A post-employment non-compete is enforceable in Türkiye, but only inside a frame that Articles 444 to 447 of the Turkish Code of Obligations No. 6098 (TBK) draw tightly: it must be in writing, the job must have given the employee access to customers, production secrets or the employer’s business, the misuse of that access must be capable of causing the employer significant harm, and the restriction must be reasonable in territory, duration and scope, with a two-year ceiling in ordinary cases. Clauses that ignore the frame are not enforced; clauses that respect it are, and the disputes go to the commercial courts rather than the labour courts. This article explains what to write, what a court will do with an over-broad clause, how the penalty and injunction mechanics work, when the restriction dies with the contract, and where a non-solicit does the job better.
The four conditions of validity
Article 444(1) allows an employee with legal capacity to undertake in writing not to compete with the employer after the contract ends, in particular not to open a competing business, work for a competitor or otherwise take an interest in one. Article 444(2) sets the substantive conditions: the clause is valid only if the employment relationship gave the employee the opportunity to obtain knowledge of the employer’s customer base or production secrets or of the employer’s business, and if use of that knowledge would cause the employer significant harm. Both must be present. A junior developer who never met a customer and worked on a public open-source component may have had neither; a head of sales who owned the pipeline had both. Courts apply this test to the job as actually performed, not to the title, so a clause signed by every employee on the same template is enforceable against some of them and not others.
The writing requirement is strict: the undertaking must be in a signed document, and an e-mail acknowledgement is risky. The clause is normally placed in the employment contract; a separate deed signed at exit is also valid, and often more defensible, because it can be drafted for the role the employee actually held.
Reasonable limits and the two-year ceiling
Article 445(1) prohibits limits on territory, duration and type of work that would unfairly endanger the employee’s economic future, and caps duration at two years save for special circumstances. Article 445(2) gives the judge a discretion that founders must understand: an excessive non-compete is not void; the court may reduce its scope or duration, weighing all circumstances and any consideration the employer paid. This cuts both ways. A five-year, worldwide, all-industry clause will be cut down rather than struck, so the employer keeps something; but the employer who drafted it has told the court that it did not draft in good faith, and Turkish judges reduce such clauses hard. Reasonable drafting for a Turkish startup usually means: the territory in which the company actually sells (often Türkiye plus named markets, not “worldwide”); one year, rarely two; and a definition of “competing business” tied to the company’s actual product category, not to “technology” or “software”.
Consideration is not a condition of validity under Turkish law, unlike some jurisdictions, but Article 445(2) expressly tells the judge to take it into account. A garden-leave payment or a monthly compensation during the restricted period materially improves the odds of the clause surviving intact, and it is the norm in senior hires.
Breach: damages, penalty and the injunction that must be reserved
Article 446 sets out the remedies. The employee in breach must compensate all resulting damage (446(1)). If the clause is backed by a penalty and the contract does not say otherwise, the employee may free himself from the non-compete by paying the penalty, but remains liable for damage exceeding it (446(2)). The employer may demand that the breach be stopped, that is an injunction, only if it has expressly reserved that right in writing in the contract and if the importance of its threatened interests and the employee’s conduct justify it (446(3)). This last sentence is the one most Turkish non-competes get wrong: without an express reservation of the right to demand cessation, the clause is in practice a price list, because the employee can pay the penalty and go. Draft the reservation in, and draft the penalty at a level a court will not slash under Article 182(3) of the TBK, which allows the judge to reduce an excessive penalty of his own motion; multiples of one to two years’ salary are common, larger multiples invite reduction.
When the restriction dies
Article 447 ends the non-compete in two cases. It ends when the employer no longer has a real interest in maintaining it, for instance because the company has left the product line or the information has become public. And it ends if the employer terminates the contract without just cause, or the employee terminates for a reason attributable to the employer. The second rule is the practical one: a startup that lays off its sales director in a restructuring cannot then hold her to the non-compete, and a founder who makes an executive’s position untenable so that he resigns has, in law, released him. Employers that want a restriction to survive a no-fault exit therefore pair the non-compete with a paid garden-leave or compensation arrangement negotiated at exit, which changes the analysis from termination without cause to a consensual separation.
Which court, and how fast
Under the Court of Cassation’s case law, and consistent with Article 4(1)(c) of the Turkish Commercial Code, disputes arising from Articles 444 to 447 are commercial disputes heard by the commercial courts of first instance, not the labour courts. This matters for two reasons: the mandatory pre-litigation mediation applies in its commercial form, and the commercial courts are more accustomed to interim injunctions in business disputes. A well-drafted clause with an express cessation right and a documented interest can support an application for interim relief under the Code of Civil Procedure within weeks of the breach; a badly drafted one supports only a damages claim years later.
Non-solicit, confidentiality and the IP undertaking
Three neighbouring clauses carry much of the real protection and face fewer validity hurdles. A non-solicitation of customers and a no-poach of employees, drafted as separate undertakings, do not restrict the employee’s freedom to work and are assessed under general contract law rather than Articles 444 to 447, although courts will still test them for good faith and proportionality. A confidentiality undertaking outlives the contract by its own terms and is reinforced by the statutory duty of loyalty in Article 396 of the TBK during employment and by trade-secret and unfair-competition rules afterwards. And the IP assignment we discussed in the IP-into-the-company article ensures that what the employee takes to a competitor is skill, not the company’s code. A founder who has all three usually needs only a narrow non-compete for the handful of roles where Article 444(2)’s conditions are truly met.
A drafting checklist
Before you rely on a Turkish non-compete, check that it is in a signed writing; that it is limited to roles with real access to customers, secrets or the business; that territory, duration (twelve months as the default, twenty-four only for the top tier) and the definition of competitor are each reasonable and specific; that the penalty is set at a level a court will respect and that liability for excess damage is preserved; that the right to demand cessation is expressly reserved; that consideration during the restricted period is at least considered; and that the clause sits alongside separate non-solicit, confidentiality and IP undertakings so that the case does not depend on the non-compete alone.
Does a non-compete in a shareholders’ agreement follow the same rules?
No. Articles 444 to 447 govern the employment relationship. A founder’s non-compete as a shareholder is a commercial covenant under general contract law and Article 27 of the TBK on public policy, and is typically upheld for longer periods when tied to the sale of shares or to a continuing shareholding. Where a founder is both employee and shareholder, draft both, separately.
Can we enforce against the new employer?
Not under Articles 444 to 447, which bind the employee. Claims against a competitor who knowingly induces the breach are brought under the unfair-competition provisions of the Commercial Code (Articles 54 et seq.), which require proof of the competitor’s conduct.
Is a non-compete for a contractor governed by these articles?
Only if the relationship is in substance employment. A true independent contractor’s non-compete is a commercial covenant, but Turkish courts look through labels, and a full-time “contractor” on a fixed monthly fee will usually be treated as an employee.
Related: non-solicitation · penalty clause · know-how.
Sources. Turkish Code of Obligations No. 6098 (Articles 27, 182, 396, 444–447); Turkish Commercial Code No. 6102 (Articles 4, 54 et seq.). Statute links open the official Turkish texts on mevzuat.gov.tr.
This article is provided for general information only and does not constitute legal advice. Please seek legal support for an assessment of any specific matter.
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