Non-competition clause

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In German law, a non-competition clause is understood to mean the restriction of economic activity with regard to an existing or past contractual relationship. It mainly exists in German labor law , but also in commercial law for independent commercial agents, Section 90a of the German Commercial Code (HGB) and in company law, e.g. B. § 112 HGB.

During an employment relationship (statutory non-competition clause)

During the existence of an employment relationship , the employee is prohibited from competing with his employer without his consent. The employee is therefore not allowed to do business in the employer's market area for other people or for his own account.

If the non-compete clause is violated, the employee is liable to pay compensation to the employer . A termination may also be justified under certain circumstances.

While Section 60 of the German Commercial Code (HGB), which only applies directly to commercial assistants , was used as the legal basis , the ban is now attached to Section 241 (2) BGB by way of a supplementary interpretation of the contract.

After termination of the employment relationship (post-contractual non-competition clause)

In principle, the non-competition clause ends after the employment relationship has ended. However, it can be agreed in writing that the former employee may not compete with the employer even after the employment relationship has ended ("post-contractual non-competition clause"). The legal basis is Section 110 Trade Regulations in conjunction with Section 74 to Section 75f of the German Commercial Code. The non-compete clause can, for example, be part of the employment contract.

requirements

  • The non-competition clause is only permitted up to a maximum duration of 2 years ( Section 74a, Paragraph 1, Clause 3 HGB).
  • In the agreed period, the former employer must compensate for this restriction with a corresponding monthly payment (at least half of the last salary) ( parental leave allowance ) ( Section 74 (2) HGB).
  • The employer must assert a legitimate business interest (e.g. protection of trade secrets or his group of customers or suppliers in accordance with Section 74a, Paragraph 1, Clause 1 of the German Commercial Code).
  • Written agreement of the post-contractual non-competition clause (including handover of the certificate in accordance with Section 74 (1) HGB).
  • No agreement with minors possible ( Section 74a (2) HGB).
  • The employer (“principal”) can waive the non-compete clause that was pronounced in advance before the employment relationship is terminated. However, this waiver only releases him from the parental leave payment obligation after one year ( § 75a HGB).
  • Details of the parental leave allowance are regulated in Section 74b and Section 74c of the German Commercial Code. In particular, it regulates how the compensation is calculated and other earnings are taken into account.

A non-binding character according to Section 74a (1) of the German Commercial Code (HGB) exists if the non-competition clause is disproportionate. (Example: A Bavarian brewery imposes a non-competition prohibition on Braumeister for the whole of Germany. This makes advancement of the brewmaster unreasonably difficult and thus the non-compete clause is also non-binding.) It is also non-binding if the parental leave payment is lower than the statutory requirement, Section 74 Para 1 HGB.

Board members and managing directors

In addition to the regulations in the HGB and the GewO, there is also a non-competition clause for members of the management board of a stock corporation and for personally liable partners of a KGaA, see § 88 , § 284 AktG during the existing contract. This also applies to managing directors of a GmbH, derived from their general duty of loyalty, § 35 . This does not apply to a one-man GmbH, in which the sole shareholder is also the managing director.

Post-contractual non-compete obligations only exist on the basis of special agreements.

Tax law and social security law aspects

Parental leave allowance

Compensation for post-contractual non-competition clauses is subject to income tax. However, since there is no employment, no social security contributions have to be paid.

Non-competition clause at one-man GmbH

In the case of a one-man GmbH, competition between the managing director can lead to tax problems from the point of view of a hidden profit distribution .

literature

Web links

Individual evidence

  1. ↑ Nomos Verlagsgesellschaft: The basics of the non-competition clause accompanying the contract in German labor law . 1st edition. Baden-Baden 2017, ISBN 978-3-8487-3893-9 .