Newsletter-21

53 COMMERCIAL LAW was violated by the storekeeping activities of S., in Antalya, right after the conclusion of the contract, and the judge disagrees with the deci- sion of the majority. Our Opinion The 11th Civil Chamber of the Court of Cassation, in its two decisions dated 2011 and 2012 2 , ruled that non-compete obliga- tion after the termination of the agreement is null and void, as it is a form of tying, and violates the freedom of labor, and restricts the economic freedom of the other party. In the abovementioned decision, the 11th Civil Chamber maintained its position, and confirmed that the non-compete clause restricts economic freedom, and is contrary to the principle of good faith and ethics; therefore, the non-compete clause and the relevant penalty clause are deemed void. Under Turk- ish law, the non-compete obligation after termination of the contract is provided for under Articles 444 and 445 of TCO in relation to the employment contract, and by Article 123 of the TCC in relation to the agency contract. In our opinion, these provisions are not directly, nor by analogy, applicable to the non-compete clauses provided in share transfer agreements, as they are substantially different in nature. The purpose of these provisions is to protect the inferior party (which is the employee in the employment contract and the commercial agent in the agency contracts). On the other hand, Law No. 4045 on the Protection of Competition and the relevant communiqués set forth certain provisions on non-compete obligations 3 . Such agreements are referred to as ancillary non-compete agreements under Turkish law, and the validity of these agreements are subject to certain conditions 4 . 2 Yargıtay 11. H.D. E. 2011/13747, K. 2012/356, T. 19.01.2012; Yargıtay 11. H.D. E. 2012/17736, K. 2013/9814, T. 13.05.2013 (www.kazanci.com) . 3 The Law No. 4054 on the Protection of the Competition, Official Gazette dated 13.12.1994 and numbered 22140; the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (Communi- qué No: 2010/4), Official Gazette dated 07.10.2010 and numbered 27722; Block Exemption Communiqué on Vertical Agreements Amended with the Communi- qué No. 2003/3 and 2007/2 (Communiqué No: 2002/2); Official Gazette dated 14.07.2002 and numbered 24815. 4 Ercument Erdem , Rekabet Hukuku Açısından Birleşme ve Devralmalarda (Yoğunlaşmalarda) Yan Sınırlamalar, Rekabet Kurumu Perşembe Konferansları,