NEWSLETTER-2017

275 LAW OF OBLIGATIONS Court of Cassation Decisions that Adopt the Opinion of a Judge’s Authority to Limit Non-competition Clauses in a way that sustains the Clause In many Court of Cassation decisions, it is emphasized that pur- suant to Article 445/2 of the TCO, the judge may limit an extensive non-competition clause in terms of scope and time by freely evaluating all the circumstances and the conditions, and by taking the opposing action that may be undertaken by the employer into consideration, in a just manner 6 . In this respect, the Court of Cassation deems it inap- propriate to render the non-competition clause invalid in agreements in which the limitation is made in a broad manner, without making an evaluation under Article 445/2 of the TCO. For example, the Court of Cassation reversed the decision of the first instance court that quali- fied an agreement stipulating a 5 year time limitation period for non- competition as a tying contract 7 . In this respect, the Court of Cassation reached the conclusion that under Article 445 of the TCO, the judge may limit this time period. According to the decision of the 11th Civil Chamber, in the event there is an extensive non-competition clause, taking the Constitution and other legislation provisions and the con- crete case into account, the authority to make adaptation in terms of the scope and time of the prohibitions is granted to the judge, and this authority could be exercised both in a case of adaptation and in a case of compensation claims that would be commenced in case of a breach. In terms of non-competition agreements that do not make any limitations, there is no consistency with regard to the Court of Cas- sation decisions. In a decision regarding the validity of a non-compe- tition agreement that does not include any limitation, the 11th Civil Chamber analyzed the topic as follows: 6 For examples see: Court of Cassation 11. HD, T. 10.5.2017, E. 2015/15290, K. 2017/2808;Court ofCassation11.HD.,T.19.4.2017,E. 2015/ 14741,K. 2017/2261; Court of Cassation 11. HD., T. 17.11.2016, E. 2015/12799, K.2016/8956; Court of Cassation 11. HD, T. 16.6.2016, E. 2015/12450, K. 2016/6672; Court of Cas- sation 11. HD., T. 30.3.2016, E. 2015/8396, K. 2016/3470; Court of Cassation 11. HD., T. 1.3.2016; E. 2015/1658, K. 2016/2244; Court of Cassation 11. HD., T. 22.2.2016, E. 2015/7354, K. 2016/1838 http://www.kazanci.com.tr/ ( Access Date: 23.11.2017). 7 Court of Cassation 11. HD. , T. 19.4.2017, E. 2015/ 14741, K. 2017/2261, http:// www.kazanci.com.tr/ (Access Date: 23.11.2017).