Non-competition: During the legal existence of an employment relationship, the employee is generally prohibited from engaging in any competitive activity to the detriment of his employer, even if the individual employment contract does not contain any express provisions on this. For agents, this principle is set out in Section 60 Para. 1 HGB is expressly regulated.
According to the established case law of the Federal Labor Court, this provision specifies a general legal idea that is based on the employee’s duty of loyalty and therefore establishes a non-competition clause in the employment relationship beyond the personal and factual scope of § 60 HGB. In its judgment of September 20, 2006 (- 10 AZR 439/05 -), the Tenth Senate decided that the non-competition clause derived from general legal principles also applies to a trainee during the duration of the vocational training relationship. This person is also not allowed to compete at the expense of the employer providing the training for the duration of the vocational training relationship.
With its judgment of March 8, 2006 (- 10 AZR 349/05 -), the Tenth Senate confirmed its previous case law that a post-contractual non-competition clause can be repealed by mutual agreement at any time. Cancellation is also possible through a compensation clause in a cancellation agreement or a court settlement, without it having to be made separately. The legal quality and scope of a compensation clause must be determined by interpretation according to the rules of Sections 133 and 157 of the German Civil Code (BGB). In the interest of clarity, a compensation clause must generally be interpreted broadly.