No compensation for unintentional withdrawal from post-contractual non-compete clause BAG 31.01.2018 - 10 AZR 392/17

The plaintiff employee had agreed a three-month non-competition clause in his employment contract with the defendant in the event of termination of the employment relationship, which prohibited him from working for the competition during this period. In return, the plaintiff was to receive compensation in the amount of 50% of his last average monthly salary. This last amounted to EUR 6,747.20 gross. The employment relationship ended at the end of January 31, 2016 due to the plaintiff's own resignation. The plaintiff requested the defendant to pay the waiting allowance for the month of February by email on March 1, 2016, setting a deadline of March 4, 2016. The defendant let this deadline pass, whereupon the plaintiff sent a second - fatal - email to the defendant:

"With reference to your email of 1 March 2016 and the telephone call with Mr. B., I would like to inform you that I no longer feel bound by the non-competition clause with immediate effect."

After the defendant still did not make any payment, the plaintiff went to the labor court and demanded payment of the compensation for non-competition for all three months in the total amount of EUR 10,120.80 plus interest. The plaintiff was of the opinion that he had not effectively released himself from the agreed post-contractual non-competition clause. The statement in the second email was purely an act of defiance. The defendant was of the opinion that the plaintiff had effectively declared his withdrawal from the post-contractual non-competition clause.

The labor court upheld the claim in full. On the defendant's appeal, the Regional Labor Court partially amended the ruling and awarded a claim to compensation for non-competition only for the period from February 1 to March 8, 2016. It dismissed the remainder of the claim.

The plaintiff's appeal to the BAG was unsuccessful. The BAG confirmed the judgment of the LAG in full. The post-contractual non-competition clause constitutes a mutual contract to which the general rescission provisions apply. The compensation for non-competition represents the consideration for refraining from competitive activity. If one party to the contract fails to perform, the other party may withdraw from the non-competition clause if the statutory requirements are met. The defendant was in default of performance. According to the plaintiff's submission, the defendant also seriously and definitively refused performance. The requirements for a withdrawal according to § 323 BGB were therefore met. The plaintiff's declaration in his email of 8 March 2016 therefore constitutes a declaration of withdrawal. The defendant was entitled to understand it as such and did not have to regard it as a non-binding "defiant reaction". The declared withdrawal takes effect "ex nunc" - the reciprocal obligations therefore only cease to apply from the time after receipt of the declaration to the defendant.

Date: 7. Feb 2018