Avrupa Birliği ve Türk Banka Hukuku yönünden fintek

The traditional banking sector and banks have embarked on a blatant restructuring process following the scientific milestones that have been rapidly unfolding and the technological advances that are challenging to follow. Following digitalization and the unlimited access created by emerging technologies, along with other sectors, financial services have become easier to reach for the individuals, resulting in a noticeable increase in consumers' choice of services. With the decline of branch banking and the possibility of receiving banking services anywhere, any time through smart devices, the period of customers going to banks and the banks selecting the customers has been closed, and now banks seem to be knocking on customers' doors. In this period, smallscale enterprises were recognized to take place in the market, alongside banks and corporate financial institutions, and the diversity in the market led to the discovery of new business models, institutions, and practices. The change in the sector is technological and legal as well as ethical and philosophical since it led the practice, customs, and status quo in the financial markets to be questioned entirely. One of the prominent trends which have been causing this change is the concept of financial technology, i.e., FinTech, which is used to express the change in banking. EBA defines FinTech as "technologically enabled financial innovation that could result in new business models, applications, processes or products with an associated material effect on financial markets and institutions and the provision of financial services." According to the European Commission, new technologies are changing the financial sector along with the customers' access to services; enabling FinTech-based solutions to provide services that facilitate access to finance and strengthening financial inclusion for digital citizens. While the development of xxii the technologies used in FinTech is progressing at different speed levels, it is believed that these technologies will fundamentally change the financial sector and some FinTech applications will reach systemic importance over time, although the scope and impact of the development are not yet fully understood. Commission found out that FinTech, which gives customers full control, improves operational efficiency and market competition. In its reports, EBA emphasizes that, although the companies supplying financial services using technology during their services is not new, the FinTech phenomenon takes this process to a new level. In this respect, in the future, FinTech innovations are expected to affect financial services in many different ways. The process of putting technology in the center of banking and finance has led to a new generation of bankers, more dynamic and younger, who specialize in technology and digitalization but do not have much experience in traditional banking and therefore, are different from traditionally trained bankers. U.S. lawyer William Zelermeyer's statement of "new social, economic and political problems are occurring after every scientific turning point" from 1961, can be regarded as a general summary of the change that technology has led to in banking. Although this change after FinTech in financial markets has led to positive developments in terms of mobilizing market competition and preventing monopolization in the market, it has also caused new problems in the field of law, and therefore, new questions need to be answered in parallel with science and technology's effect on the trading life. Since society is not as stable as the rules of law governing it, change must be professed at all points, and positive rules of law must make the necessary effort to keep up with change. However, it would not be too wrong to say that the traditional banking sector, which is regulated today by detailed and strict legislation, as well as the legislators, cannot keep up with this unpredictable change. It is observed that a whole new issue, which brings down and even nullifies the ongoing practices and existing legislation, sits on the agenda of the market, even before the legislators are able to address a specific issue that has been preoccupying the markets. The tricky part is that the specialization required by these new subjects and subjects has not progressed at a pace the experts, who xxiii carry out the work can follow by knowing the static legislation verbatim, can keep up with. The new business models created by FinTech companies also resulted in the creation of a new contract (Service Provider Contract), signed between banks and FinTech companies. A Service Provider Contract is a kind of contract shaped by technological and commercial developments. This new contract type has found its place, in parallel with the 21st Century developments in financial technology. A new infrastructure was needed to supply the enterprise's activities, which lacks banking licenses to enter the market. In parallel with the financial technology trend, after the banking sector was freed from the monopoly of the banks and thus, new, non-bank players started providing banking services in the market. The Service Provider agreement serves the purpose of providing banking and financial services in the market without a license to operate (through established banks). Commercializing bank licenses, which are licenses not protected as an industrial or intellectual right, and therefore cannot be transferred through a license agreement, but has a severe economic value. Although the FinTech current markets have already undergone a fundamental change and the legislators are trying to capture this change within the law, in general, the international practices have not yet gained harmony, due to the fact that technology has been developing much faster than the laws and policies. Although it is known that the FinTech and banking sectors are intertwined, most FinTech activities focus on grey areas that are not actively regulated, due to the fact that the legislation does not prohibit these practices, and also since most of the legislation and form requirements applicable to the bank and financial markets cannot be extended to cover the FinTech sector. The fact that most creative FinTech companies, when they start to operate in the market, use the legal loopholes since FinTechs are not considered to be subject to the supervision of credit institutions. This issue can be reduced to the chicken-egg paradox: did the FinTechs initially emerge because of the unforeseen legal loopholes by legislators, or did FinTech companies, like other existing market players, who do not want to be under the supervision of supervisory bodies, xxiv choose to operate specifically through these areas by creating grey areas in the legislation? Since the European Community and member states have long ago come to the conclusion that the harmonization of technology and law is necessary for the protection of balances, competition and consumers in the market, communitybased and member state legislators have begun to set up working groups for numerous draft framework legislation, that defines and regulates the activity areas of FinTech companies. There is no doubt that EU legislation is of international importance as it is the first supranational framework legislation to regulate FinTech. Because of the limitations of the relevant resources, it is not wrong to say that this legislation should be considered as case law since this legislation and subsequent practices will serve as an example for every subsequent legislative change. Focusing on the local markets, although the Turkish banking sector has long been a leader in the fields of technology and innovation, it does not have the market advantage of the Asian market, which has the opportunity to transport and market digital products to consumers quickly, or the legal protection of the European market, which is regulated by common legislation, and also provides tax and customs privileges to ecosystem players. It can be argued that this is due to the lack of international NGOs and political labor unions based on technology and digitalization, and also to the lack of experimental interest of entrepreneurs due to the economic waves of recent years, and finally, to the limitation of subsidy opportunities for entrepreneurs. For example, when looking at developments in other countries and considering the fact that the first law on the electronic currency in Turkey to come into force in 2013 (approximately thirteen years after the first community-based electronic currency legislation in Europe) can be cited here as an example to the urgency of starting to work on the subject. If FinTech continues to develop at its current pace, it is expected that regulatory and supervisory agencies will change the scope and purpose of their activities, leading to a revision of the risk appetite. FinTech's regulation and automation of legal compliance and reporting processes have led to positive xxv developments in the scope of the audit process improvement, but it has also led to the birth of new potential risks in terms of cybersecurity, data, consumer and investor protection, and market integrity issues. This change in the market changes the dynamics of the sector. As can be seen, the risks that occur within the scope of FinTech applications are developing in parallel with the positive developments. FinTech is radically changing the way financial markets operate globally. These technological, commercial and economic developments, which we have been forced to follow, emphasize the need to update legislation that has no place in practice anymore and signal that new positive regulations are needed to respond to the needs. The task of filling the legal gaps by examining this change is the duty of legislators, regulatory bodies, and the judiciary, as well as the doctrine and practice. This research examines this change in markets and legislation, and the reasons that led to this change, analyses the change in financial markets from both positive and negative aspects and also, aims to collect the effects of FinTech on banking law and the new institutions that FinTech led to, under one roof. The analysis focuses mainly on the Turkish and EU banking and financial technology sector and related legislation, and on the differences between the ecosystems and legal systems mentioned in the research, trying to shed light on the questions that arise in parallel with the change in banking. Another critical topic to be considered regarding this research is the fact that the ideas, as well as the resources used in the research, are continually changing and evolving, as the FinTech sector and regulations that constitute the subject of the research are. It is possible that FinTech policies and law-making processes, which are still ongoing whilst this research is in progress, nullifies the research partially or fully (i.e., lawmakers banning the use of blockchain or requesting a new form of license for FinTech activities). In addition to traditional sources, online developments and online sources have been used, in the hope to eliminate such risks