Prohibition of competition in structural changes within theframework of company law regulations

The non-competition concept, based on article 167 of the Constitution, has also been subject to the provisions of the Turkish Commercial Code (TCC) No. 6102 and thus has taken its place in company law. With the non-competition regulations, which protect the interests of the company and, therefore, other stakeholders who have a legal relationship with the company, the legislator aimed that managers or partners avoid works and transactions that will harm the company. In this context, in our study, firstly, the purpose of the prohibition of competition (ratio legis) and its differences with other concepts were revealed. The regulations in the TCC were examined separately in terms of company types. Although there are differences for each type of company in terms of the implementation of the prohibition, it is seen that the regulations regarding the prohibition of competition are based on certain principles. Accordingly, since the prohibition of competition is not mandatory, it is possible to remove it or change its scope. Again, it is possible to regulate the prohibition with a contract to be concluded between the parties. Since the narrow interpretation of the prohibition is essential, excessive restriction of the freedom of work and contracting regulated in article 48 of the Constitution will not be legally valid. Likewise, prohibitions regulated by contract are subject to the limits of freedom of contract. Although the prohibition primarily ensures that companies can carry out their day-to-day operations, it also exists in structural change transactions. In this context, in our study, how the scope of the prohibition will change during the structural change processes is revealed within various possibilities. Finally, since it is essential to protect the interests of the companies in the structural change processes, the effect of the prohibition of competition on the company's interest in this process has been examined in the context of merger and acquisition, division, and conversion transactions.