However only the employee may take advantage of this nullity 2

If an employee found a full freedom to work as soon as the breach of the contract of employment, the employer can protect themselves competitive actions of an ex-salarié by inserting a non-compete clause in his contract prohibiting it, over a period of time, the exercise of certain professional activities expressly described. We know that these clauses must be limited in time and space, essential to the protection of the legitimate interests of the company, and since a series of judgments by the Court of cassation on July 10, 2002, they must provide for the payment to the employee of a financial contribution to compensate the infringement of the freedom to work.

As early as January, 2006 (1), the social Chamber of the Court of cassation the principle according to which the compliance by one employee, an illicit non-competition clause necessarily causes harm, the amount will be appreciated by the judge. However, only the employee may take advantage of this nullity (2). In February, the Court finds that an employer who has concluded a contract with an employee, despite a clause inserted competition in the former contract of employment, may invoke the invalidity of this clause for lack of financial compensation (3).

To escape the payment of damages in respect of an unlawful non-compete clause, the employer must demonstrate that the employee violated the clause (4): in March, the Court considers that the employee who was respected until a certain date an illicit competition clause has the right to damages and interest for the period where met it (5).

The Court of cassation had already admitted in 2001 that the employee should benefit from the compensation of non-compete even if he could not exert a competitive activity because of his State of health (6). Attention, a too low financial contribution will be equated with a failure of consideration: in November, judges consider so derisory financial compensation set at 1/10th of gross earnings in January of last year worked and paid for the number of months component the period of non-competition. They feel while derisory consideration is equivalent to the absence of consideration, retain the illegality of the clause and believe that she had caused a prejudice necessary employee (7).

The nature of the amounts to pay varies according to whether the clause is void or valid: the financial contribution provided for by the non-compete clause follows, in effect, the wage system and obeys the five-year prescription while damages have compensatory in nature and are prescribed by thirty years. The consideration must be paid regardless of the author of the breach, even in the case of resignation, said the Court in May (8), regardless of the seriousness of the fault based the dismissal. The contract of employment cannot, moreover, exclude the benefit of the allowance for non-competition where an employee is dismissed for serious misconduct, says the Court in June (9). To escape the payment, remains to be the employer to waive the clause, releasing the employee of his non-compete obligation.

Waiver authority

The Court of cassation also intervened, in 2006, on the regime of the waiver. In February, she said that, when the collective agreement provides for the possibility for the employer to unilaterally waive the non-competition clause, the employer may validly exercise its right to waiver, even if the contract does not provide this faculty (10). In may, she recalled that waiver may be implied: little is therefore important that the employee be abstained claim payment (11). In the same way, the transactional agreement should provide such a waiver: "the contractual terms intended to be applied subsequent to the termination of the contract of employment are not, except as otherwise expressly provided, affected by the transaction between the parties (.). (12).