NEWSLETTER-2019-metin

59 COMMERCIAL LAW transferred employees, the transferor company shall also be jointly li- able for employees’ claims as to wages, bonuses, holidays and related payments accrued prior to the transfer for two years pursuant toArticle 6(3). On the other hand, according to Article 6(4), “provisions as to joint liability shall not be applicable in cases where the corporate legal personality status ceases to exist as a result of a merger, participation, or where the corporate type is changed”. The Article outlines specific transaction types, whereby the joint liability for two years provision shall not apply and it is arguable that under all of the specific transac- tion types listed in the Article (mergers, participations, and changes of corporate type), the transferor company no longer exists and, ac- cordingly, there is no legal personality that could be jointly liable with the transferor. To that end, although it is not a transaction type listed under the article, it can be argued that the joint liability for two years rule shall not apply in full spin-offs, since the transferor does not exist anymore to share the lability with the transferee. On the other hand, considering the protective nature of the provision, under partial spin- offs, it can be argued that the joint liability for two years rule may still be applicable, since it was not opted out specifically as a transaction type, which falls outside the scope of the joint liability rule for 2 years under Article 6. In any event, as will be explained below, an employee may rely on the TCC provisions, which state that the transferor and the transferee shall be jointly liable, without any time limitation, for the employee’s rights. Transfer of Employees in Spin-offs Pursuant to TCC In addition to the Labor Law, as mentioned above, the TCC has specific provisions that regulate employee rights in case of spin-offs. Therefore, confusion as to which shall apply may arise, in practice. However, it can be argued that the provisions of the TCC shall prevail for spin-offs in the case of conflicting provisions since the Labor Law provisions regulate the transfer of employees under different types of transactions, whereas the TCC provisions, in relation to the transfer