The Labor Code (consolidated text: Journal of Laws of 2022, item 1510, as amended) directly indicates several restrictions to which non-competition agreements between an employee and an employer are subject. The main limitation in the case of contracts concluded for the duration of the employment relationship and for the period after the termination of this relationship is the requirement to be in writing under pain of nullity. In addition, the limitations to which non-competition agreements are subject after termination of the employment relationship are:
- the possibility of applying the non-competition clause only to an employee who has access to particularly important information, the disclosure of which could expose the employer to damage, – the obligation to pay the employee appropriate compensation for refraining from competitive activity,
- the need to specify the duration of the non-competition agreement (it is not allowed to conclude such an agreement for an indefinite period).
The above restrictions will not apply in the case of a non-competition agreement concluded between the parties to a relationship established on the basis of a contract other than an employment contract (such as a contract of mandate, contract for specific work, contracts for the provision of services) due to the fact that these contracts are not regulated by labor law. In the case of relations other than an employment relationship, non-competition agreements may therefore be concluded on the basis of the principle of freedom of contract resulting from the Civil Code, regardless of the type of activity performed or access by one of the parties to important information. However, it should be remembered that in such situations, restrictions on the principle of freedom of contract will apply to the non-competition agreement, i.e.: the nature of the relationship, the law and the principles of social coexistence.
It is currently assumed in the judiciary that non-competition agreements after the end of a civil law relationship, unlike non-competition agreements after the termination of an employment relationship, may be gratuitous, so failure to award compensation to a person refraining from competitive activity will not always constitute a violation of the principles of coexistence social. Such a position was expressed by the Supreme Court, among others, in the judgment with reference number IV CSK 804/14. Of course, a breach will occur when the contractual provisions are clearly detrimental to one of the parties – and therefore contrary to the principles of social coexistence within the meaning of Art. 3531 in fine of the Civil Code.
In connection with the above, it should be stated that although the restrictions of the Labor Code do not apply to non-competition agreements concluded under civil law, the possibility of concluding them and shaping their scope is not unlimited.
Justyna Dabrowska
english
