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You may encounter non-compete clauses in various areas of life, whether as an employee, a board member or a shareholder. We will give you a brief overview.
employees
Art. 321a OR regulates the employee's duty of care and loyalty. The employee must carry out the work assigned to him carefully and protect the legitimate interests of the employer in good faith, Art. 321a Para. 1 OR. During the term of the employment relationship, the employee may not perform any work for a third party for remuneration if doing so would violate his duty of loyalty, in particular if he competed with the employer, Art. 321a Para. 3 OR. These obligations generally apply for the duration of the employment relationship. However, it is possible to agree on a post-contractual non-competition clause in accordance with Art. 340 ff OR. Such a non-competition clause must, among other things, be agreed in writing and be appropriately limited in terms of space, time and location.
administrative boards
Article 717, paragraph 1 of the Swiss Code of Obligations states that members of the board of directors and third parties involved in the management of the company must perform their duties with the utmost care and protect the interests of the company in good faith. In practice, this results in a prohibition of competition during the term of office of the board of directors. It is possible that, in addition to Article 717, paragraph 1 of the Swiss Code of Obligations, Article 321a of the Swiss Code of Obligations also applies to a board of directors.
shareholders
The law does not stipulate a statutory duty of loyalty or even an explicit prohibition of competition for shareholders. If a shareholder is a member of the board of directors and/or an employee, the relevant provisions apply. In addition, it is possible to subject shareholders to a prohibition of competition by including corresponding provisions in a shareholder agreement. Such a prohibition of competition is not subject to the strict requirements of Art. 340 ff. OR, but is usually examined on the basis of whether it creates an excessive obligation within the meaning of Art. 27 para. 2 ZGB.
When drafting non-compete agreements, care should be taken to ensure that they have the desired effectiveness and can be enforced if necessary.
If you have any questions or need support, please feel free to contact us.
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Note: This article was published on our blog by the independent law firm « Martin Rechtsanwälte GmbH ».
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