Provision Is Invalid If The Prohibition Of Competition Does Not Contain Equitable Restrictions In A Way That Endangers The Economic Future Of The Employee
11th Civil Chamber of the Court of Cassation
Principal Number: 2017/3251
Decision Number: 2019/805
“Case Law Text”
COURT : … DISTRICT COURT OF JUSTICE …. LAW CIRCUIT
ON BEHALF OF THE TURKISH NATION
In the case between the parties, upon the appeal of the decision dated 28/11/2016 and numbered 2015/320 E. – 2016/777 K. given by the … 7th Commercial Court of First Instance dated 28/11/2016 by the defendant’s attorney, upon the acceptance of the appeal request … Regional Court of Appeals …. The Supreme Court review of the decision dated 20/04/2017 and numbered 2017/143-2017/175 given by the Civil Chamber was requested by the plaintiff’s attorney and it was understood that the petition for appeal was submitted within the time limit, and after the report prepared by the Examining Judge … for the case file was listened to and again after the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the necessity of the matter was discussed and considered:
The plaintiff’s attorney; According to Article 5 of the service contract between his client and the defendant, it is regulated that the defendant cannot transfer the defendant’s workplace secrets and customer circle to third parties during the working period, cannot engage in another business on the same subject (faxserver) within 6 months after the termination of the employment contract, and cannot directly or indirectly be in this position and contact with the client’s customer circle, and in case of violation of this article, the defendant will pay a penalty of 50. 000 USD penal clause, the defendant terminated the service contract on 20.06.2002, and based on the complaint filed against the persons including the defendant, the defendant was dismissed from the workplace of 7 Gen Bilgi ve İletişim Hizm. Ltd. Şti., the defendant’s computers were found to contain correspondence with his client’s customers in the virtual environment for establishing commercial connections within a period of 6 months from the termination of the employment contract, claiming that this situation is contrary to the prohibition of competition, and demanded and sued for the collection of the penal clause of 50.000 USD with interest at the CBRT effective sales rate on the day of actual payment.
The defendant’s attorney objected to jurisdiction and pendency, arguing that his client terminated the employment contract due to non-payment of his rights, that the penal clause was invalid only because it was written against the employee, that the penal clause became null and void upon the termination of the contract, that his client did not have any activity that would require the penal clause, that the plaintiff did not work in another job related to the subject of activity, that the penal clause was exorbitant and that it should be compensated, and requested the dismissal of the lawsuit.
The court of first instance, according to the claim, defense, expert report and the entire file scope; a service contract dated 05…..2000 was arranged between the parties, in Article 5 of the service contract, it was agreed that there was a prohibition of competition for 6 months after the termination of the contract and in case of contrary behavior, it was agreed to pay a penal clause of 50.000,00 USD, … The defendant and the non-suit …. were convicted in the case numbered 2008/316 of the 7th High Criminal Court for uploading the database of the plaintiff’s computer to their own computers
… It was decided to accept the lawsuit on the grounds that it was accepted that the service contract was unfairly terminated by the plaintiff from the file numbered 2002/1603 of the 7th Labor Court and it was decided to collect the defendant’s employee receivables, that even if the contract was unfairly terminated, this situation did not eliminate the employee’s obligation to keep secrets, that the prohibition of competition, which is accepted to be applied for 6 months after the termination of the contract in Article 5/d of the contract, also includes the obligation to keep secrets, and that the defendant violated the obligation to keep secrets. 000 USD with interest to be accrued as of the date of the lawsuit in accordance with Article 4/a of Law No. 3095.
The defendant’s counsel appealed against the decision.
… The … Regional Court of Appeals, according to the entire file scope; the appeal application of the defendant’s attorney was rejected by the … 7th Labor Court … /11/2009 dated 2007/20 Main – 2009/821 Decision No. In the case regarding the labor receivables filed by the defendant of our file in the file dated 11/2009 and numbered 2007/20 Main – 2009/821 Decision, it was accepted that the employment contract was terminated in such a way that the employee could not be entitled to severance and notice compensation, and the severance and notice compensation was rejected, and the decision was finalized by the Supreme Court of Appeals, the fact that there is no geographical area limitation in the article regarding the prohibition of competition in the service contract signed by the defendant is of a nature that will cause the economic ruin of the employee, this situation is contrary to the legal regulations regarding freedom of work and freedom of contract, it is not enough just to have a customer list on the defendant’s computer, it cannot be proved that the defendant has caused damage to the plaintiff by using this list to benefit himself or a third party, the plaintiff has also left the lawsuit filed against the third party outside the lawsuit for the same legal reason unpursued, for these reasons, the contract provision regarding unfair competition is null and void, and the penalty clause cannot be requested based on the invalid contract, the decision of the court of first instance is accepted on the grounds that 353/1-b- of the CCP No. 6100 … article and decided to dismiss the lawsuit.
The decision of the Regional Court of Appeal was appealed by the plaintiff’s attorney.
1- Provisional Article …. …. of the Law No. 6100 reads as follows: “The provisions of Articles 427 to 454 of the Law No. 1086, prior to the amendment made by the Law dated …/09/2004 and numbered 5236, shall continue to be applied to the decisions rendered before the commencement date of the regional courts of justice until they are finalized. The files related to these decisions cannot be sent to the regional courts of justice.” Although the decision dated 28.11.2016, which was given by the court of first instance to accept the case with the justification summarized above, was given after the date when the regional courts of appeal became operational, the decision dated ….07.2014 given by the court of first instance in the case file was previously reviewed by the decision of the 9th Civil Chamber of the Court of Cassation dated 20.11.2014 with the decision numbered 2014/30815 main 2014/34794, and it is clear that the judgment is subject to the appellate remedy review in accordance with the aforementioned article of the Law. In this regard, the fact that the court of first instance indicated the legal remedy of appeal in the judgment part of the decision will not change the result. Accordingly, the … Regional Court of Appeals …. Civil Chamber, while it should be decided to send the file to our Chamber by accepting that the petition containing the request for legal remedy review for the decision of the first instance court belongs to the appeal request, it was not correct to enter the merits of the case and to decide to dismiss the case by abolishing the decision of the first instance court in accordance with Article 353/1-b-… of the CCP No. 6100, and it was not correct to accept the appeal request of the defendant’s attorney against the decision of the first instance court and … Regional Court of Appeals …. It was necessary to examine the appeal request of the defendant’s attorney against the decision of the court of first instance by reversing and lifting the decision of the Civil Chamber dated 20.04.2017, numbered 2017/143 main and 2017/175 decision.
…- The lawsuit is related to the claim for the collection of the penal clause arising from the non-competition. In the concrete dispute, the Code of Obligations numbered 818 is in force as of the expiration date of the contract concluded between the parties, and the provisions of Articles 348 and 349 of the Code should be applied in the dispute
is required. There is no limitation in terms of geographical area in the regulation regarding the prohibition of competition in Article 5 of the service contract dated 05…..2000 between the parties. Article 48 and the following articles of the Constitution of the Republic of Turkey, which are regulated under the title of Freedom of Labor and Contract, constitutionally guarantee that everyone has the freedom to work and contract in the field of his/her choice. Pursuant to Article 349 of the Code No. 818 (Article 445 of the TCO No. 6098), it is regulated that the non-competition clause shall not be valid if the non-competition clause does not contain equitable limitations in terms of place, time and subject matter in a way that jeopardizes the economic future of the employee. In the concrete case, since the lack of a geographical area limitation in the article of the service contract subject to the lawsuit between the parties regarding the prohibition of competition is of such a nature that the economic future of the employee is unfairly jeopardized, the contractual provision regarding the prohibition of competition should be deemed null and void according to the freedom of work and legal regulations explained above. While the court should make a decision by considering this issue, its acceptance with the written justification was not correct and the decision should be reversed for this reason.
CONCLUSION: For the reasons explained in subparagraph (1) above … Regional Court of Justice …. For the reasons explained in subparagraph (…) above, it was unanimously decided on 04/02/2019 that the appeal objections of the defendant’s attorney against the decision of the court of first instance be accepted and the judgment be reversed in favor of the defendant, and the prepaid appeal fee paid shall be returned to the appellant upon request.
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