Non-compete clause

Under prohibition of competition restricting the economic activity is understood with respect to an existing or past contractual relationship in German law. It exists mainly in the German labor law, but also in commercial law for independent agents § 90a HGB and corporate law, eg § 112 HGB.

  • 4.1 waiting allowance
  • 4.2 -competition clause in a one-man GmbH

While an employment relationship (Legal -competition clause )

During the existence of an employment relationship, it is forbidden to the employee to make his employer without his consent competition. The employee may therefore not do business in the same field of activity of the employer for other persons or for their own account.

If you breach the ban on competition of workers to the employer is liable for damages. Also, a termination may be justified under certain circumstances.

The legal basis is § 60 HGB, which applies directly only for trading agents. While this is only the smallest part of the workers, but the Court shall make an analogous application to all workers.

After termination of employment ( Non-compete clause )

In principle, the compete clause ends after termination of employment. However, it may be agreed in writing that the former employee may make the employer after termination of the employment relationship is no competition ( " non-competition agreement "). The legal basis is § 110 Industrial Code in conjunction with § 74 to § 75f Commercial Code. The non-competition clause, for example, be part of the employment contract.

Requirements

  • The non-competition clause is only up to a maximum period of 2 years allowed ( § 74a para 1 sentence 3 HGB).
  • In the agreed period of the former employer ( at least half of the last salary ) (§ 74 para 2 HGB) has this limitation by a corresponding monthly payment balance ( waiting allowance ).
  • The employer has a legitimate business interest asserted (for example, protection of trade secrets or its customers or suppliers circuit acc. § 74a para 1 sentence 1 HGB).
  • Written agreement of the post -competition clause ( acc including handing over the certificate. § 74 para 1 HGB).
  • No agreement with minors (§ 74a para 2 HGB).
  • The employer ( " principal " ) can do without the expressed prior to competition clause before the termination of employment. This waiver, however, freed him only after a year of maternity leave payment obligation ( § 75a HGB).
  • Details of the qualifying remuneration rules § § 74b and 74c HGB. In particular, is regulated there, as the waiting allowance calculated and otherwise purchase will be credited.

A non-binding pursuant to § 74a para 1 HGB is available if the non-competition clause is disproportionate. (Example: A Bavarian Brewery puts master brewer a competition ban from Germany to order the progress of the master brewer is unreasonably difficult, and therefore the ban on competition binding.. ) It is non-binding, even if the waiting allowance is granted less, as required by law, § 74 Abs. 1 HGB.

Directors and executive officers

In addition to the provisions in the Commercial Code and the Industrial Code, there are also non-competition clause for board members of a corporation as well as personally liable partner of a KGaA, see § 88, § 284 AktG during the existing contract. This also applies to managing a limited company, derived from their general duty of loyalty, § 35 This does not apply a one-man GmbH, in the words of the sole shareholder is also the Managing Director.

Non-compete prohibitions exist only if specifically agreed.

Tax and social security aspects

Waiting allowance

Leave compensation for post-contractual non-competition clauses are subject to income tax. However, since there is no employment, social security contributions are not remitted.

Competition clause in a one-man GmbH

In a one-man GmbH can contest of the managing director lead to tax problems from the viewpoint of a hidden profit distribution.

German labour law Employment#Employee
484692
de