NEWSLETTER-2017

272 NEWSLETTER 2017 Non-competition Clauses for Employees: Limitation of Non-competition Clauses in terms of Place, Time, Subject and Restriction Authority of the Judge* Att. Ozgur Kocabasoglu Introduction Provisions regarding non-competition agreements between em- ployers and employees that limit competition liberty and economic future of the employees 1 are stipulated in Articles 444-447 of Turkish Code of Obligations numbered 6098 (“TCO”). Valid conclusions of non-competition agreements are subject to the conditions regulated in Article 444 of the TCO. If these conditions; i.e. employee’s capac- ity to act, a written agreement and legitimate interest of the employer that is worth protecting, are not present, or if there is no possibility of obtaining information for the employee regarding the circle of cus- tomers of the employer, production secrets or the works conducted in the workplace, or if there is no possibility that the employee may harm the employer, then the contract shall be subject to sanction of nullity and is, therefore, invalid 2 . According to Article 6 of the Turkish Civil Code, the burden of proof for the presence of the validity conditions stipulated by the TCO rests on the employer 3 . In addition, pursuant toArticle 445/1 of the TCO, the obligation of non-competition of the employer as regulated by the non-competition agreement must be determined in a limited manner in terms of place, time and works that are within the scope of the prohibition; otherwise, * Article of November 2017 1 Eren, Fikret: Borçlar Hukuku Özel Hükümler, 2nd Edition, Ankara 2015, p.567. 2 Süzek, Sarper : “ Yeni Türk Borçlar Kanunu Çerçevesinde İşçinin Rekabet Et- meme Borcu ”, İÜHFM C.LXXII, No.2 p.457-468, 2014, p.462. 3 Süzek, Sarper : “ Yeni Türk Borçlar Kanunu Çerçevesinde İşçinin Rekabet Et- meme Borcu ”, İÜHFM C.LXXII, No.2 p.457-468, 2014, p.462.