Uitspraak Hoge Raad: concurrentiebeding in personeelsreglement

Friday, 25 April 2008 10:44

On 28 March 2008, the Supreme Court pronounced a significant judgement concerning the competition clause and the requirement to set agreements down in writing. What were the circumstances? The employee starts working for the employer in the role of assistant accountant. Terms and conditions of employment are applicable to the employment contract, in which a non-compete clause has been included. After a couple of years the employee is sent a revised copy of the terms and conditions of employment (with covering letter). A non-compete clause is included in the terms and conditions of employment. The employee is requested to sign the covering letter (and with it the amended terms and conditions of employment). The employee signs the letter and returns it. The employee then terminates the employment agreement after a couple of years and joins the competitor. The competition clause is pointed out to the employee by the employer's solicitor. In the ensuing legal proceedings, the employee argues that the competition clause was never legitimately agreed, because only signing a letter in which reference is made to enclosed terms and conditions of employment is insufficient grounds to induce that the employee has accepted the competition clause in writing. According to the employee, this did not meet the requirements of Article 7:653 Paragraph 1 of the Dutch Civil Code, in which it was prescribed that a competition clause only applies when it has been agreed in writing. The Supreme Court does not accept the employee's case and rules that the requirement for written agreement has indeed been fulfilled. In the view of the Supreme Court, by signing the letter the employee was expressing his acknowledgement of and agreement with the competition clause. On the other hand, the Supreme Court emphasizes that the requirement for written agreement is not satisfied in cases where the employee agrees in writing that he assents to the content of a document containing a competition clause which has not been enclosed in written form, unless the employee also explicitly declares that he agrees to the competition clause. In spite of this ruling, the formulation of a competition clause is still a matter of a great deal of precision. Unsurprisingly it is advisable always to have a competition clause or non-solicitation clause drawn up or checked by a solicitor. If you would like any information or advice, please feel free to get in touch with Roos Koster-Mulder, employment law solicitor T +31 (0)71 - 535 80 39 or E This e-mail address is being protected from spambots. You need JavaScript enabled to view it