Agora Détectives

How to prove non-compliance with a non-competition clause?

What is the non-competition clause?

The non-competition clause is an « agreement » included in an employment contract with the purpose to prohibit an employee, at the expiration of his employment contract, from working with a company likely to compete with his former employer.

In commercial law, the non-competition clause is very important since it will make it possible to protect the interests of an entrepreneur, a company or a company vis-à-vis its competitors who may have knowledge of sensitive and strategic information (customer file, suppliers, commercial and marketing strategies, technological and industrial research, etc.).

Validity of the clause: Respect of the specific criterias

However, because this clause could impose such a restriction on the possibility to work for an individual , its validity is subject to 4 very precise criteria ruled by a court decision rendered on July 10, 2002 issued by The employment division of the Supreme court (Court of Cassation appeal n°00-45135).

This judgment thus highlights that the competition clause must:

  1. Be essential for the protection of the legitimate interests of the company
  2. Be limited in time and space
  3. Take into account the specificities of the employee’s job
  4. Include the obligation for the employer to pay the employee a financial compensation (even if the collective agreement of the company does not provide for it)

Please note: If a company does not comply with any of those conditions or does not provide financial compensation, the competition clause will not stand.

Only if those 4 rules are respected , the clause is considered valid and must be respected.

However, in the event of non-compliance with the non-competition clause by the employee, the employer can interrupt the payment of the financial compensation and a judge can order the employee to pay damages.

If the former employer has doubts or reason to believe that. Hence the importance of the intervention of a private detective who can then allow a company to obtain proof of whether or not a former employee has complied with a non-competition clause.

Balance de la justice

Investigations must be fair and proportionate to the damage

The investigations carried out by the private detective will then make it possible to establish an investigation report which can be provided before the competent courts.

The investigations must be carried out in a fair manner and proportionate to the damage suffered by the company. Economic and strategic issues are often important for the company, especially when an employee goes directly to work for a competitor.

These investigations may also motivate the intervention of a bailiff to find the violation of the non-competition clause and obtain evidence with probative value.

Shadowing and surveillance are no longer the only means of proof accepted by the judge, so-called OSINT (computer) investigations also regularly make it possible to obtain essential evidence.

Do not hesitate to call on real investigation professionals in the event of strong suspicions of the disrespect of a non-competition clause by a former employee!

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