NEWSLETTER-2017

274 NEWSLETTER 2017 Therefore, as there is no regulation that permits a judge’s intervention in the agreement according to Code of Obligations numbered 818, in contrast to Article 445/2 of the TCO, the sanction of nullity of the agreement shall be applied to the non-competition clauses that violate the law (that involves limitations that incorporate a significantly large scope, and that could result in financial destruction of the employee). Practice of the Court of Cassation Regarding Agreements that were terminated after the TCO’s Entry into Force The Court of Cassation Decisions that Invalidates the Non- competition Clause The Court of Cassation’s case-law demonstrates inconsistency concerning the agreements involving non-competition clauses during the term of the TCO regarding the application of Article 445/2 of the TCO. In certain decisions of the Court, specifying the geographical limits of the non-competition clauses as being within the Republic of Turkey is deemed to be contradictory to Article 445/1 of the TCO, and considered so as to not specify any particular area. For this reason, the Court deemed the non-competition clause invalid as it violates the liberty of labor that is protected under the Constitution. In the dis- senting vote of the aforementioned decision, it is argued that alleging that the agreement is invalid with respect to the same province, and even to the same neighborhood, by only giving the justification of inferring a considerably large area in the agreement, even if the agree- ment’s identifying the whole of the Republic of Turkey is not right 5 . However, in the aforementioned decision of the 11th Civil Chamber, Article 445/2 of the TCO is not mentioned, and the judgment is based on a constitutional justification regarding the liberty of labor. 5 Court of Cassation 11. HD., T. 14.5.2015, E. 2015/1789, K. 2015/ 6904, http:// www.kazanci.com.tr/ (Access Date: 23.11.2017).