The annulment under the Dutch Language Decree : if the ban on competing is eliminated, then the necessity to compensate the negative effects is also eliminated.

An employment agreement in English and the non-compete clause it contains, are absolutely void due to violation of the Dutch Language Decree.

The correction that the annulment may not negatively affect the rights of the employee, and which is provided in article 10 of the Dutch Language Decree, does not cause the absolutely void non-compete clause to become relatively void, as a result of which the employee would be able to choose between (i) appealing to the nullity and not complying with the clause, or (b) cover the nullity, while complying with the clause and granting a compensation.

What was this about ?

The respective employee claimed an additional non-compete compensation, after her dismissal for cause, based on a non-compete clause which was included in her English-language employment agreement. Also, shortly before the dismissal, the employer had already spontaneously paid part of the non-compete compensation.

The court rejected the claim of the employee based on the nullity of the non-compete clause.

The correction based on article 10 of the Dutch Language Decree does not render the nullity relative

In an interim judgement, the court already concluded that the non-compete clause in English was absolutely void due to violation of the Dutch Language Decree.

However, the employee believed that the correction which is provided in article 10 of the Dutch Language Decree and which states that the annulment may not negatively affect the rights of the employee specifically means that the nullity becomes relative, which the employee could invoke at her own discretion.

The court did not agree with the employee. The only implication of the correction that the annulment may not negatively affect the employee in any way, is that the court must make a comparison between (i) the situation of the employee in case the clause is declared void and (ii) the situation of the employee in case the clause is not declared void. If the employee is better off if the clause is not void, then the court must refrain from the annulment and apply the clause in its entirety. Conversely, if the employee is better off if the clause is void, there is no necessity for any additional correction.

The loss of the right to compensation is not disadvantageous

According to the court, all non-compete clauses serve the interests of the employer and limit the employee in his or her freedom of work, and to compensate for this and in accordance with the relevant legal rules a restitution is provided (in certain types of non-compete clauses).

For this reason, the court concluded that the annulment of the non-compete clause was thus a priori advantageous to the respective employee, given the fact that she regained her freedom to work for any employer or operate a competing company herself due to the annulment. Given the fact that the annulment subsequently does not disadvantage the employee, it had to be pronounced.

The fact that the annulment does not only eliminate the competition ban, but also its entitlement to the (in this case additional) compensatory remuneration, does not suffice to conclude a disadvantage according to the court. The remuneration was only granted as compensation in order to neutralize the adverse competition ban, though it is not an advantage in itself.

The annulment may feel like a disadvantage for the employee

The court took the clear position that if the competition ban is eliminated, the necessity to compensate the negative consequences is also eliminated.

A non-compete clause prepared in violation of the Dutch Language Decree therefore cannot offer a legal basis to claim the compensation laid down in the non-compete clause, even if the employee prefers to comply with the clause and receive compensation.

Kea Van de Walle

Dutch speaking Employment Tribunal Brussels
8 June 2017
No. 15/3217/A
unpublished