Resumen de Employment non-competes in a portuguese and spanish context: Contribution from the iberian model

Duarte Abrunhosa e Sousa, Lourdes Mella Méndez

• Non-competes make up a truly exceptional legal regime in Labor Law.

  In fact, the authors note that this type of agreement is one of the few legallabor covenants that exist to protect the exclusive interests of employers.

  Thus, when lawful, non-competes allow a worker to restrict his or her freedom to work in order to safeguard an employer’s interest worthy of protection. This way, it is not supposed to be a common area for Labor Law.

  Although the focus of this analysis is essentially related to the identification of an Iberian origin model regarding non-competes, we cannot forget to always remember the Portuguese and Spanish legal systems are distinct and independent. However, they are both subject to some similarities that may result not only from their geographical and cultural proximity but also from the influence of the legislation issued by the European Union that is common to both. Therefore, from a theoretical point of view, it is possible to compose a strategic confluence related to certain specific legal themes. The normative densification in the ordinary legislation of non-competes is no exception to this reality. In fact, despite the slight difference of regimes, this type of covenants has a relatively univocal orientation in terms of legislative technique. So, both work on the same principles.

  In light of the above, the regime of non-competes in Portugal and Spain has a Labor Law nature and is integrated in the basic regulatory instruments of the respective national Labor Law. Indeed, it is in the Labor Code and the Statute of Workers where we will find the regulation of noncompetes. It should also be noted that the Labor Code has 566 articles, so it has a broad regulation of legal-labor matters. Thus, non-competes are not an exception and are integrated in this legal diploma as part of individual labor relations. The Estatuto de los Trabajadores is not as broad, since it has only nine-two articles and regulates the most elementary rules of Spanish Labor Law.

  This factor evidences the importance attributed to this regime by the Spanish lawmaker to integrate it in this diploma where the most basic and important labor rules are contained.

  This being said, we can identify in the present approach the dimension of non-competes in Portugal and Spain, and we will do so, for now, separately.