The employee worked as an international truck driver for Meijndert Trucking B.V. from 2015 until the end of February 2020. His permanent employment contract included a non-compete clause. On 1 March 2020, he joined a competitor of the employer as a driver. In summary injunction proceedings, the employer sought an order requiring the employee (1) to stop and refrain from working for the competitor for the remaining term of the non-compete clause, (2) to pay the contractual penalty, and (3) to fully comply with the non-compete clause. In a counterclaim, the employee sought annulment of the non-compete clause, or alternatively its suspension from 1 March 2020 until a final ruling on its validity in separate proceedings on the merits. The subdistrict court granted the employer’s claims and rejected the employee’s. The Court of Appeal overturned the subdistrict court’s ruling, rejected the employer’s claims, and suspended the non-compete clause from 1 March 2020. The Court of Appeal held that a non-compete clause is meant to protect the employer’s business interests, not to tie employees to the business. It ruled that the employee’s interest in being released from the clause outweighed the employer’s interest in enforcing it. The employer appealed to the Supreme Court, arguing that the Court of Appeal had wrongly failed to weigh, as part of the balancing test under Section 7:653 of the Dutch Civil Code, the employer’s interest in retaining the employee for some further time so it could find replacement staff in a tight labour market – failing which, according to the employer, its operations and business continuity would suffer, harming its commercial interests.
The Supreme Court ruled that a clause between employer and employee restricting the latter’s ability to work in a certain way after the contract ends (a non-compete clause) can be wholly or partly annulled by a court if the employee is unfairly disadvantaged by it in relation to the employer’s interest being protected. A claim for full or partial annulment of such a clause cannot be granted in summary injunction proceedings. A claim to suspend such a clause, however, can be granted in summary proceedings. In assessing such a claim, the interim relief judge must form a provisional view of the balancing of interests to be carried out. In that balancing exercise, the employer’s interest in keeping an employee employed for a further period – even where the employer needs time to find replacement staff in a tight labour market – plays no role. The Supreme Court ruled against the employer.
For the full ruling, click here (in Dutch).
For the text of Section 7:653 BW, click here (in Dutch).
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