Facts
B. AG (plaintiff, respondent) with its registered office in the canton of Lucerne operates a coffee roastery and wholesale trade in foodstuffs. It employed A. (defendant, appellant) as a marketing assistant. The employment contract contained a non-competition clause that prohibited any competitive activity.
After termination of the employment relationship, the defendant was employed by C. GmbH, which also sells coffee and hot beverages. The plaintiff then filed a claim for payment of the contractual penalty for violation of the non-competition clause.
The Federal Supreme Court partially upheld the defendant's appeal and remanded the case to the cantonal court for re-assessment.
Considerations
Pursuant to Art. 340 para. 1 CO, an employee may contractually commit in writing to refrain from any competitive activity after termination of the employment relationship. The non-competition clause is only binding if the employee's employment relationship provided insight into the customer base or manufacturing and business secrets, and the use of this knowledge could significantly harm the employer.
The non-competition clause must be reasonably limited in terms of location, time and subject matter, so that an unreasonable impediment to the employee's economic advancement is excluded. The court…