NON-COMPETE & NON-SOLICITATION

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In practice, the non-competition clause is often coupled with a prohibition on soliciting a company’s teams or employees.

What is the difference?

The #non-competition clause prohibits engaging in an activity that would divert the clientele of a former employer (for an employee), a company or a fund acquired or linked by a cooperation agreement (for a company).

The #non-solicitation clause prohibits approaching his teams to capture his know-how, without necessarily going so far as to “disrupt” it.

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In this case concerning companies that had cooperated, the Court of Cassation emphasised that ‘this clause is not a non-competition clause, which binds an employee to his employer, but a non-solicitation clause between employers operating in the same field of competence’.

Its validity does not therefore necessarily meet the same #conditions as the non-competition clause. However, it is up to the trial judges to verify that the infringements of the freedom of work and establishment are “proportionate to the legitimate interests that the clause was supposed to protect”. (Cass Com, 27 May 2021, n° 18-23261 and 18-23699)

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