Question of social right. The principle of the freedom of trade and industry is the result of the decree of Allarde of 2 and 17 march 1791 (abolishing corporations), according to which ” it will be free for any person to carry on a particular profession, art, or profession he will find good “. It has the same constitutional value, according to the decision of the constitutional Council, 16 January 1982, enshrining the freedom of entrepreneurship.
But for an employee the freedom to take a limit in the obligation of loyalty towards the employer. The obligation to perform the employment contract of good faith contained in article 1104 of the civil code as article L. 1222-1 of the labour code, in effect means that the employee must not cause harm to the employer, such as by exercising an illicit competition.
It is possible, for example, for an employee to develop the constitution and register a company which has the vocation to compete with his employer. On the other hand, the fact of working for his own account with a customer of his employer, in which the latter is already a construction site, is a breach of his duty of loyalty and is described as serious misconduct justifying dismissal.
in addition, when an exclusivity clause contained in the contract of employment, the employee may be unable to undertake during his / her contract of employment, even for a non-competitor. To be valid, this clause must, however, in view of its scale and effects, be indispensable to the protection of the legitimate interests of the company, justified by the nature of the task to be performed and proportionate to the aim sought.
Limited and “reasonable”
After the end of the employment contract, freedom of enterprise the employee may also be limited for a business in competition with his employer, by means of a non-competition clause included in the contract. If the employee creates at his company,…