Acceso usuarios
Emanuele Menegatti
Employment contracts’ covenants not to compete fulfil, like in all jurisdictions, the function of extending employees’ loyalty after the termination of the employment contract. More in particular, the inhibition of the use of workers’ professional skills by former employees in favor of competitors is achieved in two ways: by sanctioning the former employee who, violating the restrictive covenant, carries out activities in competition with the former employer and, before that, by “suggesting” the employee not to leave the company since her mobility will be limited by noncompete.
The Italian regulation of non-competes is entirely included in Article 2125 of the Civil Code, which current formulation still coincides with the original version enacted in 1942. Throughout the term of the employment contract, loyalty is granted by the obligations laid down in Article 2105 of the Civil Code, having the purpose of permitting the employer an (almost) exclusive use of employees’ skills and know—how. Though both Civil Code Articles 2105 and 2125 deal with restrictions to employees’ competition, they respond to different rationales.
The duty not to compete as a part of employment obligations contributes to ensure the sound functioning of the market, where enterprises fairly compete without taking advantage of competitor’s “insiders,” just like employees. On the contrary, postemployment negotiated restrictions hinder the free market system, preventing, for example, the creation of new start-ups by former employees and impeding the acquisition of the best human resources by competitors.
