“SALES LAW” PRINCIPLES:EUROPEAN UNION LAW vs TURKISH LAW

“SALES LAW” PRINCIPLES:

EUROPEAN UNION LAW vs TURKISH LAW

Av. Nihal YURT, Attorney at Law

Some basic questions and answers with framework 'international financial law principles':

1)NATURE AND SCOPE OF FINANCIAL LAW

There is no generally accepted definition of financial law.

Generally, the concept relates to the legal rules relating to finance, finances and financiers – in other words, the rules relating to the process of raising or providing funds or capital or furnishing credit to another person.

Financial law is therefore a broad concept, which may include the legal framework applicable to investors, depositors or lenders, financial intermediaries, borrowers and issuers, financial instruments, transactions and contracts, markets and exchanges, or even public authorities overseeing that process.

Financial law is the branch of law that regulates social relationships arising from the financial activities. Financial law applies only to those financial relationships that are of an organizational nature; those based on contracts are regulated by civil law.

For example, financial law covers questions of the organization of banking and the system of accounts but does not apply to relationships between bank institutions and recipients of credit or between clients settling accounts. Public finance law refers to legislation and regulations relating to the financial activities of government or public sector organizations. Public finance laws govern the funding and administration of specific governmental activities including the sale and purchase of various types of bonds.

2)ROLE OF FINANCIAL LAW

Financial law is important in the creation and development of strong financial markets

Financial markets rely on legal institutions. Law and regulation ensure that financial transactions are carried out within a clear, predictable and enforceable legal framework.

Financial law provides the institutional framework that is necessary for the provision of credit and the operation of financial markets

Financial law critically discusses the basic legal components of the financial system

Financial law examines and discusses the key legal problems that relate to the provision of finance and the ways in which financial institutions address such problems. Financial law is important in the creation and development of strong financial markets

Financial markets rely on legal institutions. Law and regulation ensure that financial transactions are carried out within a clear, predictable and enforceable legal framework.

Financial law provides the institutional framework that is necessary for the provision of credit and the operation of financial markets

Financial law critically discusses the basic legal components of the financial system

Financial law examines and discusses the key legal problems that relate to the provision of finance and the ways in which financial institutions address such problems

3)ROLE AND FUNCTION OF FINANCIAL MARKETS

Role of Financial Markets

· Transfer of resources:- FM facilitates the transfer of resources from one person to

another.

· Productivity usage: - Financial markets allow for the productive use of the funds in financial system thus enhancing the income and gross national production.

· Growth in income:- Financial markets allow lenders earn Interest and Divided on their

surplus investable funds thus contributing to the growth in their income.

Capital formation: -A channel through which savings low to aid capita formation of a

country.

· Price discovery: - FM allow for the determination of the price of the traded financial

assets through the interactions of different set of participants.

Function of Financial Markets:

· Facilitate creation and allocation of credit and liquidity

· Serves as intermediaries

· Assist process of economic growth

· Caters financial needs

4)DIFFERENCE BETWEEN MONEY MARKET AND CAPITAL MARKET

MONEY MARKET

CAPITAL MARKET

It is for period less than a year

Its period exceed s one year

It supplies funds for current Business

operations, working Capital requirements

It finances fixed capital requirement

of Trade and commerce

The instruments used in Money

Market are bills of exchange, like shares,

bonds etc

Treasury Bills

Deals with shares and debentures

Each single Money Market is of Large amount

e.g. TB of 1 lakh

Each single instrument is of a smaller

value e.g., one equity share – Rs 10

Central and commercial banks are

The major players in this market

It include individual and institutional investors

Money Market instruments do not

Have secondary markets

Capital market instruments generally have

secondary market

Transaction happens without broker

Transaction happens only through an broker

Act as a intermediary between depositors and

borrower

Link between investor and

company/entrepreneur

“SALES LAW” PRINCIPLES: EUROPEAN UNION LAW vs TURKISH LAW

The European Union is a transnational structure, which envisages European peoples to combine with each other in economic, political, social and cultural fields, and that European states and citizens come together.

The first step in the formation of the European Union is the Schuman Plan, which was made by the French foreign minister of the time, Robert Schuman, on May 9, 1950, after the Second World War, to create a Europe without war anymore. With the Schuman Plan, the foundations of the EU have been laid.In this sense, with the support of Schuman's European project to live in peace, the process of the European community and the European Union started [1]

One of the primary objectives of the European Union is to ensure the economic development of the member states of the Union and in this context, to ensure the development and growth of member state economies through inter-member trade, and to strengthen the economic cooperation between the member states. In order to achieve these goals, an “Internal Market” was established to ensure the smooth circulation of goods, services and capital within the borders of the European Union. In this context, the European Central Bank was established to provide a “uniform” economy; A single mechanism has been created to set interest rates, maintain price stability within the EU and prevent the European economy from suffering from inflation.Then, with the entry of the euro(€) into the circulation in 1.1.2002, the 'single currency' application started.

The European Union brought together the Maastrict Criteria and Kopenhang Economic Criteria to achieve and maintain these goals, along with these breakthroughs that it made at achieving economic welfare and development goals, and tried to ensure the integration of member states and candidate countries. These criteria are sought for the European Union to achieve its economic goals, and the existence of a functioning market economy requires that the member or candidate country have an economy that can compete with market forces within the EU. In addition, the budget deficit is the criteria for public debt, interest rate and devaluation, and it will keep the EU economy afloat and prevent the risk of monetary union success.

Turkey and the EU relations, still today, is continuing the long process of establishing the European Economic Community in 1958 and then began to apply for Turkey to become a member of the community in 1959In 1963 he made the Ankara Agreement constitutes the foundation of the European Union's relations with Turkey. The aim of the Agreement Article 2 of the Ankara Agreement states: "the rapid development of Turkey's economy and Turkish people considering the need to ensure the enhancement of the level of employment and living conditions, trade and economic relations between the parties to encourage the strengthening continuously and balanced." With this first step taken with the Ankara Agreement, it was envisaged that the free movement of industrial products, agricultural products and persons between the parties and the completion of the Customs Union between 1963-1971. These developments are a result of the community, it was reset some textile products other than oil and applied to all industrial goods imported from Turkey customs duties and quantitative restrictions unilaterally.

October 3, 2005 in Luxembourg conference on Turkey's EU accession process began officially.While 13 chapters were opened for negotiations between 2006 and 2010, only one chapters were opened for negotiation during the period of 2010-2013, since most chapters that were not opened were caught by the political barriers of the member states

Regarding this long-standing process, the High Level Transport Dialogue Meeting was last held on January 15, 2019, followed by the High Level Economic Dialogue Meeting on February 28, 2019. Although negotiations are still continuing legal and economic aspects of Turkey it is to reform in order to ensure compliance with the European Union.

The European Union has established uniform legal rules to realize the 'common market' since its establishment in order to achieve its economic goals and to make European trade effective and strong. In this sense, although the transnational feature of the EU is reflected in Community law, although the Union is not as comprehensive as the legal system of a state, the Union has a unique legal order that in some respects resembles the legal system of a state. The feature of legal compliance for the community is that in any case it concerns both integration and a particular area.[2]In this regard, the rules of law have been regulated independently from the national law of the countries, in order to be applied especially in terms of economy and trade. In Turkish Law, the necessary legal arrangements for harmonization with the EU and compliance with Kopenhang Economic Criteria and Maastrict Criteria have been made since the beginning of the EU accession process.

It developed in parallel with the idea of harmonization of European private law, harmonization of legal rules, harmonization of law in the world and harmonization after the establishment of the European Union; Based on the establishment and functioning of the internal market, it was implemented through regulations, directives and the European Court of Justice. In this context, the subject of "common law" related to "sales law" that will serve the economic union was brought to the agenda.In 2011, a proposal was submitted to the European Parliament and the council to create common sales law principles (CESL) on the grounds of 'sales law', on the grounds that differences in contract law between the Member States prevented traders and consumers who want to cross-border trade in the domestic market.[3]

Barriers to such differences deter traders, especially small and medium-sized enterprises (SMEs) from entering cross-border trade or opening up to the markets of new Member StatesThe need for investors to adapt to different national contract laws that can be applied in cross-border agreements makes cross-border trade more complex and costly than domestic trade for both inter-business and inter-business transactionsIn order to overcome these disadvantages, to develop the European Union economy and trade, and to facilitate trade in investors and consumers, a new regulation in terms of sales law has been brought to the agenda. These differences also have the effect of limiting competition in the domestic market.[4] Missed opportunities for cross-border trade also have a negative impact on European consumers. It provides less cross-border trade, less imports and less competitive power among traders. This can lead to a more limited selection of products at a higher price in the consumer market.One of the main reasons for this situation is that due to the differences in national laws, consumers are generally not sure of their rights in cross-border situations..

This proposal, which was submitted for the purpose of establishing common legal norms, aims to improve the establishment and functioning of the internal market by facilitating the expansion of cross-border trade for businesses and cross-border purchases for consumersThis goal can be achieved by presenting an independent set of contract law rules, including the 'Common European Sales Law' which will be considered a second contract law regime within the national law of each Member State Common law arrangements have been made to regulate the private law relations between the member states of the European Union and the countries outside the union, and the private law arrangements made are aimed at achieving the economic objectives of the union.

'Sales law', one of the branches of law that is the subject of the harmonization of European Union Law, is a branch of law that regulates the relationship between buyer and seller. It is a compilation of rules regarding the formation, performance and violation of the sales contractIt imposes certain tasks on buyers and sellers who fix the violation. When the dispute between the buyer and seller opens a lawsuit in the court of law, the court applies the provisions of the general contract to decide on the sales law and dispute.

At this point, in the European Union Law, leasing contracts, which have an important role in the financial market with diversification of financing methods within the scope of sales law, consumer loans within the framework of the protection of consumers in the liberal economy and capitalist system, e-commerce, which entered our lives with technological developments and the change of trade, and in general terms, tender law and related contractprocedures and similar legal relations were regulated.It was necessary to examine these arrangements in comparison with Turkish Law, which tries to harmonize with the development of commercial and economic life with EU Law.

Major sales relations in EU law; The leasing contract, consumer loans, e-commerce, and tender law, and how this legal relationship is regulated in EU law and Turkish Law, will be examined in general terms:

LEASING CONTRACT

Leasing operation, a lease aimed at achieving investment and financing purposes; We can define the use of machinery and equipment subject to lease as the transfer of the lease payments to the tenant by the owner for a certain period determined by a commercial contract.[5]

Leasing contract is a financial institution specializing in this matter, which requires the separation of the ownership of a good and the right to use it, financing the leased property, for a specified period of time, corresponding to the lessee's property, usually the economic viable life of the property ( lessor) is a contract that he has the right to use in exchange for the rental price he is committed to pay.

In line with the rapidly advancing technology in recent years, investors and operators, who face an increasingly domestic competition, have to constantly improve their investment goods that they use in their activities in order to apply their increasing needs and new technologies to meet themHowever, it is not only domestic competition that investors face, but in the process that started for our economy within the framework of our relations with the European Union, a much stronger external competition forces the investors to use new financing techniques.

In the leasing sector, although the European Union member states are being processed within the framework of their own laws, in other words, in their internal laws, European Union Law has also become an important factor in this field by either direct application or harmonization of the laws of the member states with the European Union Law. This is a clear result of the ongoing structural reform efforts, both for the development of the European Union and for the establishment of a homogeneous structure in industry and especially leasing. The objectives of the European Union, determined by agreements, are based on four fundamental freedoms. These are free movement of labor, free movement of capital, free movement of goods and free movement of services, each of which has a direct impact on the leasing sector. The European Union policy on the banking sector and the free movement of capital is particularly influential on the leasing sector.

The first regulations were made with the First Banking Directive, which came into force in 1977, which determined the minimum capital required for credit institutions, and the Banking Directive, which came into force in 1983, which introduced measures for strengthening the audits of these institutions. Leasing is also among the banking activities. The lease holder who has an operating license in a member state of the European Union, for example in France, can make leasing contracts without the need to obtain permission from another country, for example, the Spanish bank.As a result, leasing companies are subject to the supervision brought by banking directives and are obliged to obtain an operating licence that must be obtained in order to carry out banking activities within the European Union.

With the Regulation issued in 1998, financial and operational leasing transactions have been defined.In accordance with this regulation, financial leasing means that the tenant has the right to use the property for a long period of time, which corresponds to all or a substantial part of the economic life of the property, and where the risks and benefits that can be attributed to the legal owner of the property are completely transferred to the lessee, and at the end of the contract period is a type of leasing that it has. On the other hand, transactional leasing is a type of leasing where the risks and benefits that can be attributed to the legal owner of the property cannot be passed to the lessee and the tenant has the right to use durable property for a short period of time. At the end of the contract period, the goods must be returned to the lessor.

With this decision affecting the European and world economy as well as the leasing sector, with the transition to economic and monetary union, it will be easier to determine the interest rates in leasing contracts within the European Union and foreign exchange risks will be eliminated, thereby increasing international leasing practices within the European Union.Leasing transactions are not regulated in detail in the European Union directives. However, it can be concluded from the definitions in the regulations that both financial and operational leasing types are adopted in European Union law. If we take a look at the regulations that constitute a substantial quality among these:

One of these regulations concerns consumer contracts. With the Maastricht Treaty, some mandatory measures have been introduced to reach a high standard on consumer protection. For this purpose, it was decided to take "special activities" by taking the opinion of the European Parliament and the Economic and Social CommitteeSpecific activities are specific activities that support and supplement the policies pursued by member states pursuant to Article 129 (a) of the Maastricht Treaty to protect consumers' health, safety and economic interests, and to inform consumers. In the sense of the Directive, the consumer is a real person who enters into a contractual relationship for private purposes other than his/her trade, business or profession. In accordance with Article 5 of the Directive, the provisions in consumer contracts should be written in a simple and easily understandable language.

In case of hesitation in the interpretation of the provision, the meaning in favor of the consumer, in other words the consumer, shall be preferred. All these provisions will also apply to leasing contracts where the consumer is located.

With the “Council Directive 25.7.1985 on the Approximation of the Laws, Regulations and Administrative Provisions of Member States on Responsibility for Defective Goods”, which has been put into effect by all member states of the European Union, the principle that the producer will be held responsible for the damage caused by the goods produced by him is broughtIt is also included in the regulation that people who import, sell, or rent goods within the European Union will be considered as producers if they do not report the producer or the person who supplied the goods to them within a reasonable time. If the lessor is also the producer, he will eventually have to accept this responsibility; On the other hand, if the producer and lessor of the goods imported into the European Union are different, the lessor will be held liable as a producer for the Third Party, in other words, by law.

In addition, one of the arrangements made by the Community to achieve environmental protection targets is the “European Community Hazardous Waste Directive”, which obliges manufacturers and people who store hazardous waste to comply with certain conditions.According to the Directive, the person who controls the waste when the incident that causes the damage occurs or environmental damage occurs, if the producer of the goods cannot be determined within a suitable period of time.If the producer is determined, it is held responsible for the damages caused by the waste in accordance with the provisions of private law, regardless of its defect.

In Turkish law, it was first recognized in our country in the 1970s; On 10.06.1985, the Financial Leasing Law numbered 3226 and many regulations, communiqués and decisions were issued in order to indicate the applications of this law and the legal framework of the transaction was drawn.Transaction leasing operations are not included in the law, since the purpose of the law is regulated as leasing for financing in Article 1 of the FKK, and the period when article 7 and four years of termination is not possible.

However, in Turkish law, the Banking Law No. 5411 dated 19.10.2005 has been complied with the banking regulations of the European Union.

In the 4th article of the Law, it performs the financial leasing transactions that are considered among the banking activities, and lends the money they collected as financial loans by leasing. As a result, since financial leasing companies are considered as “banks” under the Banking Law, it is imperative that financial leasing transactions are also audited by the Banking Regulation and Supervision Agency (BRSA). In accordance with article 93 of the Banking Law, BRSA, leasing, factoring and financing companies; It has been charged with organizing, implementing, ensuring implementation, monitoring and controlling the establishment and activities, management and organizational structure, mergers, divisions, share exchanges and liquidations.

According to the “Regulation on Responsibility for Damages Caused by Defective Goods” 85, which is regulated in parallel with the manufacturer's Responsibility Directive, in Turkish Law, only the persons who have the title of “consumer”, since it is considered to be “damaged” and can benefit from the manufacturer's responsibility provisions, it does not seem possible to subject leasing companies to the responsibility of the manufacturer.

The responsibility of the lessor arising from the European Union Hazardous Waste Directive was conveyed to the Turkish law with the “Regulation on Control of Hazardous Waste”, which was issued to comply with this directive. According to the regulation, waste producers and their carriers are responsible for the damages arising from environmental pollution and degradation caused by the wastes, without any condition of defect.

In the European Union legislation, there are no restrictions on leasing types, there are regulations regarding both financial and transactional leasing types. In Turkish Law, many types of leasing, such as operational leasing and direct leasing, are not covered by the Financial Leasing Law. Due to this limitation imposed by law, transactional leasing, which is a method that is used for the financing of the goods, which technology is rapidly changing or that is needed for a temporary period, has been abandoned and the provisions protecting the consumer (the tenant in the leasing contract) cannot find application area.

Again, according to the “Regulation on Responsibility for Damages Caused by Defective Goods” in line with the Regulation on Responsibility of the Producer in the European Union, leasing companies are subject to the responsibility of the manufacturer as a result of the evaluation of the persons who bear the title of “consumer” within the concept of “damaged”. it does not seem possible.In contrast, in European Union law, the Hazardous Waste Directive is ensured to be held responsible for hazardous wastes, since compliance with Turkish law is ensured by the “Regulation on Control of Hazardous Wastes”.

In addition, in the European Union legislation, financialleasing activities are considered within the scope of banking transactions and leasing companies are subject to the supervision of banks. In our country, compliance with European Union banking regulations was ensured with the Banking Law No. 5411 dated 19.10.2005.Accordingly, financial leasing companies are covered by the Banking Law as a “bank” and there is an obligation to supervise financial leasing transactions by the Banking Regulation and Supervision Agency (BRSA)

In the final analysis, an increasingly domestic competition in parallel with the rapidly advancing technology; In the framework of our developing relations with the world and the European Union, especially with the Customs Union, the foreign competition environment that we will encounter in the process that started for our economy forces investors to use new financing techniques.

One of these techniques, leasing, adapted to our law with the Financial Leasing Law, is of great importance in terms of increasing investments in our developing country and introducing new technologies to our country.

CONSUMER LOANS

Consumer law, 19th century Since the civil and debt laws were insufficient in protecting the consumer, they emerged as a special legislation in the 20th century besides these laws. The lack of a global approach to consumer issues in European Union law has made it difficult to determine common principles in the legal order of the member states21st century The challenge for the legislator is to determine the relationship between classical debt law and consumer law, and to make a choice whether to continue this duality or not. Consumer law in the European Union is the driving force of the idea of drafting a common obligations law to all member states.The only market of the European Union is the common market of the 27 member countries where citizens of the member countries are considered consumers and the goods are freely traded. By removing the boundaries aimed in this market, it is aimed to provide the industry and service sector with better growth opportunities and to provide consumers with wider products at lower prices.[6]

In the European Union Consumer Loan Directive, consumer credit is not defined.But it defines; “Loan agreement” is “a contract that envisages or is a commitment of the lender to postpone or lend the payment to the consumer or to provide other financial aid”.[7] In short, the consumer loan contract is a contract that requires the consumer lender to transfer the ownership of the loan to the consumer. Credit

is any kind of ease of payment provided to the consumer. This includes direct credit to the consumer, as well as other payment facilities within the leasing methods.

In EU law, it is aimed to protect “a high level of consumer security and economic interests” in the article of the Treaty of EU.Different EU law rules regarding consumer loans may distort competition among consumer lenders in the common market.Different legal arrangements can eliminate the opportunity for consumers to obtain consumer loans from another member state.[8] In addition, differences in legal rules may have negative effects on the volume and quality of consumer loans, and may adversely affect the free movement of credit-related goods and services. Creating a common consumer market would be equally beneficial for consumers, lenders, manufacturers / manufacturers, wholesale or retail businesses, and service providers, as the consumer credit volume within the EU is increasing.In the field of consumer credit, different rules and practices in the member states prevent the consumer from enjoying the same protection. The consumer should be informed about the loan terms, the cost and obligations of the loan. It is possible to achieve better protection of consumers by setting certain rules that apply to all forms of credit. Member states may exclude loans granted under certain non-commercial special conditions, outside the scope of this Directive, in consultation with the EU Commission. Subjecting the loan contracts for very small amounts to the provisions of this Directive can lead to unnecessary administrative costs for both the consumer and the lender.For this reason, this Directive does not apply to contracts made above or below a certain amount.The consumer will be further protected by writing loan contracts and by providing specific minimum information on contract terms.

If the consumer purchases goods and services under a loan agreement, the consumer may also claim his rights arising from the contract against those who offer the goods or services against the lenders.

This is the case where the loan is given by the lender in order to purchase goods or provide services based on a prior agreement.Member states should take measures to permit and supervise lenders or intermediaries, and to enable consumers to file cases against credit contracts and terms.Credit agreements should not eliminate the implementation and provisions of this Directive against consumers.This Directive will harmonize the legal and administrative regulations of member states on consumer loans, but there is no obstacle for member states to take more stringent measures to protect consumers.

In Turkish Law, in the TKHK(law on consumer protection) numbered 4077 dated 23.02.1995 12, in the Law No. 4822 of 06.03.2003 on the Protection of the Consumer, in order to protect the consumer more effectively against the developments in social and economic life and to be more compatible with the European Union's consumer-related legislation. Significant amendments were made with the “Law on Amendment” 13. TKHK m. “Consumer Loan” with 10 provision is issued.[9] According to this provision, “Consumer credit is the credit consumers receive in cash from the lender in order to obtain a good or service. It is obligatory to make the consumer loan contract in writing and give a copy of this contract to the consumer. The loan conditions stipulated in the contract concluded between the parties cannot be changed against the consumer within the contract period.

Consumer loan contract, Regulation on Consumer Credit m. According to 4a, it refers to the "contract regarding the loan received from the lender in cash in order to obtain a good or service between the creditor and the consumer". From these two definitions, it is understood that the parties to the consumer loan contract are the consumer and the creditor, the subject of the consumer loan is the cash loan, and the purpose of the consumer is to obtain a good or service.

E-COMMERCE

Trading using electronic tools is called electronic commerce. E-commerce is the process of getting products or services for money by using certain technological systems in the internet environment.[10]

The European Commission also made a definition in 1997 as an operation of electronic activities related to electronic commerce. The mentioned business activities are based on digital editing and transfer of sound, text and photographic records. When we evaluate electronic commerce from this aspect, it is the data execution of product or service purchases and payments. These activities include both the products obtained (consumer goods, special equipment) and services (information services, financial and legal services) and spiritual activities (education, health and care).[11]

Traditional trade and electronic commerce are largely similar. For this reason, besides ordering goods and services, electronic commerce also includes delivery and performance of these.

One of the organizations that work most effectively on legal regulations regarding the social aspects of electronic commerce and the internet is the European Union. The European Union Many commission circulars have been published in Europe, which have a direct impact on the development of electronic commerce and the technology of information.

The European Union commission has made efforts to establish policies aiming to develop the product with all kinds of encryption technology in electronic commerce and to guarantee their free movement within the union, and to maintain e-commerce activities in an environment that will also provide for public order and necessity.

There are 2 main Directives related to electronic commerce and electronic signature in the EU;

a) The Electronic Commerce Directive 2000/31, dated June 8, 2000, prepared to ensure the free movement of information society services among member countries, includes important issues regarding electronic contracts and their legal consequences.

b) Electronic Signature Directive 1999/93, EU, dated 13 December 1999. EU member states are required to enact the necessary laws, regulations and administrative provisions to comply with this Directive by 19 July 2001. The purpose of the Directive is determined to facilitate the use of electronic signature and to contribute to their legal recognition. Electronic signature certificates, certificate service providers and the principles regarding their surveillance are included in this Directive.

With the advancement of technology, states around the world have brought a number of legal regulations to the transactions carried out by electronic means. The European Union Commission also published the “Electronic Commerce Directive” in 2000. This directive obliges the member states to make some regulations in their own domestic legal systems. Although many member states make regulations on this issue in their own domestic legal systems, only a few countries have electronic laws specific to electronic commerce.

Many studies carried out by the European Union make the member states responsible for the first degree and make it obligatory to implement in their own domestic legal systems. This directive brings many regulations and responsibilities to all businesses that want to trade using electronic tools.

In line with the regulations in TurkishLaw, new regulations were needed in this field since innovations in the IT and internet sector also affected commercial life. For this purpose, the Electronic Commerce Directive has been prepared and a legal regulation has been made in accordance with this, and the Law on the Regulation of Electronic Commerce (“E-Commerce Law”) came into force in 2014 in order to comply with the EU Electronic Commerce Directive. It is understood that the Electronic Commerce Directive and the Electronic Commerce Law are parallel regulations. It is seen that the Electronic Commerce Law is regulated as a general translation of the Directive and includes similar provisions.

With the regulations introduced by the European Union Directive 2000/31 of the European Union, a legal guarantee has been provided for commercial life and consumers. Within this framework, rules have been introduced on issues such as transparency, internet service providers, commercial communication, electronic contracts and limited liability of intermediary service provider.

In the European Union E-Commerce Directive, my obligation to provide information; Article 5 of the Directive states that the member states will ensure that the service provider provides the information directly to the service recipients and competent authorities, directly and continuously. This information; The name of the service provider, the geographical address where the service provider is located, details of the service provider, the contact information that will enable it to be accessed quickly, if the service provider is registered in a trade or similar public registry, the commercial registry and registry registration number or identification thereof co-efficient means, where the activity is dependent on a permit system, the professional body in which the service provider is registered, the professional title and member state, the professional rules applied in the resident member state, and how they can be achieved, in relation to the relevant supervisory authority, the regulated professions. is knowledge. It is seen that the law is prepared based on the information specified in the Directive and it covers parallel regulations with the law.[12] In the E-Commerce Law, this situation is regulated as the “Obligation to Provide Information” within the harmonization process as described above..[13]

The steps required for the establishment of electronic contracts are specified in the article 3 of the E-Commerce Law. The obligation to provide information is an obligation imposed on the service provider. It is stated in Article 2 of the Law that the service provider refers to natural or legal persons engaged in electronic commerce activities. Therefore, everyone who is engaged in electronic commerce, in short, is obliged to provide the information specified in the provision, prior to the establishment of a contract, which must be established by means of electronic communication, in accordance with the provision.

In line with the directive, there is essentially no difference between the contracts concluded with classical methods in terms of the rights and obligations of the parties or legal nature. The difference here is in terms of the method of establishment of the contract. According to the law, electronic contract will be established online, in other words online.

In addition, Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce art. In 5, the elements covered by the service provider's obligation to provide information are arranged in detail. According to this; The service provider shall keep the specified information in his own electronic commerce environment before starting the electronic commerce activity.

Another common arrangement is seen at the 'order' point. Article 11 of the EU E-Commerce directive carries the title of “Ordering” and regulates the order. The article also states that if the parties are not consumers, they can decide otherwise. In this context, according to the relevant provision, the service provider will notify the electronic means without delay that the buyer received the order, this notification and receiving the order is deemed to have been made as soon as the parties have access. In the second paragraph of the article, it is stipulated that the member states will ensure that the service provider is able to provide appropriate, effective and accessible technical tools to enable detection and correction of input errors before ordering.

It is possible to define the order as the will statement made for the establishment of the electronic contract. In the fourth article of the E-Commerce Law, the principles regarding the orders placed by electronic communication tools are regulated. It is understood that the principles that should be found at the time of ordering from the first paragraph of the provision are regulated..[14]This provision is also stated in the EU E-Commerce Directive in this way. As it is seen, Art. The provision of 4 is regulated in the same manner as in Article 11 of the directive and there is no difference.

The issue of "Protection of Personal Data" is regulated in article 10 of the E-commerce law. In the article, the protection of personal data is specified as the responsibility of the service provider and intermediary service providers. It is stipulated that service providers and intermediary service providers are responsible for the security and storage of personal data they obtain under the law. In addition, they will not be able to transmit the personal data they have obtained pursuant to Bent II to third parties without the consent of the person concerned and use them for other purposes.Considering the reasoning of the provision, it was stated with 21 provisions that the establishment of trust in electronic commerce was intended and the provision was regulated as a liability provision. The provision aims to harmonize Turkish Law legislation with the Directive 2002/58 / EC.

“Commercial communication principles” are regulated in the fifth article of the law and the article is taken from the 2nd part of the EU E-Commerce Directive, the 6th article. According to the Directive, Member States have stated that they will ensure that the commercial communication that forms part of an information society service or that it constitutes at least certain conditions.These conditions must be clearly identifiable as the real or legal person on behalf of commercial communication and commercial communication, promotions such as discounts, premiums and gifts, promotional contests and games, if allowed in the member state where the service provider is located, to be clearly determinable, to win these promotions. The conditions that must be fulfilled must be easily accessible and presented clearly and without any ambiguity.As it is seen, this article does not contain a different subject from the directive, as the other provisions have been prepared in the same way as the Law Directive.

EUROPEAN UNION FOREIGN AID CONTRACT PROCEDURES IMPLEMENTATION GUIDE (PRAG) VS PUBLIC PROCUREMENT LAW (KIK)

The European Union consists of countries that share common values in human rights and market economy. It spends considerable resources in the form of various financial instruments in the form of grants or loans, both in order to support the internal economic and social development of these countries and to balance the level of international development. The EU also provides financial assistance to third countries where it deems necessary. Turkey has been receiving pre-accession assistance from the EU since 2001 under the Turkish Financial Instrument. Funds are programmed annually on an annual basis under national programs.[15]

The Tender and Direct Grant Application Guide for European Union External Activities (PRAG) describes the contractual procedures applied to all EU external activities financed by the EU general budget and the European Development Fund (European Development Fund, EDF). The Implementation Guide (PRAG) contains comprehensive information, including the process from tender or grant procedures to the decision of the tender, to the signing and implementation of the contract..[16]

The Tender and Direct Grant Application Guide for European Union External Activities (PRAG) describes the contractual procedures applied to all EU external activities financed by the EU general budget and the European Development Fund (European Development Fund, EDF). It was first published in 1996 and has been changed and updated at various times. It took its current form with the tenth changes in 2014.

Contracts are signed with successful applicants / bidders within the scope of the activities they undertake for the implementation of the projects. Contracts can be of five types; service, purchase of goods, works, grants, twinning.

The Implementation Guide (PRAG) contains comprehensive information, including the process from tender or grant procedures to the decision of the tender, to the signing and implementation of the contract. All bidding process in the European Union Delegation to Turkey to allow the monitoring of EU procedure, each project gives prior approval of tender and contract stages. Turkey, on the application of EU funds, because it has a solid experience in financial management in accordance with EU rules and procedures "prior approval" mechanism "later checked" will vary with the mechanism.

Tender or grant procedures for projects financed under EU external aid programs have been introduced in terms of project management.The forms of management differ according to the representation of the budget tasks (concluding contracts, their financial and financial management, audit, evaluation, etc.) by different procedures, depending on whether the European Commission is involved or not.

In Turkish legislation, arrangements have been made within the framework of “the Public Procurement Law”(KIK), and the Public Procurement Authority, which has a public legal personality and has administrative and financial autonomy, has been established with its article 53.

In this context, basic rules related to the tender can be determined with similar regulations in PRAG and KIK: fair and transparency competition and ethical provisions. In addition, there are similar regulations in terms of eligibility criteria, administrative and financial penalties, financial-economic criteria and the tender procedure.

According to PRAG, it regulated the need to establish that European Union funds are available before any procedure can be initiated. In exceptional cases, calls can be made without pre-approval, by adding a suspension phrase.The call is made after the suspension, before the financing decision or before signing the financing agreement between the European Commission and the beneficiary country. In case the commission decision is not taken or the financing agreement is not signed, the call is canceled. It is not possible to sign the contract until the funds are available.

Service, supply and works contracts are stipulated in PRAG and Turkish Law. However, while defining the service, the JCC also put the consultancy service into the “service” category and defined the consultancy service separately. In addition to the Service Procurement Tenders Implementing Regulation, which was issued on the basis of the JCC, the Consultancy Service Procurement Tenders Application Regulation was also issued. Even the 5th Section of the JCC includes “Special Provisions on Consultancy Service Tenders”: Service contracts, supply contracts, works contracts.

Consequently, when the Contract Procedures for European Union External Activities and the Public Procurement Legislation are examined, it is seen that both regulations are similar in the Public Procurement Legislation as a result of the changes in the implementation of the Public Procurement Legislation due to the wider application area of the Public Procurement Legislation. It is understood that it was caused by the regulation for other subjects besides similar subjects. This situation is also seen in the determination of the tender procedures to be used according to the approximate costs. These limit values are lower in amount compared to PRAG in Turkish Legislation.

Despite the differences, considering the changes made so far in the harmonization process with the EU acquis, both regulations were similar in basic issues. It is understood that the vast majority of differences are due to the different areas of application of the two regulations, while some are due to the adoption of different perspectives. It is thought that the EU perspective will be adopted in the continuation of the harmonization process.

CONCLUSION

Regarding the Sale Law, when we evaluate the examples given above, it is clearly seen that there is an effort to harmonize between European Union regulations and Turkish Law regulations in terms of Turkish law.The European Union's economy and the welfare arrangements made for commercial purposes to keep focused on the goal, legislative arrangements have been made in Turkey. Turkey's part, goals in making this legislation also become a member of the European Union, and in particular to develop his trade with Europe, to ensure together the legal and economic union by applying similar rules of law and as a natural result of this is to provide investors and consumers trade and economic convenience. All these goals are the breakthroughs made by the law states to develop and protect the economy and trade.

On the other hand, Covid-19's impact on the world affects the 'single market' of the EU: As social spending increases within the framework of the importance of countries, the European economy has been deeply affected by the cessation of production and the tendency of countries to protect their economies leaves the concept of 'unity'. Especially since the economies of the countries that joined the European Union afterwards are already more fragile, because the Union cannot provide funds to these countries, both their economies and the union economy are negatively affected.In addition, the great increase in the cost of health services and the cessation of production has affected trade life, shopping, and the implementation of the law of sale is also interrupted.

As such, it is an undeniable fact that the Corona Virus, which has spread worldwide by 2020, negatively affects the world economy and trade.As a matter of fact, the fact that the countries close their borders and sacrifice international trade to protect international health will lead to shrinking not only weak economies but also globally strong economies.In this context, the negative effects of COVID-19, also affected to the European Union, where political separations began with the Brexit process.As a result of all these negativities, it can be seen that trade and economy can be protected by making changes in both the EU law and Turkish law, the rules of 'sales law'.

REFERENCES

Bilici Nurettin, Avrupa Birliği ve Türkiye, Ankara:Seçkin Yayınları, 2013.

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a Common European Sales Law, Brussels, 11.10.2011 COM(2011).https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52011PC0635&from=EN(last visited may 21,2020)

Dannemann Gerhard and Vogenauer Stefan, The Common European Sales Law in Context Interactions with English and German Law, Oxford: OUP Oxford, 2013.

Özkan Zehra, Avrupa Özel Hukukunun Uyumlaştırılması, Ankara Üni. Hukuk Fak. Dergisi, 66 (1) 2017: 157-199.

Atamer, Yeşim&M.(Tekinalp/Tekinalp), Avrupa Birliği Hukuku, 2. Baskı, İstanbul 2000, s. 658.

Apaydın Eylem, The Chronicles of Unifaction of International Contract Law, Particularly Sales Law, Journal of Yaşar University, 2013:201-250.

Düzel Osman, Türkiye’nin Avrupa Birliği Üyeliği Ve Türk Hukuk Sistemi, Uzmanlık Tezi, Avrupa Birliği Genel Sekreterliği ULusal Program Dairesi, Mayıs 2004.

Erdem Ercüment, Viyana Satım Antlaşması’na Genel Bakış ve Maddi Uygulama Alanı, Galatasaray Üniversitesi Hukuk Fakültesi Dergisi, Milletlerarası Mal Satımına İlişkin Birleşmiş Milletler Anlaşması’nın (CISG) Türk Borçlar Kanunu Çerçevesinde Değerlendirilmesi Sempozyumu Özel Sayısı, 2013/1:117-156.

Tiryaki Betül, Leasing İşlemleri İle İlgili Avrupa Birliği Mevzuatının Türk Hukuku Bakımından Değerlendirilmesi, Gazi Üniversitesi Hukuk Fakültesi Dergisi C. X, S.1,2 Y.2006, s.207-251.

Bucaklı Ali Tamer, Kadir Has Üniversitesi Sosyal Bilimler Enstitüsü İşletme Bölümü Elektronik Ticaret, Yüksek Lisans Tezi, İstanbul, 2007.

Ceylan, Ebru, Avrupa Birliği Hukukunda Ve Türk Hukukunda Tüketici Kredileri, Tbb Dergisi, Sayı 79, 2008, s.35-60.

Pençe, Mehmet Seyfeddin, Türkiye – Avrupa Birliği Dış İlişkileri Açısından Elektronik Ticaret, Yüksek Lisans Tezi, İstanbul Ticaret Üniversitesi Sosyal Bilimler Enstitüsü, 2014.

Canpolat, Önder, E-Ticaret Ve Türkiye’deki Gelişmeler, Ankara: Sanayi Ve Ticaret Bakanlığı, 2001.

Bahçeci, İlkem, Avrupa Birliği Dış Faaliyetleri İçin Hazırlanmış Sözleşme Prosedürlerinin Yerel Mevzuatla Karşılaştırılması, Uzmanlık Tezi, 2014.

Dünyada E-Ticaret Mevzuatı Çalışmaları ve Uygulamalar, (last visited may,23 2020)

https://ticaret.gov.tr/hizmet-ticareti/elektronik-ticaret/mevzuat/dunyada-e-ticaret-mevzuati-calismalari-ve-uygulamalar

Üzeler, Rabia Sanem, TÜKETİCİ HUKUKUNDA BAĞLI KREDİ SÖZLEŞMESİ, Yüksek Lisans Tezi, ANKARA ÜNİVERSİTESİ SOSYAL BİLİMLER ENSTİTÜSÜ ÖZEL HUKUK (MEDENİ HUKUK) ANABİLİM DALI,2011.

Bulut Beste, E-Ticaret Kanun AB E-Ticaret Yönergesi, İstanbul,2016http://www.buluthukukburosu

.com.tr/wp-content/uploads/2018/01/E-Ticaret-Kanunu-AB-E-Ticaret-Y%C3%B6nergesi.pdf.(last visited may 21, 2020).

DOKUR, Şükrü, ve ERBAŞLAR, Gazanfer, Elektronik Ticaret, Ankara, 2012.

ÇAKIRER, Mehmet Akif, Elektronik Ticaret, Bolvadin, 2013.

[1] Prof.Dr.Nurettin Bilici, Avrupa Birliği ve Türkiye, Ankara:Seçkin Yayınları, 2013, s.27-35. [2] Osman Düzel, Türkiye’nin Avrupa Birliği Üyeliği Ve Türk Hukuk Sistemi, Uzmanlık Tezi, Avrupa Birliği Genel Sekreterliği Ulusal Program Dairesi, Mayıs 2004, Ankara p.8. [3] Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a Common European Sales Law, Brussels, 11.10.2011 COM(2011). [4] Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a Common European Sales Law, Brussels, 11.10.2011 COM(2011). [5] BetülTiryaki, Leasing İşlemleri İle İlgili Avrupa Birliği Mevzuatının Türk Hukuku Bakımından Değerlendirilmesi, Gazi Üniversitesi Hukuk Fakültesi Dergisi C. X, S.1,2 Y.2006, s.207-251. [6] Mehmet Seyfeddin Pençe, Türkiye – Avrupa Birliği Dış İlişkileri Açısından Elektronik Ticaret, Yüksek Lisans Tezi, İstanbul Ticaret Üniversitesi Sosyal Bilimler Enstitüsü, 2014. [7] Ebru Ceylan, Avrupa Birliği Hukukunda Ve Türk Hukukunda Tüketici Kredileri, Tbb Dergisi, Sayı 79, 2008, s [8] Yeşim Atamer, M.(Tekinalp/Tekinalp), Avrupa Birliği Hukuku, 2. Baskı, İstanbul 2000, s. 658. [9] İsmailKAYAR, Tükwtici Kredilerinde Tüketicinin Korunması, E. Ü, iktisadi ve idai Bilimler Faküttesi Dergisi Sayı : 16 Yıl : 2000 (75-98 s.). [10] Ali Tamer BUCAKLI, KADİR HAS ÜNİVERSİTESİ SOSYAL BİLİMLER ENSTİTÜSÜ İŞLETME BÖLÜMÜ ELEKTRONİK TİCARET, Yüksek Lisans Tezi, İSTANBUL, 2007. [11] Önder Canpolat,E-ticaret ve Türkiye’deki gelişmeler, Ankara: Sanayi ve Ticaret Bakanlığı, 2001, s.13. [12] Beste Bulut, E-Ticaret Kanunu - AB E-Ticaret Yönergesi, İstanbul, 2016. [13] Şükrü DOKUR ve Gazanfer ERBAŞLAR, Elektronik Ticaret, Ankara, 2012. [14] Beste Bulut, E-Ticaret Kanunu - AB E-Ticaret Yönergesi, İstanbul, 2016. [15] İlkem Bahçeci, Avrupa Birliği Dış Faaliyetleri İçin Hazırlanmış Sözleşme Prosedürlerinin Yerel Mevzuatla Karşılaştırılması, Uzmanlık Tezi, 2014. [16] İlkem Bahçeci, Avrupa Birliği Dış Faaliyetleri İçin Hazırlanmış Sözleşme Prosedürlerinin Yerel Mevzuatla Karşılaştırılması, Uzmanlık Tezi, 2014.