Netherlands Update: Statement of the week: “A non-solicitation clause is not the same as a non-competition clause, but does have an effect on an ancillary work clause”

It was an interesting week at the Zeeland-West-Brabant district court with regard to restrictive clauses, which results in the above cryptic title of this blog. In two judgments, the judges of this court link different clauses to each other, with interesting case law for practice. What was going on.

In the first ruling, the court had to shed light on a clause prohibiting the employee from “entering into or maintaining any business contacts with relations of the employer”. The employee joined a party that simply qualified as a business contact of his former employer. This ex-employer tries to give the relationship clause a twist by also reading a non-compete clause in it. The judge disagrees. The non-compete clause prohibits an employee from joining a particular party; A relationship clause prohibits the employee from doing business with relations of the ex-employer. That is fundamentally different. The conclusion was that the employee was free to join the relationship.

In the other ruling, the question was how to assess a clause that prohibits an employee from “working for relationships during and after termination of the employment contract.” It was a fixed-term employment contract, in which the employer does not substantiate the important business interests. The court states that the employer had an objective justification for refusing ancillary activities (‘during’). Unfortunately, the employer cannot invoke this because the clause is ‘null and void’. The employer has not substantiated the important business interests with regard to the part that qualifies as a relationship clause (‘after termination’). This part restricts the employee from ‘working in a certain way’ after the end of his employment and therefore the legislation on the non-competition and relationship clause applies. Consequence? The entire (!) clause is null and void and the employer cannot therefore invoke it with regard to the prohibition of ancillary activities.

The lesson: draw up your restrictive clauses carefully!

Read the two statements here:

Court Zeeland West-Brabant 15 February 2023 Court Zeeland West-Brabant 30 November 2023

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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