11th Civil Chamber of the Supreme Court
Base Number: 2017/3251
Decision Number: 2019/805
“Justice Text”
COURT: … REGIONAL COURT OF COURT OF COURT …. LAW OFFICE
ON BEHALF OF THE TURKISH NATION
In the case heard between the parties… After the defendant’s attorney appealed the decision dated 28/11/2016 and numbered 2015/320 E. – 2016/777 K., given by the 7. Commercial Court of First Instance, regarding the acceptance of the appeal request … Regional Court of Justice …. The Supreme Court of Appeals requested the examination of the decision dated 20/04/2017 and numbered 2017/143-2017/175 given by the Civil Chamber, and it was understood that the appeal petition was submitted in due time. After reading and examining the petition, pleadings, hearing minutes and all documents, the necessity of the job was discussed and considered:
Plaintiff’s attorney; According to the 5th article of the service contract between the client and the defendant, the defendant cannot transfer the workplace secrets of the defendant and the customer environment to third parties during the working period, cannot engage in another job on the same subject (faxserver) within 6 months after the termination of the employment contract, and directly or indirectly in this position and the client’s responsibility. 7 Gen Bilgi ve İletişim Hizm. Ltd. Şti., on the defendant’s computers, within 6 months from the termination of the employment contract, he claimed that his client had correspondence with his customers in the virtual environment regarding establishing commercial connections, and that this situation is contrary to the prohibition of competition, and the CBRT effective sale on the actual payment day of the penalty clause of 50.000 USD. demanded and sued for the collection with interest on the exchange rate.
Attorney for the defendant; by filing an objection to duty and pending, the client terminated the employment contract due to non-payment of his rights, the penal clause was invalid only because it was written against the worker, the penal clause became void with the termination of the contract, the client did not have any activity that would necessitate the penal clause, the plaintiff did not work in another job related to the subject of his activity, He demanded the dismissal of the case, arguing that the condition was exorbitant and that it should be criticized.
By the court of first instance, according to the scope of the claim, defense, expert report and the entire file; that a service contract dated 05…..2000 was drawn up between the parties, there is a prohibition of competition for 6 months after the end of the contract in Article 5 of the service contract, and it was decided to pay a penalty of 50.000,00 USD in case of contrary behavior, … from the file no.
It has been finalized on 11.06.2009, … 7. From the file numbered 2002/1603 of the Labor Court, it was accepted that the service contract was terminated unjustly by the plaintiff and it was decided to collect the worker’s receivables of the defendant, even if the contract was terminated unjustly, this situation does not remove the employee’s obligation to keep confidential, the contract 5/d Since the non-competition clause, which is accepted to be implemented for 6 months after the end of the contract, includes the obligation to keep confidentiality, it was decided to accept the case on the grounds that the defendant violated the obligation to keep confidential, and to collect 50,000 USD from the date of the lawsuit with the interest to be accrued in accordance with Article 4/a of the Law No. 3095.
An appeal was filed by the defendant’s attorney against the decision.
… by the District Court of Justice, according to the scope of the entire file; In the file of the 7th Labor Court dated …/11/2009 dated 2007/20 – 2009/821 Decision, it was accepted that the employment contract was terminated in a way that the employee would not be entitled to severance and notice compensation in the lawsuit filed by the defendant in our file regarding the worker’s receivables. Indemnities were rejected, the decision was finalized after the Supreme Court’s inspection, the absence of a geographical area limitation in the article on the non-competition of the service contract signed by the defendant is of the nature to cause the employee’s economic ruin, this situation is contrary to the legal regulations regarding freedom of work and freedom of contract, only the customer list appears on the defendant’s computer. it is not sufficient and it cannot be proven that he caused the plaintiff’s loss by providing benefit to himself or to the third party by using this list, the plaintiff also left the lawsuit filed against the third party out of action for the same legal reason without proceeding, The decision of the court of first instance was accepted on the grounds that the contractual provision regarding the tomb is invalid and no penal clause can be demanded on the basis of an invalid contract.
It was decided to dismiss the case as per the decision.
The decision of the District Court of Appeal was appealed by the plaintiff’s attorney.
1- Provisional Law No. 6100 …. item …. Paragraph “About the decisions taken before the start of office of the regional courts of appeal, the provisions of Articles 427 to 454 of the Law No. 1086, before the amendment made with the Law No. 5236 dated 09/09/2004, shall continue to be applied until they are finalized. Files regarding these decisions cannot be sent to the regional courts of appeal.” has jurisdiction. Although the decision of the court of first instance on 28.11.2016 regarding the acceptance of the case with the reason summarized above was made after the regional courts of appeal became operational, the decision dated 07.07. It has been reviewed with the decision dated 2014/30815 and decision numbered 2014/34794 and it is clear that the provision is subject to the review of the appeal legal remedy pursuant to the aforementioned Law article. In this context, the fact that the court of first instance has shown the remedy of appeal in the judgment part of the decision will not change the result. Accordingly, the file was sent to the … District Court of Justice …. While it should be decided by the Civil Chamber that the petition containing the request for legal action against the decision of the first instance court belongs to the appeal request, and the file should be sent to our Department, the case should be rejected by entering the essence of the matter and in accordance with Article 6100 of HMK 353/1-b-…, the decision of the first instance court was annulled. the decision was not correct, with the acceptance of the defendant’s attorney’s appeal against the decision of the first-instance court … Regional Court of Justice …. The decision of the Civil Chamber dated 20.04.2017, with the basis of 2017/143 and decision numbered 2017/175 was overturned and annulled, and it was necessary to examine the appeal of the defendant’s attorney against the decision of the first instance court.
…- The case is about the request for the collection of the penal clause arising from the prohibition of competition. In the concrete dispute, the Code of Obligations No. 818 is in force as of the date of the termination of the contract concluded between the parties, and the application of the provisions of Articles 348 and 349 of the UK in the dispute.
required. In the regulation regarding the non-competition in Article 5 of the service contract dated 05…..2000 drawn up between the parties, there is no restriction in terms of geographical area. It is constitutionally guaranteed that everyone has the freedom to work and contract in any field they wish, in Articles 48 and the following, which are regulated under the title of Freedom of Work and Contracts of the Constitution of the Republic of Turkey. Pursuant to Article 349 of the BK No. 818 (Article 445) of the Code of Law No. 6098, it is regulated that the prohibition of competition shall not be valid if the prohibition of competition does not contain equitable restrictions in terms of place, time and subject, in a way that endanger the economic future of the worker. In the concrete case, since the lack of geographical area limitation in the non-competition article of the service contract subject to the lawsuit between the parties is of a nature to endanger the economic future of the worker in an unfair manner, the contract provision regarding the freedom of work and non-competition should be considered invalid according to the legal regulations explained above. While the court should have made a decision considering this issue, its acceptance with written justifications was not correct and the decision had to be reversed for this reason.
CONCLUSION: For the reasons explained in paragraph (1) above … Regional Court of Justice …. The decision of the Civil Chamber dated 20.04.2017, basis 2017/143 and decision numbered 2017/175 is OVERFINED AND REMOVED, the defendant’s attorney’s appeal against the first instance court decision is accepted for the reasons explained in subparagraph (…) It was decided unanimously on 04/02/2019 to return him to the appellant.
