EVALUATION ABOUT THE OBLIGATION OVER SUPPLY ISSUES IN THE FRANCHISE CONTRACTS IN TERMS OF COMPETITION LAW

Firms desire to get increase expanding of their brands and labor capacities like all over the world. One of the best way to do this is sharing the brand authors royalties, developed system and products commercially with third parties under certain rules. Thus, both its brand and products would be recognized and it would support to itself materially thanks to the third parties. Companies that try this route sign franchise agreements with third parties as the healthiest route.

Both sides; franchisor and franchisee must have some binding rules. One of the most important disputes that arises among the parties that concern the parties the most is how to obtain the products subject to the franchise and whether the franchisee will comply with the sanctions of the franchisor in this regard. The obligation to supply the material (raw material) required for the production of the product and / or the provision of the service only from the franchisor is not an obligation that constitutes the essential element of the franchise agreement

Franchisee can supply from other sources suitably with franchisor conditions. However, there may be a need to supply the material used in production / presentation from the same source in order to ensure the standard of product / service quality. Even, some products and services can be limited or special edition and may not be another source of supply. Therefore, the agreement that the material needed for the product or service subject to the franchise will be supplied only by the franchisee is a rule and it is a common practice in franchise relations.

Such agreements shall be deemed valid within the framework of the freedom of contract provided that is not contrary to the competition rules. According to the guideline about published Competition Board’s Vertical Agreements.” “The obligation of the franchisee not to compete with respect to the goods and services purchased by the franchisee is excluded from the scope of Article 4 of the Law where this obligation is necessary to protect the common identity and prestige of the franchise network.” In this case, the term of non-competition does not exceed the duration of the franchise agreement and will not create a problem under Article 4 of the Competition Law. 

To briefly referr to Article 4 of the Law on the Protection of Competition; “Agreements, concerted actions, between undertakings for the purpose of preventing, disrupting, or restricting competition in a particular market of goods or services, directly or indirectly preventing, breaking or limiting competition such decisions and actions of undertaking associations are unlawful and prohibited. The Competition Board stated that the majority of the obligations in the franchise agreement with the Guide issued were necessary for the protection of intellectual rights and the common identity of the franchise network and for the protection of the product, and those such restrictions were outside the scope of Article 4 of the Law. Thus, the franchisee can put a clause on the contract between them and the franchisor, so that the products will be purchased from a specific place and impose the condition that the franchisee must comply with this obligation. Agreements to this effect are valid. As a matter of fact, the Board has various decisions in this direction. To give an example; It is the decision of the complaint made with the claim that it restricts the competition by introducing the necessity of using the products such as scales, pos machines, cash registers, meat grinders, refrigerators belonging to a single brand in the contracts and specifications signed by Meat and Fish Department. The Board evaluated the complaint and decided that Meat and Fish department has designed a central system in order to protect the identity and prestige of the franchise network to be established, and in order for this system to be functional, the products to be used in the system have to be used in all sales points. Therefore, it was concluded that the non-compete obligation was not covered by Article 4 of the Act no 4054 during the agreement period. 

As it can be seen, the obligation to supply a brand for the protection of the identity of the franchise system will be valid if agreed in the contract. Of course, here the agreement must be in accordance with the rules of honesty and the whole agreement. That is, for example, the amount of material delivered by the franchisor to the franchisee when fulfilling the supply obligation of the franchisee being higher than the average in the market, having low quality, or in the event that the material that can be obtained from the market in term is collected in advance from the franchisee area, it may mean a violation of the franchisee agreement by the franchisee. In this case, the franchisee should warn the franchisor to change this practice, and if this warning is ineffective, the franchisee must procure the relevant material from another person and accept that it will not constitute a breach of the contract. The principle of contractual adherence is one of the basic principles of contract law, as a requirement of the rule of law, security and integrity. In contracts involving mutual obligations, it is essential that the parties comply with these obligations. Therefore, the practices that determine the terms of the procurement of products that comply with the whole contract and honesty rules will be valid as specified in the contract. The party receiving the franchise must pay attention to such obligations.

Soysal Avukatlık Bürosu; 2015 yılında İstanbul’da Avukat Süleyman Mert Soysal tarafından kurulmuştur. Avukat Süleyman Mert Soysal İstanbul’da uluslararası alanda faaliyet gösteren saygın hukuk bürolarında 2006 yılından itibaren özellikle fikri mülkiyet, bilişim, ticaret ve şirketler, sağlık, medya ve reklam hukuku alanlarında çalışmış, bu uzmanlık alanlarından yola çıkarak 2015 yılından itibaren de Soysal Avukatlık Bürosu’nu kurmuştur.

Soysal Avukatlık Bürosu, müvekkillerinin ihtiyaçlarını kendi ihtiyacı gibi görüp; taleplerini daima ön planda tutmayı temel prensip edinmiştir. Çalışmalarımızda; genç, dinamik ve istekli yapımızla müvekkillerimize gerekli en yakın ilgi gösterilirken uluslararası alanda faaliyet gösteren hukuk bürolarında 15 yıla yakın çalışarak elde ettiğimiz deneyim ve kurumsal yapı anlayışı da yansıtılmaktadır. Bu çerçevede Büromuz gerek dava takibinde gerekse ticari işletmelerin günlük işlerinden doğabilecek hukuksal sorunlarda müvekkillere en hızlı ve fakat en kapsamlı ve etkili çözümler sunmayı hedeflemektedir. Soysal Avukatlık Bürosu, iş dünyasındaki yenilikleri de çeşitli mesleki üyelikleri ve katıldığı konferanslar aracılığı ile takip ederek yurt içindeki çalışmalarına katkı sağlamaktadır.