in the consumer court located at either the consumer’s place of residence or the place where the consumer arbitration committee is based.
Procedural Rules in an Appeal Case Against the Decision of the Consumer Arbitration Committee
In an appeal case against the decision of the Consumer Arbitration Committee, the simplified trial procedure is applied as a rule. The decisions made by the court as a result of the trial process constitute a final judgment. Therefore, in an appeal case against the decision of the Consumer Arbitration Committee, there is no authority for the parties to appeal the judgment made by the court, and thus there is no possibility of appealing the decision of the court. For this reason, the objections raised in the appeal case against the decision of the Consumer Arbitration Committee must be explained with specific facts and reasoned arguments. Otherwise, decisions that have the nature of a final judgment could lead to the parties losing their rights.
The consumer court, as a result of the appeal case, will make a ruling in accordance with Article 70/4 of the Consumer Protection Law (TKHK). According to Article 70/4 of the TKHK, “If the decision being appealed is in accordance with the law on its substance, but the appeal should be accepted due to an error in the application of the law to the case, or if the matter that does not comply with the law does not require a retrial, the consumer court may approve the decision by altering or correcting it on the file. This provision also applies to mistakes related to the identities of the parties, their business names, and mistakes in writing, calculation, or other obvious expressions. If the decision is in accordance with procedure and law, but the reasoning provided is found to be incorrect, the reasoning will be changed or corrected, and the decision will be upheld.” According to this, the consumer court may either approve the decision by altering or correcting it, or, if a retrial is not required, it will issue an approval decision.
Does the Appeal Case Against the Consumer Arbitration Committee Decision Suspend the Enforcement of the Arbitration Committee’s Decision?
After the decision of the Consumer Arbitration Committee regarding the relevant dispute has been notified to the parties, the party in whose favor the decision has been made will be able to take the necessary actions (such as enforcement proceedings) to ensure that the decision is carried out against the opposing party. After the decision of the Consumer Arbitration Committee has been notified to the party adversely affected by the decision, filing an appeal case against the decision at the consumer court does not, as a general rule, automatically suspend the enforcement of the decision. The party seeking to suspend the enforcement of the relevant Consumer Arbitration Committee decision until the court’s final ruling must request a precautionary measure in the petition they submit to the court when initiating the case. Otherwise, the enforcement of the arbitration committee’s decision will not be automatically suspended.
Attorney’s Fee in the Result of an Appeal Against the Consumer Arbitration Committee Decision
In the case of an appeal against the decision of the Consumer Arbitration Committee, if one of the parties is represented by an attorney, the attorney’s fee to be awarded in the decision is regulated under Article 70/4 of the Consumer Protection Law (TKHK). According to this:
“In appeal cases against decisions made by consumer arbitration committees in favor of the consumer, if the decision is canceled, a proportional attorney’s fee will be awarded against the consumer based on the minimum attorney’s fee tariff. (Added sentence: 24/3/2022-7392/14 article.) However, if information or documents that were available but were not submitted to the consumer arbitration committee are later submitted to the consumer court, the court cannot award litigation costs or attorney’s fees against the consumer if the decision is annulled.”
As seen, in the appeal case filed at the consumer court, if a document not submitted to the arbitration committee is presented in court, and if this results in no change to the decision, the court may decide against the consumer, despite the decision being in the consumer’s favor initially. In this case, if the party who was initially in favor is represented by an attorney in the appeal, the court will order the consumer to pay a proportional attorney’s fee. When determining the attorney’s fee, the minimum attorney’s fee tariff will be taken into account.
Statute of Limitations in an Appeal Case Against the Consumer Arbitration Committee Decision
As mentioned earlier, the party wishing to file an appeal against the decision of the Consumer Arbitration Committee must adhere to the time limits. According to Article 70/3 of the Consumer Protection Law (TKHK), the party wishing to file an appeal against the decision of the Consumer Arbitration Committee must apply to the competent consumer court within 15 days starting from the date the decision is notified to them. This 15-day period stipulated in the law is a peremptory time limit, and the judge will consider it ex officio during the trial. Missing the 15-day time limit will result in the decision of the arbitration committee becoming final, and no further appeal will be allowed.
Example Supreme Court Decisions Related to the Appeal Case Against the Consumer Arbitration Committee’s Decision.
Turkish Supreme Court 14th Civil Chamber
Case No: 2014/23288
Decision No: 2014/22727
Date of Decision: 03.07.2014
APPEAL AGAINST THE ARBITRATION COMMITTEE’S DECISION – IF IT IS UNDERSTOOD THAT THE LOAN IS NOT A CONSUMER LOAN, THE CASE SHOULD BE CONSIDERED BY A GENERAL COURT – COURT’S DECISION TO DISMISS THE CASE WITHOUT EXAMINING JURISDICTION AND LEGAL INTEREST ISSUES – DECISION REVERSED.
SUMMARY: The nature of the loan cannot be understood from the loan agreement submitted to the case file. The court should focus on the claimant’s allegation, collect the evidence of the parties regarding the nature of the loan, and if it is understood that the loan is not a consumer loan, the case should be handled by a general court. Jurisdiction is a matter of public order and should be considered ex officio by the court, as well as being raised at any stage of the case. If it is understood that the loan is a consumer loan, considering that the decision is not final for arbitration committees in terms of the amount, and the decision given is of evidentiary nature, the bank will have no legal interest in requesting the annulment of the consumer arbitration committee decision, and therefore the case should be dismissed for lack of legal interest. The court’s decision to dismiss the case without examining the nature of the loan, jurisdiction, and legal interest issues is contrary to procedural and substantive law and requires reversal.
In the petition, the plaintiff’s attorney states that, upon the consumer’s application, the Afyonkarahisar Governorship Provincial Consumer Dispute Arbitration Committee’s decision dated 07.05.2012 and numbered 2012/1107 K. ordered the refund of a total of 577.94 TL, which was charged to the consumer (subscriber) under the headings of loss and theft, distribution, meter reading, and system usage fees on the consumer’s (subscriber’s) invoices. The plaintiff argues that the arbitration committee’s decision is in violation of procedure and law and requests the annulment of the decision.
In the petition, the defendant’s attorney has defended the dismissal of the case.
The court, in its decision to reject the case, was informed by the Chief Public Prosecutor’s Office of the Court of Cassation on 13.11.2013 with letter number 2013/298323, stating that the court had dismissed the case, and despite the defendant being represented by an attorney, no attorney’s fee was awarded in favor of the defendant. Based on this, a request for annulment in the public interest was made. It is understood that, by the decision of our chamber dated 19.03.2014 with case number 2013/20196 and judgment number 2014/4330, it was stated that “since the case was dismissed, an attorney’s fee should have been awarded to the defendant’s attorney according to the current minimum attorney fee tariff,” and the request for annulment in the public interest was accepted based on Article 427/6 of the Civil Procedure Code (HUMK).
Following the annulment, the court again dismissed the case, and the defendant’s attorney, arguing that a fixed attorney fee of 1,500 TL should have been awarded in their favor, requested annulment in the public interest. It is understood that, with the letter from the Chief Public Prosecutor’s Office of the Court of Cassation dated 19.03.2015 with letter number 2015/38228, it was stated that “no re-trial can be conducted following an annulment in the public interest, and a new judgment cannot be made in accordance with the annulment.” Therefore, a new request for annulment in the public interest was made.
In the present case, it is understood that, following the decision of our chamber dated 19.03.2014 with case number 2013/20196 and judgment number 2014/4330, a re-trial was conducted by the court, resulting in a decision to dismiss the case with decision number 2014/382 and judgment number 2014/465 on 16.07.2014.
However, the purpose of the annulment in the public interest is to ensure that decisions which have not passed through the Court of Cassation are reviewed and, if found to be contrary to law, to explicitly announce that the decision is faulty and cannot be applied as stated in the law, thus alerting the courts. It does not change the legal consequences of the judgment and does not produce any result for or against the parties. Since no re-trial can be conducted following an annulment in the public interest and no new judgment can be made in accordance with the annulment, the court’s failure to take this into account when making the written decision is seen as incorrect and warrants annulment.
CONCLUSION: In light of the foregoing, the request of the Chief Public Prosecutor’s Office of the Court of Cassation based on Article 427/6 of the Civil Procedure Code (HUMK) for annulment in the public interest is accepted, and the judgment is annulled without affecting the outcome. A copy of the decision will be sent to the Chief Public Prosecutor’s Office of the Court of Cassation for necessary actions. The decision was made unanimously on 29.03.2016. (Court of Cassation 3rd Civil Chamber, E: 2015/4968, K: 2016/4783)
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