1E9Ct5D

consequence of otherwise rendering the entire non-competition covenant null and void.On this matter, case law has set out that the compensation cannot be considered fair ifit is manifestly unfair and disproportionate to the sacrifice requested from the employeeand to his/her reduced possibilities of income, independently from the benefit that couldderive to the employer from such limitation.iii.EnforcementIn case of violation of a post-employment non-competition agreement, the employer canrequest a preliminary injunction preventing the employee from working for thecompetitor for the duration of the non-competition agreement. If the employee does notcomply with the injunction, these actions constitute a criminal offence. In any case, it isalso possible to insert a specific clause in the non-competition agreement providing that,in case of complete or partial failure to comply with the covenant, the employee has torepay the money received from the employer and will also be liable to pay a penalty. Inthis regard, according to Art. 1382, second paragraph, of the Italian Civil Code 73 thepenalty is due regardless of proof of damage this means that if a clause providing for apenalty is inserted into the non-competition covenant, the employer is automaticallyentitled to the amount referred to in the penalty clause. If, however, the employerwishes to claim damages in addition to those provided for in the contract, it needs toraise a court action and prove the additional damages.73 Art. 1382, 2 nd par., of the Italian Civil Code (Royal Decree 16 th March 1942, n. 262) provides that «Thepenalty is due regardless of proof of damage».3082723.3