137 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ liability is a consequence of the provision of Article 6/3 of the HR, which stipulates that the employment contracts existing at the time of the transfer are transferred to the transferee with all their rights and obligations in accordance with the Law and that a two-year limitation is imposed on the liability of the transferor.73 As a rule, it is not possible for the transferee employer to be held liable for the debts arising from an employment contract that does not exist at the time of the transfer, in the face of the provisions of the Labor Law regarding the transfer of the workplace (Art. 6/1). Although Article 6 of the Labor Law does not protect the employment contracts terminated before the transfer in terms of joint liability, it is stated in the doctrine that if the conditions are met, protection can be provided for these employees by applying the provisions of the Turkish Code of Obligations regarding the transfer of the enterprise.74 Again, the Court of Cassation considers it possible to establish a joint liability relationship based on these provisions for the employees whose employment contracts are terminated if the conditions are met.75 Pursuant to Article 202 of the Turkish Code of Obligations titled “acquisition of an asset or an enterprise”, “the transferee of an asset or an enterprise, together with its assets and liabilities, shall be liable to the creditors for the debts in the asset or enterprise starting from the date of notification or announcement” (Art. 202/1). In this case, the transferor will also be liable together with the transferee for a period of two years (Art. 202/2). If the transferee employer fails to make the announcement mentioned in the article, the two-year period will not start to run.76 Unlike Article 6 of the İK, the provision does not make a distinction as to whether the employment contracts exist at the time of 73 Özkaraca, p. 334. 74 Özkaraca, p. 345. 75 Yarg. 9. HD, 12.10.2004, E. 2004/13687, K. 2004/22962, Cevdet İlhan Günay, İş Kanunu Şerhi, Vol. I, 2. Baskı, Ankara 2006, p. 281; Yarg. 9. HD, 05.10.2006, E. 2006/4720, K. 2006/25950, (www.kazanci.com, AD. 7.11.2021); Yarg. 21. HD, 19.10.2010, E. 2010/3450, K. 2010/10172, Çalışma ve Toplum, Issue 31, 2011/4; Yarg. 21. HD, 02.07.2011, E. 2010/3098, K. 2011/5070; Yarg. 9. HD, 11.03.2020, E. 2016/15573, K. 2020/4215, (www.lexpera.com, AD. 28.1.2022). 76 Hamdi Mollamahmutoğlu/Muhittin Astarlı/Ulaş Baysal, İş Hukuku, Ankara 2014, p. 270.
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