Social right. “The mere hiring, under regular conditions, of former employees of a competing company is not in itself faulty”, recalled the Commercial Chamber of the Court of Cassation on September 28, 2022. It was responding to company A, on the verge of filing for bankruptcy because having lost twelve customers representing 52% of its turnover, following the resignation ( regular: compliance with notice) of its commercial director who had then recruited two of his former employees from his company B.
Company A considered their poaching “disloyal, because having targeted the “distribution” service, crucial for the functioning of society”. But “in the absence of unfair poaching maneuvers by B”, there is no fault. Contrary to the immediate hiring, without respect of the notice, of the essence of a service.
What about the subsequent canvassing of A’s customers by B? Baron d’Allarde (1748-1809) can rejoice: “By virtue of the principle of freedom of trade and industry, canvassing of the clientele of others is free, even by a former employee of the latter, as long as it is not accompanied by ‘a disloyal act’.
What is an unfair act? Beyond the revelation of manufacturing secrets (two years and a 30,000 euro fine), “the mere fact, for a company in the creation of which the former employee of a competitor participated, of holding confidential information relating to the activity of the latter and obtained by this employee during the performance of his work constitutes an act of unfair competition. (Cass. Com. December 7, 2022). It does not matter that these confidential files (customers, suppliers) have not (yet) been used.
rejection of subordination
This judgment therefore also recalls that an employee, who cannot be both a collaborator and a competitor, is bound by the obligation of non-competition inherent in any current contract, which obviously applies to employees in a position creating, alongside , their micro-enterprise (more than one million registrations in 2022). For these employees rejecting subordination, a first step before independence, in a market they know well…
So sign a clause of non-competition of six or twelve months, applicable after the termination of the contract? What can the ex-employer do in the event of a violation? First, immediately stop paying the necessary financial contribution linked to its execution. Then, notify the existence of the clause to the competitor: because “The employer commits a criminal fault who knowingly recruits an employee with knowledge of the obligation of non-competition subscribed by the latter, without it being necessary to establish against him the existence of unfair maneuvers” (Cass. Com, 1er June 2022).
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