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Another Restriction on Withdrawal from Non-
compete Clauses Imposed by the Supreme Court

Another Restriction on Withdrawal from Non-
compete Clauses Imposed by the Supreme Court

Czech Republic
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The Supreme Court of the Czech Republic recently issued a judgment under file no. 21 Cdo 4779/2018, in which it dealt with a situation where the employer withdrew from the non-compete clause agreed with its employee due to the fact that "it would not be proportionate or practical to enforce the agreed prohibition of competition against the employee due to the value of information and knowledge of work and technological procedures obtained by the employee in the course of employment with the employer". The said ground for withdrawal from the non-compete clause had been expressly agreed between the employer and the employee.

Nevertheless, the Supreme Court, unlike the court of first instance and the court of appeal, concluded that the withdrawal of the employer for the reason formulated above was not valid.

The Supreme Court acknowledged that after the conclusion of a non-compete clause, circumstances may arise in which an employee does not obtain information worthy of protection, and when the meaning and purpose of the non-compete clause are not fulfilled, and also acknowledged that these circumstances can be agreed as a reason for withdrawal from the non-compete clause. However, in the Supreme Court's view, an arrangement that leaves it to the employer's discretion whether an employee has obtained such information from the employer is invalid because it has the same effect as if the employer was able to withdraw from the non-compete clause without proving a reason or for any reason.

The Supreme Court thus confirmed and extended its conclusions from previous years, namely that:

(i)      an employer may withdraw from a non-compete clause agreed with an employee only for a reason stipulated by law or for a reason agreed between the employer and the employee in advance;

(ii)     the employer's right to withdraw from a non-compete clause without stating a reason or for any reason cannot be agreed;

(iii)    the specific ground for resignation agreed with the employee must not constitute "abuse of a right to the detriment of the employee".

As a result of the current judgment of the Supreme Court employers must even stop relying on being able to withdraw from non-compete clauses agreed with employees based on their subjective assessment that the employee in question did not obtain information worthy of protection through a non-compete clause in the course of the employment.

The recent direction of the Supreme Court's case law on the issue of withdrawal from non-compete clauses thus essentially prevents employers from arranging a simple and efficient reason for withdrawal from a non-compete clause, which will not be difficult to prove in court in the event of a dispute (or, even better, will prevent such disputes). It de facto means that once an employer concludes a non-compete clause with an employee, in the vast majority of cases it will not be possible to withdraw from it unilaterally later.

Thus, before entering into non-compete clauses, employers should carefully consider whether they are indeed dealing with an employee with respect to whom they will wish to maintain the obligations arising from the non-compete clause upon employment termination. In our practice, we very often encounter situations where employers, when terminating employment, are unpleasantly surprised by the fact that a non-compete clause has been concluded with the employee and they are not interested in protecting company information in this form. 

We believe that the direction chosen by the Supreme Court is extremely impractical and disproportionately protects employees at the expense of the employer to the extent that it completely ignores the possible absence of the employer's need to protect the information acquired by the employee. Who but the employer, whose information is protected by a non-compete clause, should evaluate their value and the need to protect it or lack thereof?

By Tomas Bilek, Partner, Ladislav Smejkal, Partner, and Andrea Hamorska, Counsel,  Dentons

Czech Republic Knowledge Partner

PRK Partners, one of the leading Central European law firms, has been helping clients achieve their business objectives almost 30 years. Our team of lawyers, based in our Prague, Ostrava, and Bratislava offices, has a unique knowledge of Czech and Slovak law and of the business environment. Our lawyers studied at top law schools in the United States, United Kingdom, Switzerland and elsewhere. They also have experience working for leading international and domestic law firms in a number of jurisdictions. We speak your language, too. Our legal team is fluent in more than 15 languages, including all the key languages of the region.

PRK Partners has one of the most experienced legal teams on the market. We are consistently rated as one of the leading law firms in the region. We have received many significant honours and awards for our work. We represent the interests of international clients operating in the Czech Republic in an efficient way, combining local knowledge with an understanding of their global requirements in a business-friendly approach. We are one of the largest law firms in the Czech Republic and Slovakia. Our specialised teams of lawyers and tax advisors advise major global corporations as well as local companies. We provide comprehensive legal advice drawing on our profound knowledge of local law and markets.

Our legal advice delivers tangible results – as proven by our strong track record. We are the only Czech member firm of Lex Mundi, the world's leading network of independent law firms. As one of the leading law firms in the region, we have received many national and international awards, in some cases several years in a row. Honours include the Chambers Europe Award for Excellence, The Lawyer and Czech and Slovak Law Firm of the Year. Thanks to our close cooperation with leading international law firms and strong local players, we can serve clients in multiple jurisdictions around the globe. Our strong network means that we can meet your needs, wherever you do business.

PRK Partners has been repeatedly voted among the most socially responsible firms in the category of small and mid-sized firms and was awarded the bronze certificate at the annual TOP Responsible Firm of the Year Awards.

Our work is not only “business”: we have participated on a longstanding basis in a wide variety of pro bono projects and supported our partners from the non-profit sector (Kaplicky Centre Endowment Fund, Tereza Maxová Foundation, Czech Donors Forum, etc.).

Firm's website: www.prkpartners.com

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