Newsletter-21

55 COMMERCIAL LAW and, thus, to protect its right to benefit from the non-material assets of the company, to develop know-how and goodwill, and especially to preserve its position in the market. With regard to the condition of reasonability, the non-compete obligation should not exceed the extent to which is necessary for its purpose. In other words, the non-compete obligation should not be more restrictive than the extent necessary to limit the competition of the seller in the area in which the seller may potentially compete in relation to the object of the transfer 9 . The Guidelines provide that “ in order for the non-competition obligation placed on the seller to be accepted as an ancillary restraint, its scope in terms of duration, subject, geographic area and persons must not exceed the reasonably necessary level. 10 ” Accordingly, the persons who are subject to the restriction, geographical limits of the restriction, and the areas subject to the restriction are also assessed under the condition of reasonability. In the abovementioned case, it is possible to discuss whether the non- compete obligation is reasonable or not. As is clear from the Court of Cassation’s decision, the non-compete obligation is limited to the Antalya region, where the company’s customer portfolio is located, in terms of location, to the storekeeping activities in terms of goods or commercial activities, to the term of the license in terms of restriction period, and to the seller, along with the companies in which the seller holds, or will hold, any shares, and the relatives of the seller in terms of persons subject to restriction. In order for the non-compete obliga- tion to be valid, the obligation should be limited to the area where the company provides goods or services and limited to the goods and ser- vices that are provided by the transferred company 11 . Accordingly, the restriction could be deemed reasonable, as it is limited to the activities of the company at the moment of the share transfer, which is store- keeping, and to the Antalya region. However, some may argue that limiting the activities of the companies in which the seller holds any shares or of the relatives of the seller, is not reasonable considering the “principle of being binding on the parties,” and the “principle of 9 Erdem, p. 127. 10 Guidelines on Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions, n. 50. 11 Güven , p. 279.