Non-competition clause in the event of contractual termination

Beware of the deadline for lifting a non-competition clause
in the event of contractual termination

A non-competition clause is a clause which prohibits an employee, after the termination of his employment contract, from working in a competing company.

To be valid, the non-competition clause must be provided in writing and meet several conditions of validity, including the payment of financial compensation.

To be exempted from the payment of this consideration, it is possible to lift the prohibition of competition if the contract provides for it, i.e. to write to the employee that he is ultimately not bound by the clause .

This possibility for the employer to lift the non-competition clause is governed by increasingly strict deadlines, to limit the uncertainty in which the employee finds himself as to his possibility of accepting a competing job.

Judgment no. 20-15.755 of the Social Chamber of the Court of Cassation

In a very recent decision, the Social Chamber of the Court of Cassation ruled that independently of the clauses of the contract or the collective agreement, the non-competition clause must be lifted no later than the date of termination of the contract provided for in the conventional termination form.

This decision is in line with the logic of the Social Chamber, which also judges that when an employee is dismissed for serious misconduct, the non-competition clause must be lifted at the latest when the employee actually leaves.

Be careful therefore to respect this strict deadline to lift a non-competition clause, failing which, the clause will be applicable and must be remunerated until its term, unless the parties agree.

Read more: Judgment 20-15.755