2002. A change abrupt rules of the game since

There will be nearly four years, by several cases that, at the time, have triggered properly a strong emotion, the Court of cassation decided that a non-compete clause, to be valid, must be paid (Cass. Soc., July 10, 2002). A change abrupt rules of the game since, until then, the financial contribution was mandatory under a collective agreement or, regardless of the sector concerned, in Alsace-Moselle.

This is not so much the new situation that has shocked the business that the retroactive nature of the decision: contrary to the law which has no effect that in the future, a change in judicial interpretation applies immediately all untried disputes and, in the particular case, to clauses of competition contained in written contracts before the judgments of July 2002. Suddenly, the unpaid provisions sleeping in many contracts of work have become null and void avenues, resulting in employers a double risk: they were more protected against the danger of their best features to compete and they were threatened with actions for damages on the part of employees who were prohibited certain projects without good reason.

As soon as they had wind of the thing, most of the HRD had the reflex to refer to their contracts to see if, fortunately, their predecessors had not had the good idea to provide a financial contribution and some have probably pushed a "wow" of relief in discovering a primer of monetary compensation which, they hoped it could satisfy the judges.

The endorsement to the contract of employment

This is probably what should happen in IPS Atlantic. This temporary work company over for Creyf's interim, concluded in May 2001, with one of his commercial assistants, through mutation, a rider to the contract of employment. A non-competition clause is included and provided for consideration but only breakdown at the initiative of the employer and that it is not a dismissal for misconduct subject serious or heavy.

February 4, 2002, the employee is laid off and challenged the grounds for his dismissal before the conseil de prud'hommes. The company meets the TAC to the tac a counterclaim because the employee has not respected his non-compete clause. Lack of chance, the time that the case comes before the Office of judgment, jurisprudence has changed the conditions of validity of the non-compete clause and the employee is not without invoking the nullity of his own.

Sentenced by the Court of appeal of Orleans, the employer submits to the Court of cassation that the disputed clause was only partially irregular: If the employee had resigned, he would have abandoned his application because in fact, no monetary consideration was planned in such a case, but since it was a dismissal and that he had paid the compensation agreed upon, he could not see why the clause should not be applied. The employee, he was indeed bound by the prohibition of competition it had agreed to and for which he had been paid.

A "corrupt" clause

Contrary to his expectations, the Court of cassation confirmed the appeal decision (Cass. Soc., May 31, 2006, no. 04 - 44 598), and it is explained: the requirement for paid compensation is justified by the fact that any non-compete clause violates the "basic freedom of employees to exercise a professional activity". To compensate for this violation of a fundamental freedom, it has provided the payment of a financial advantage.

As soon as the non-compete clause is inserted in the contract of employment, the field of exploration of the employee, if he seeks to convert is restricted, whether he decides to leave the company or the company decides to separate. The harm is perhaps less great in case of resignation, which can justify a modulation of the consideration, but it is not non-existent.

Once the hardship was that partial compensation, financial compensation was missing its goal and the whole of the clause was "plagued".

Expectations disappointed, therefore, for companies that secretly feeding hope to validate the terms "partially compliant".