1E9Ct5D

1. ValidityFor the validity of a non-compete, section 7:653 (1) and (2) of the Dutch Civil Code(DCC) determines three criteria. The first criterion to a clause between an employerand an employee, restricting the latter’s rights after termination of the (employment)agreement to work in a certain capacity, is that the employer had agreed such clause inwriting. As, by agreeing to a non-competition clause, an employee’s rights to work in acapacity that he may desire after termination of the employment agreement areconsiderably restricted, the legislator has set stringent requirements for the validity of anon-competition clause. For example, a non-competition clause not agreed in writing isnull and void. The requirement that the clause be agreed in writing is interpreted verystrictly in case law: non-competition clauses in staff handbooks or non-competitionclauses not signed by the employee are very likely to be nullified by the court. 53Furthermore, if the position of an employee has changed significantly, case law requiresthat such a non-competition clause be re-agreed. 54The second criterion is that a non-compete is only valid if it has been agreed upon withan adult employee.The third criterion is only applicable in case of a fixed term employment contract.Pursuant to section 7:653(2) DCC, which has some into force on 1 January 2015, inprinciple, it is prohibited to agree upon a non-compete clause in a fixed termemployment contract, unless the employer has substantial business or service interests53 Supreme Court 28 March 2008, LJN BC0384 (Philips/ Oostendorp).54 Supreme Court 5 January 2007, LJN AZ2224 (AVM Accountants/Spaan).3082723.3