Employer’s Claim regarding Compliance with Confidentiality Clause Rejected

When an employee took up employment with a competitor, his former employer claimed in summary proceedings that the employee would comply with the confidentiality clause in the employment contract and that the employee would forfeit a penalty if he would disregard it. Since, however, there was no evidence that the employee had violated the confidentiality clause, the claims were rejected.
After twelve years of employment at a wholesale of construction materials, an employee terminated the employment contract. The employment contract contained a non-competition clause and a confidentiality clause, be it without a penalty clause in both clauses. The employer had a suspicion that the employee, violating the non-competition clause, had entered into the employment of a competitor. He had an investigation agency carry out an investigation. This lead to summary proceedings before the Sub-district Court, in which the employer argued that, in violation of the non-competition clause, the employee had entered into the service of the employer's major competitor and in which the employer claimed compliance with the non-competition clause and the confidentiality clause on pain of forfeiture of a penalty. The employee stated, however, that he had not started working for the competitor, but for the competitor’s sister company and that he did not violate the non-competition clause and the confidentiality clause. Then the Sub-district Court rejected the claim for compliance with the non-competition clause, but it ordered the employee to comply with the confidentiality clause on pain of forfeiture of a penalty of € 2,500 per day.
The employee lodged an appealed against this judgment with the Court of Appeal.
First and foremost, the Court of Appeal stated that it was up to the employer to demonstrate the plausibility of the violation of the confidentiality clause by the employee or of his intention to do so. To this end, the employer had stated that the employee had entered the service of his major competitor and hence, that this had created a considerable risk that the employee would violate the confidentiality clause. The employee knew the employer's prices and, according to the employer, he continuously received signals that the employee approached the employer's customers. He underlined his statement with two specific examples.
The employee disputed the accusation that he approached customers of the employer and he stated that the knowledge of the prices was outdated, due to the rapid change in the prices of construction materials. The employee also contested he two examples, explaining the reasons why they were incorrect.
The Court of Appeal ruled that it was in the employer's interest that the employee would not share competition-sensitive information with his new employer and, for that reason, that he should comply with the confidentiality clause. An order to comply with the confidentiality clause was of no interest for the employer because the employee was already obliged to do so under the employment contract. There was also no reason to attach a penalty to non-compliance with the clause, since the employer had not provided any evidence of violation of the confidentiality clause to the contrary of the employee's contest.
In summary proceedings there was also no room for further provision of evidence.
On the other hand, it was in the employee's interest that the penalty will not be imposed, since otherwise he could too easily face enforcement actions. This was what had already happened after the judgment of the Sub-district Court.
The Court of Appeal therefore annulled the Sub-district Court’s judgment regarding its order that the employee should comply with the confidentiality clause on pain of a penalty.

Clauses such as a non-competition clause, a prohibition on ancillary activities, insofar as they are still permitted, and a confidentiality clause are toothless without a penalty attached.
In that case, the employer may take action against violation of the clause, but not without also demonstrating that he suffers damage as a result of the violation of the clause.
In practice, however, it may be very difficult to achieve.
Of course, the employer can try to have the employee ordered to comply with the clause in summary proceedings, under forfeiture of a penalty payment. In that case, the forfeiture of the penalty payment can be claimed instead of a penalty when there is an alleged violation. Payment of the penalty payment can immediately be enforced by the bailiff then, and it would be up to the employee to demonstrate to the Court in summary proceedings that the clause has not been violated. But it is a requirement for such a conviction that the clause actually has been violated or will likely be violated.
In the above case, however, there was no penalty clause.
Therefore, the Court of Appeal pointed out that the confidentiality clause had been drawn up by the employer and that it was at the account and for the risk of the employer that no penalty clause had been included.
In short: You must lie in your bed the way you made it.