Non-competition clause

Legal guide

automatic translation from Polish

Non-competition agreement

From a formal point of view, the prohibition of competition can only be included in a separate agreement, which results from the wording of Art. 1011 § 1 of the Labor Code. This means that it should not constitute one of the provisions of the employment contract placed under it, but must take the form of a separate document containing the declarations of will of the parties. In accordance with art. 1013 of the Labor Code, such an agreement must be, in pain of nullity, concluded in writing - it is therefore not allowed to reserve a prohibition of competition orally or a unilateral written statement by the employer. Moreover, according to the established line of case-law (see, e.g., the Supreme Court's judgment of 20 August 2009, reference number II PK 41/09), appointing an employee to the scope of his duties under an existing employment relationship cannot be considered the same with the conclusion of the non-competition agreement.

As a rule, the non-competition clause is concluded alongside the employment contract and applies in parallel with it. Its duration may not exceed the duration of the employment relationship, which will terminate automatically resulting in the expiry of the contract. An exception to this rule is the non-competition agreement after termination of employment. This is a special form of the non-competition agreement, which on the one hand may last even when the employer and employee are no longer bound by the employment relationship, but on the other, they are subject to a number of additional requirements. The first of them determines in what situations such an agreement may be concluded at all - in accordance with art. 1012 § 1 of the Labor Code, it is admissible only if the employee with whom it is concluded has access to particularly important information, the disclosure of which could expose the employer to harm. The terms used in this provision should be considered ambiguous and indeterminate, but they allow us to assume with certainty that such an agreement should not be concluded with an employee who does not have access to any sensitive information or secrets of the employer's enterprise. In addition, pursuant to art. 1012 § 1 and 3 of the Labor Code, during the period of non-competition, the employee is entitled to monthly compensation paid to the employer in the amount of at least 25% of his remuneration received before termination of employment.